Will the tort system function better if special courts are established to hear particular kinds of claims? For certain classes of difficult cases, specialized courts may yield one or both of the following benefits. First, they may achieve administrative efficiencies that will move cases through the judicial system faster or at lower cost. The pursuit of such efficiencies appears to be the main reason that 10 states (as of August 2000) have created courts focusing on business or complex litigation.12 Second—as advocates of the creation of special courts to hear medical malpractice claims argue—assigning certain types of complex cases to judges with particular expertise in a subject may improve the quality of case outcomes.13 The idea is that judges who have experience or specialized training can more accurately interpret scientific or technical issues (in the terms discussed in Chapter 3, lower the cost of information), provide more consistent application of the law, or both.
One potential argument against specialized courts is that to the extent that they make the process of litigation more efficient, they may encourage additional plaintiffs to bring suits. Indeed, some analysts argue that efforts to streamline asbestos cases (in part by consolidating claims for trial) “actually increased the total dollars spent on the litigation by increasing the numbers of claims filed and resolved.”14 In addition, a tension exists between using judges with special areas of expertise to improve case outcomes and the tradition and values of using nonspecialist juries.
12. National Center for State Courts, “Focus on Business and Complex Litigation Courts,” Civil Action: A Briefing on Civil Justice Reform Initiatives, vol. 1, no. 1 (August 2000), available at www.ncsconline.org/wc/publications/Res_SpePro_CivilActionV1N1pub.pdf
13. See the remarks of Philip K. Howard before the Common Good forum, “Beyond Patients’ Rights: Do We Need a New System of Medical Justice?” hosted by the AEI/Brookings Joint Center for Regulatory Studies, Washington, D.C., April 24, 2002, available at http://cgood.org/medicine/item?item_id=3390.
14. Stephen J. Carroll and others, Asbestos Litigation Costs and Compensation: An Interim Report (Santa Monica, Calif.: RAND Institute for Civil Justice, 2002), p. 26.