Litigation Migrants

• DOI: http://doi.org/10.1111/ablj.12138
• Date: 01 June 2019
• Author: Charlotte S. Alexander
• Published date: 01 June 2019

American Business Law Journal

Volume 56, Issue 2, 235–286, Summer 2019

Litigation Migrants

Charlotte S. Alexander*

Civil law is enforced primarily via private litigation. One characteristic of pri-

vate enforcement is that litigation levels tend to cycle between periods of boom

and bust. This article builds a theory for explaining this fluctuation, proposing

that plaintiffs’ attorneys can be understood as economic migrants. Just as

workers cross borders to find jobs, lawyers “move” across case types and jurisdic-

tions to find profitable claims, and case filing numbers i ncrease as a result.

Using the recent wage and hour litigation boom as a case study, this article

paints an empirical picture of attorney migration and its influence on case filing

numbers.

INTRODUCTION

Private litigation drives civil law enforcement in the United States. This is

a “bottom up” system in which the victim of an alleged civil wrong sues

*Associate Professor of Legal Studies, Depa rtment of Risk Management and Insurance,

J. Mack Robinson College of Business, Georgia State University; secondary appointment,

Georgia State University Col lege of Law. This research was funded in part by a grant fr om

the Center for the Economic Analysis of Risk at Georgia State Univ ersity. Thanks to the

participants in Vanderbilt’s Law and Eco nomics Ph.D. workshop and the 2018 Conference

on Empirical Legal Studie s—especially Josh Fisc hman—for their valuable feedbac k at

early stages of this proje ct. Thanks also to the many col leagues and friends who pro vided

commentary and assistan ce: Brett Bartlett, Rachana Bhatt, Christi na Boyd, Derek Braziel,

Gio Cosentino, Glenn Har rison, Erik Helland, Mar c Linder, Nantiya Ruan, Margo

Schlanger, Emily Spieler, and Kevin Young. I am also grateful to the student researc h

assistants who worked on var ious aspects of this proje ct: Jennifer Feld, Sunmi Hirata ,

Anqi Jiao, Rodrigo Canci no Martinez, Nicole Weitnauer, Pallavi Srinivas, Sid dhanth

Maharana, Monica Shen, an d Rwanda Smith—and to the law librarians who helped lo cate

relevant data—Pam Bran non and Meg Butler. Finally, thanks to Gwendolyn Cole man of

the Administrative Offic e of the U.S. Courts for her help in accessing historic al federal

court case filing data.

©2019 The Author

American Business Law Journal ©2019 Academy of Legal Studies in Business

235

the wrongdoer.

1

Although government agencies do engage in some “top

down” enforcement via investigations, lawsuits, and civil penalties, the

enforcement function is primarily accomplished by private plaintiffs fil-

ing private lawsuits.

2

One feature of this system—or bug, depending on one’s perspective—

is that private lawsuit filings tend to cycle between periods of boom and

bust.

3

Scholars have attempted to understand these fluctuations as a

function of plaintiffs’ and their lawyers’ expected economic gains

from litigation,

4

of noneconomic factors such as plaintiffs’ “legal

consciousness,” or their knowledge of the law and sense of themselves as

law enforcers,

5

and of “broad-scale sociocultural forces” that create

litigation-favorable or unfavorable climates.

6

These analyses have then

become fodder for normative judgments about litigation levels; proposals

1

Charlotte S. Alexander & Arthi Prasad, Bottom-Up Workplace Law Enforcement: An Empirical

Analysis,89I

ND. L.J. 1069, 1070–71 (2014) (describing the private litigation-based enforce-

ment system as “bottom up”); see also John C. Coffee, Jr., Rescuing the Private Attorney Gen-

eral: Why the Model of the Lawyer as Bounty Hunter Is Not Working,42M

D.L.REV. 215, 218

(1983) (discussing the use of “private litigation as a mechanism of law enforcement”).

2

SEAN FARHANG,THE LITIGATION STATE:PUBLIC REGULATION AND PRIVATE LAWSUITS IN THE U.S.

10–13 (2010) (discussing the wide variety of federal statutory protections that are primarily

enforced via private litigation).

3

David Freeman Engstrom, Private Enforcement’s Pathways: Lessons from Qui Tam Litigation,

114 COLUM.L.REV. 1913, 1921 (2014) (describing litigation fluctuations, which some critics

view as “lurches from socially inefficient ‘explosions’ to equally costly ‘droughts’”).

4

FARHANG,supra note 2, at 22–23 (capturing workers’ cost–benefit analysis as EV = EB(p) – EC,

where EV is the expected value of a legal claim, EB is the expected benefit, multiplied by the

probability of winning that benefit, and EC is a deduction for the cost of achieving the desired

outcome).

5

Catherine R. Albiston, Legal Consciousness and Workplace Rights,in NEW CIVIL RIGHTS

RESEARCH:ACONSTITUTIVE APPROACH 55, 56 (Benjamin Fleury-Steiner & Laura Beth Nielsen

eds., 2006) (defining legal consciousness as “the dynamic process through which actors

draw on legal discourse to construct their understanding of and relation to the social world,

but that process takes place within a social context already structured in part by the law

itself ”); see also Freeman Engstrom, supra note 3, at n.38 (collecting scholarship on noneco-

nomic drivers of litigation).

6

Freeman Engstrom, supra note 3, at 1926 & n.36 (collecting scholarship on sociocultural

contributors to litigation levels).

236 Vol. 56 / American Business Law Journal

to fix either the under- or overenforcement of civil law, and legislative,

administrative, and judicial, responses.

7

This article intervenes in this literature by suggesting a new theoretical

framework for understanding the role that plaintiffs’ attorneys play in driving

litigation. It adopts the broad view of plaintiffs’ attorneys as economic actors

8

but proposes specifically that lawyers’ behavior can best be understood as that

of economic migrants. Just as workers cross borders to take on better paying

jobs, plaintiffs’ lawyers “move” across case types and jurisdictions to take on

claims that are the most viable, and profitable, on the margin. Early migrants

communicate their successes through their networks, prompting follow-on

migration waves, and case filing numbers increase as a result.

Lawyer behavior, and its relationship to litigation levels, is both under-

studied and undertheorized.

9

As David Freeman Engstrom has observed,

“[w]hat drives the volume and nature of lawsuits in litigation regimes? That

question is of enormous practical importance to the optimal design of regu-

latory regimes that deploy private litigation as an enforcement tool—from

securities andantitrust to civil rights and consumerprotection.”

10

This article does not attempt to provide a complete answer to Freeman

Engstrom’s question or to construct a grandtheory of litigation’s role in civil

7

Compare, e.g., MARTIN H. REDISH,WHOLESALE JUSTICE:CONSTITUTIONAL DEMOCRACY AND THE

PROBLEM OF THE CLASS ACTION LAWSUI T 20 (2009) (critiquing private litigation, and the

class action device in particular, as antidemocratic and constitutionally suspect) with

Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the

Enforcement of Civil Rights, 100 COLUM.L.REV. 1384, 1387–88 (2000) (offering a positive

view of private enforcement); see also Freem an Eng strom , supra note 3, at 1920 n.18 (col-

lecting scholarship).

8

John Coffee is the leader in this field, having published numerous articles since the 1980s

and a recent book that explores and evaluates the role of entrepreneurial private attorneys

in securities litigation. See, e.g., Coffee, supra note 1 (exploring private attorneys’ role in

securities litigation); JOHN C. COFFEE,JR., ENTREPRENEURIAL LITIGATION:ITS RISE,FALL,AND

FUTURE (2015) (exploring private attorneys’ role in securities litigation); see also Freeman

Engstrom, supra note 3 (exploring private attorneys’ role in qui tam litigation); David A.

Hyman & Charles Silver, Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stu-

pid,59V

AND.L.REV. 1085, 1120 (2006) (e xploring private attorneys’ role in medical mal-

practice litigation); Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency

Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. PA.L.REV. 103 (2006) (explor-

ing private attorneys’ role in civil rights litigation).

9

Freeman Engstrom, supra note 3, at 1924 (“[F]ew studies offer sustained theoretical analy-

sis of the forces that shape private litigation efforts over time.”).

10

Id.

2019 / Litigation Migrants 237