Civil procedure reform
Although the US legislature is currently FUBAR, I think there’s still a lot of low-hanging fruit in lobbying at the state/local level, as well as in smaller countries with less dysfunctional politics. My guess is that the biggest wins per hour invested come from “pulling sideways”, or choosing issues that are objectively important, but lack the strong partisanship and entrenched battle lines of something like gun control or abortion. One candidate that looks promising to me, but that hasn’t been discussed that much, is reforming the rules of civil procedure.
Some might remember how Peter Thiel funded Hulk Hogan’s privacy lawsuit against Gawker, which led directly to Gawker’s bankruptcy. When that story broke, a few commenters talked about how screwed up it was that Thiel’s sponsorship was even necessary. Hulk Hogan is world famous, and although his net worth isn’t public, he’s probably rich by any normal standard. Why couldn’t he just sue Gawker by himself? Although I haven’t read any formal studies here (links appreciated), it looks like pursuing a major lawsuit is now so complex and expensive, requiring so many lawyer-hours, that even normal rich people can’t do it. There are also numerous cases of suits dragging on for years and years and years, eg. the Exxon Valdez spill in 1989: “Litigation was filed on behalf of 38,000 litigants. In 1994, a jury awarded plaintiffs US $287 million in compensatory damages and US $5 billion in punitive damages. Exxon appealed and the Ninth Circuit Court reduced the punitive damages to US $2.5 billion. Exxon then appealed the punitive damages to the Supreme Court which capped the damages to US $507.5 million in June, 2008. On August 27, 2008, Exxon Mobil agreed to pay 75% of the US $507.5 million damages ruling to settle the 1989 Exxon Valdez oil spill off Alaska. In June 2009, a federal ruling ordered Exxon to pay an additional US $480 million in interest on their delayed punitive damage awards.” ( Wikipedia: Exxon Valdez ) This delay hurts the plaintiffs, who had to wait decades (!) for their money, but it can also hurt defendants. If a very rich person wants to hurt you, they can say “do whatever I want now, or I’ll sue”. Even if the suit is meritless, the expense and work of defending it can basically force you to agree to the rich person’s terms. This was the basis of Prenda Law’s “porn trolling” scheme, where attorneys extorted thousands of people by threatening frivolous lawsuits for downloading porn ( Ars Technica on the Prenda Law arrests ).
However, the real damages come not from each individual case, but the indirect effects of a dysfunctional legal system, which pervade all of society. Every company’s behavior is affected by its legal environment, and when that includes cheating people because they can get away with it, or enacting stupid rules to reduce frivolous litigation risks, the customers and employees suffer. In extreme cases, you see things like Tim Harford’s description of why Cameroon is dirt poor: “The rot starts with government, but it afflicts the entire society. There’s no point investing in a business because the government will not protect you against thieves. (So you might as well become a thief yourself.) There’s no point in paying your phone bill because no court can make you pay. (So there’s no point being a phone company.) There’s no point setting up an import business because the customs officers will be the ones to benefit. (So the customs office is underfunded and looks even harder for bribes.) There’s no point getting an education because jobs are not handed out on merit. (And in any case, you can’t borrow money for school fees because the bank can’t collect on the loan.)”
Settling a dispute fairly, of course, requires some amount of work to collect evidence and reach a decision. However, I strongly suspect this “inherent cost” is usually far, far lower than current costs, as there are few outside forces to keep things cheap. Civil court rules are made by people (judges and legislators) with no financial stake in outcomes, so there is little market pressure. And they are usually so obscure that the only people who’d notice changes are attorneys, who of course have a vested interest in making cases longer and costlier. (Other than lawyers, who has a strong opinion on eg. the Daubert standard vs. the Frye standard for expert witness testimony?) One place that’s gotten enough attention for reforms to have succeeded is libel litigation, where new rules called SLAPP motions allow suits trying to silence speech through legal intimidation to be dismissed with an expedited procedure ( Popehat on anti-SLAPP laws ). But even there, things vary a lot state-to-state, so there’s much more work to be done.
In addition, many of the relevant rules are dozens or hundreds of years old, and there’s no general system for updating them based on modern technology or scholarship. AFAICT, nobody has ever sat down and tried to quantify “okay, what rules give the highest additional probability of a correct judgment per marginal legal dollar spent”, largely because when courts were created, the ideas of “marginal cost” and “expected utility” hadn’t been invented yet. (Various papers touch on the idea, but none that I’ve found so far try to even guess real numbers.) On the criminal law side, a few people have now summarized (see Nathan Burney’s law comic for a quick overview, or Judge Kozinski’s Georgetown Law Journal preface for a detailed paper) how things like jury instructions assume principles that are now known to be false, like that human memory is much better than it really is. Hence, I think it’s very likely that new rules could achieve a much higher benefit/cost ratio, and many current rules might well be net negative.
There have been some promising attempts to address this through better arbitration services, essentially a private alternative to courts (eg.
this Hacker News thread ). While this seems worthwhile, it’s limited by the main customers for arbitration (big corporations), who want to use it as a blanket shield against all possible liability. This then runs into the same problems as before, where the companies can’t be trusted, so people won’t trade with them, so the wider economy suffers, etc. Therefore, the big wins here would come from a political process, to the extent that’s still possible nowadays.