Consumer Law

Judicial Hellholes, Debunked

By Deepak Gupta

by Deepak Gupta

Those of us who regularly read amicus briefs by the likes of the U.S. Chamber of Commerce and other self-styled tort reform groups are used to seeing references to "judicial hellholes" -- jurisdictions that supposedly embody a "lawsuit climate" hostile to corporate defendants accused of cheating or injuring consumers.  For many years, the American Tort Reform Association has compiled a pseudoscientic annual ranking of these jurisdictions, with perennial favorite West Virginia topping the list. The lists are used not only in amicus briefs--which often suggest that the decision below is suspect because it came from such a jurisdiction--but also to help influence legislative policy.

In 2005, Public Citizen's Congress Watch released a short report, Class Action "Judicial Hellholes": Empirical Evidence Is Lacking, showing that the hellholes rankings were not backed by any actual evidence and therefore provided no justification for proposed class-action legislation. More recently, Professor Elizabeth Thornburgh (SMU Law) has published an interesting new law review article, Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia, offering a more detailed account of ATRA's "hellholes" campaign, focusing on West Virginia. My favorite part is the section that starts on page 26, "Smoke and Mirrors: The Marketing of Anecdotes," in which Thornburgh colorfully illustrates four different deceptive strategies that ATRA has used to support its "hellhole" designation of that state: treating opinions as facts; grossly distorting quotations by former West Virginia Supreme Court Justice Richard Neely; misstating the issues; and leaving out bad facts entirely. It's worth a read.

Full post as published by CL&P Blog on April 02, 2009 (boomark / email).