Empirical Tort Law (and Theory)

In this essay to honor Deborah Hensler, we summarize an update to her classic study on claiming behavior and explore its policy implications. More specifically, we empirically document how those with significant medical conditions utilize the civil liability system, particularly in terms of making claims against others, seeking the advice of legal professionals, and initiating litigation. We find that few who are injured or fall ill believe that another party is responsible, and even among that group, relatively few seek compensation against that party. Still fewer contact attorneys or file a lawsuit. Our findings have implications for the social welfare system, the role of tort law, and the way the selection of cases shapes the common-law. In particular, the significant non-random winnowing of the universe of harms litigated we observe can result in normatively undesirable path-dependence in the evolution of the common law.