Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of the Tort System

The thesis of this Article is that while the modern plaintiffs\u27 bar serves a crucial regulatory function in American public policy, the way we regulate the regulators warrants attention and perhaps even revision. The modern plaintiffs\u27 bar began in what its progenitors described as a movement to defend the rule of law against the administrative and bureaucratic incursions of the twentieth-century state. The chief villain in the early years of the plaintiffs\u27 bar was the bureaucratic state functionary. Vested with substantial discretionary authority and subject only loosely—if at all—to the traditions and constraints of law, the bureaucrat seemed to threaten the rule of law traditions of Anglo-American governance. Leading spokesmen of the plaintiffs\u27 bar contended that the bureaucrat was akin to a little dictator. And yet today, the American plaintiffs\u27 tort bar has a rule of law problem of its own. In many areas of American personal injury practice, tort law has given rise to a far-flung, decentralized, and often virtually invisible private bureaucracy. In that vast administrative system, the plaintiff\u27s representative has come to enjoy some of the same discretionary authority that plaintiffs\u27 lawyers criticized in public bureaucrats of the welfare state. In some important respects, the plaintiffs\u27 bar is remarkably unconstrained. Plaintiffs\u27 personal injury lawyers typically work for relatively powerless clients, under ineffective ethical canons, and without meaningful monitoring by bar associations or other professional organizations. Moreover, trial lawyers operate in a market for legal services that is, at best, relatively disorganized and, at worst, perversely organized to serve the bar\u27s interests rather than the interests of personal injury victims