Access to Justice (A2J)

The civil justice system is in the grip of a profound access-to-justice crisis. In three-quarters of the 20 million civil cases filed annually in state courts, at least one side lacks a lawyer. And that’s just the tip of the iceberg. Beneath these pro se litigants we see lie millions of Americans with serious legal problems who remain invisible: countless Americans never take any legal action to protect their interests or vindicate their rights.

One strand of my recent work seeks to understand how we got to this point. The Making of the A2J Crisis, co-authored with David Freeman Engstrom and published by the Stanford Law Review, examines the crisis’s historical roots. Using the best available evidence, the piece offers a snapshot of the contemporary civil justice system and explains that today’s courts—choking on evictions and debt collection actions and inundated by default judgments—are no longer where people act. They are, instead, where individuals are acted upon. The piece then offers various explanations for how we got here and explains that some conventional culprits (such as declining legal aid funding or individuals’ increasing desire to go it alone) lack currency. Ultimately, the piece chalks the current crisis up to two prime factors. The first we call “poverty eligibility”: the fact that many Americans, burdened by rising consumer debt, cannot weather any blow to their finances. The second we dub “technology’s affordances and asymmetries.” It refers to the fact that corporate and institutional plaintiffs are using generative AI and other high-tech mechanisms to supercharge their capacity, while individuals are still litigating in an analog age.

Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, co-authored with James Stone and published in the Yale Law Journal, excavates the history of America’s auto clubs to illustrate how bar associations have long used unauthorized practice of law (UPL) bans to stymie the delivery of affordable legal services. In the early 1900s, the AAA didn’t just offer roadside assistance, maps, and towing services; it also provided a wide array of legal services, free to its members. But, during the Great Depression, bar associations ruthlessly targeted these legal departments, accusing them of violating nascent UPL rules. The result? Auto club’s once bustling legal departments were shuttered, and millions of Americans were condemned to address their auto-related legal problems on their own, without assistance. The piece zooms out, far beyond the automobile context, to show that the thicket of rules that continue to stymie the delivery of legal services has deeply protectionist roots.

Another piece, recently published in the Michigan Law Review, entitled Legal Insurance and Its Limits, exploring whether legal insurance—a solution that some herald as a way to expand access to justice for middle- and working-class Americans—holds promise. Ultimately, drawing on a range of disciplines—including insurance law (particularly insights concerning moral hazard and adverse selection), behavioral economics, legal ethics, legal history, and the legal profession—this Article explains why the legal insurance idea floundered, and seems destined to flounder, going forward.

With the A2J crisis reaching new heights, reform (both modest and sweeping) appears imminent. In a new edited volume, titled Rethinking the Lawyers’ Monopoly: Access to Justice and the Future of Legal Services, recently published by Cambridge University Press, I explore the transformative potential of regulatory reform. In the volume, David Freeman Engstrom and I pull together experts from a wide range of disciplines—and with a wide range of perspectives—to examine possible paths forward. And, in 2026, I, along with Natalie Anne Knowlton, published a piece, entitled Unauthorized Practice: Assessing Available Evidence, that evaluates the quality of representation furnished by nonlawyer providers.

The Deborah L. Rhode Center on the Legal Profession, which I am proud to co-direct, is a national leader in promoting access to justice. For more on the Rhode Center’s pathbreaking work in this sphere, see this useful Legal Regulatory Innovation Toolkit.

Tort Law

The American tort system is a lightning rod for criticism. Cutting through conflicting cries concerning profits and power, my work explores how the tort system works in the real world and the benefits it confers (and, sometimes, fails to confer) on clients and the broader public.

My inquiry into the tort system’s day-to-day operation is multifaceted. Part of it focuses on how cases are financed. Both Lawyer Lending: Costs and Consequences and Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape Again consider new forms of third-party litigation funding and assesses the myriad ethical concerns these funding streams raise. A second strand of this inquiry focuses on how injured clients find (or struggle to find) attorneys to bring their claims—and also how clients pay for the services they obtain. For instance, in a piece titled “Competition and Contingency Fees,” published in the Georgetown Law Journal, I, along with co-author Brianne Holland-Stergar, untangle a puzzle concerning the contingency fee’s resistance to typical market forces. Then, a third strand of this inquiry focuses on the personal injury lawyers at the center of the system—and particularly high-volume personal injury firms I call “settlement mills.” I detail the operation of these forms—and analyze the critical ethical concerns they raise—in Sunlight and Settlement Mills and Run-of-the-Mill Justice.

Much of my work also interrogates the core purpose of the tort system. In Tort Theory and Restatements: Of Immanence and Lizard Lips, I, along with co-author Michael Green, argue that any quest for a grand tort law theory is bound to fall short. Yet, while I believe that any pursuit of a grand theory is apt to founder, in a series of pieces, I argue that certain benefits of the tort system haven’t gotten their due.

One important and long overlooked benefit of the tort system is its “information-forcing function.” This information-forcing idea posits that tort law indeed promotes safety. But it does so not exclusively, and perhaps not even mostly, via the much-discussed theory of cost internalization that prominent law-and-economics scholars have long championed. Rather, tort law operates in large part through its informational effect. The idea is that plaintiffs’ lawyers—decentralized, well resourced, and well incentivized by the contingency fee—are uniquely positioned to connect dots, follow leads, depose insiders, and pry damning documents out of company vaults. And these lawyers’ persistent efforts yield vital information that both promotes sensible regulatory activity and ensures that corporate reputations reflect reality, steering consumers toward safer goods, services, and workplaces.

In addition, I’m currently working on a new piece, tentatively titled The Injunctive Effect of Tort Law. This piece will interrogate the ways that tort law promotes safety, beyond the conventional account centered on monetary payments. This piece will show that tort litigation sometimes directly promotes safety by affecting how goods are designed, how organizations function, how employees are trained or supervised, or how physical spaces are lit, signposted, or configured.

Tort Alternatives

While I focus on the strengths, weaknesses, capacity, and purpose of the tort system, I also consider alternatives to the tort system—i.e., “no-fault” regimes. Here, tort reform advocates have long attempted to divert certain claims from the tort system into no-fault systems where, advocates argue, compensation can be more quickly and efficiently delivered. In a series of papers, I cast doubt on that claim, as I’ve shown that America’s ex ante no-fault systems have all, in many ways, failed. Key works in this vein are Exit, Adversarialism, and the Stubborn Persistence of Tort, An Alternative Explanation for No-Fault’s Demise, and A Dose of Reality For Specialized Courts: Lessons From the VICP. I am also working on a book manuscript, tentatively titled “Why No-Fault Fails.”

Litigation Transparency

In the wake of the #MeToo movement, legislatures across the country have pared back litigation secrecy, contending that secret settlements “keep . . . aggressors unaccountable and able to prey on other victims.” Appellate courts, too, have expressed thinning patience with overly broad and thinly supported trial court orders that shield crucial information from public scrutiny. Yet, to this point, the debate has proceeded on an empirical foundation that’s both weak and wobbly. For decades, many have made broad claims about the prevalence of this or the frequency of that, while even basic factual questions about these mechanisms’ actual use and entry have resisted resolution.

In 2023, Professor David Freeman Engstrom and I assembled a team to reset the empirical terrain. Drawing on two enormous datasets, and leveraging state-of-the-art machine learning techniques, we are shedding overdue light on key policy questions that have, to this point, remained undisciplined by rigorous empirical inquiry.

In 2024, we published Secrecy by Stipulation in the Duke Law Journal. Analyzing more than 2.2 million federal cases, this study shows that stipulated protective orders are surprisingly prevalent. Grant rates for such orders are sky high. And even though many insist that judges are scrupulous in the entry of such orders, over our entire study period, a majority of federal judges never—not once—denied such a request.

In 2025, we published Shedding Light on Secret Settlements: An Empirical Study of California’s STAND Act in the Chicago Law Review. Deploying advanced machine-learning techniques and drawing on in-depth interviews with nearly two dozen practitioners, we explore litigation patterns before and after California’s STAND Act curtailed secret settlements. Our findings tell a clear and consequential story. Contrary to critics’ fears, the STAND Act did not yield a sharp increase or decrease in case filings. Nor did the Act significantly prolong cases or amplify their intensity. The upshot: Cases still settle even when secrecy isn’t on offer. Further, although our evidence is tentative, interviews with attorneys indicate that STAND does not seem to have even depressed settlement sums.

In a third piece, [Sealed Document]: An Empirical Study of Sealing Orders in the Federal Courts, forthcoming in the Duke Law Journal, we train our gaze on sealing orders, the third leg of the secrecy stool.  This piece shows that sealing orders are more common than most believe and are not subjected to the careful scrutiny the law requires.

Complex Litigation

Multidistrict litigation (MDL) has transformed court dockets across the United States. Today, well over half of all federal civil cases are MDLs. I believe that the MDL mechanism is essential. Without it, our courts would be flooded, and individuals with valid claims would be unable to obtain relief. But the MDL mechanism is (to put it mildly) imperfect. In my research, I seek to ensure that MDLs are a site of integrity, transparency, and accountability.

In one strand of this work, I address persistent—and highly consequential—concerns about illegitimate or fraudulent MDL claims. One recent piece, Harnessing Common Benefit Fees to Promote MDL Integrity, published in the Texas Law Review and co-authored with Todd Venook, proposes a novel solution to enhance the integrity of MDLs: leveraging common benefit fees to incentivize better screening practices by plaintiffs’ lawyers. Meanwhile, The Lessons of Lone Pine, published in the Yale Law Journal, analyzes Lone Pine orders, a case-management tool currently used to cull illegitimate claims. Although these orders are often praised for their efficiency, I highlight their drawbacks—including their inconsistent application and incompatibility with formal procedural rules. Based on these drawbacks, I urge caution in their use.

Then, The Participatory MDL: Toward Low-Tech Solutions to Improve Access and Promote Litigant Autonomy, also co-authored with Todd Venook, discusses the importance of client autonomy and the need to give MDL litigants the chance to “call the shots.” We find that court-run mechanisms to keep litigants up-to-date are flawed in various respects—and we provide concrete recommendations to promote better court-client communication.

Finally, in two further publications, entitled Plaintiffs and Attorneys in Multidistrict Litigation: Strengths, Deficits, and Paths Forward, and Managing MDLs: A Report from the March 2025 MDL Case Management Convening at Stanford Law School (2025), I, along with co-authors, abstract out to identify practical steps to address MDLs’ various deficiencies and seek to chart a research agenda that could better inform future MDL reforms.

American Law Institute: Third Restatement of Torts

Published by the American Law Institute (ALI), Restatements aim to make the law more coherent and legible. The first and second Torts Restatements have been extremely influential; they have been cited by courts more than 80,000 times. Indeed, the Second Restatement of Torts, which was published in 1979, is considered “the most widely accepted distillation of the common law of torts.” Field v. Mans, 516 U.S. 59, 70 (1995).

Since 2019, I have served as a Reporter on two of the ALI’s Third Restatement of Torts projects: Miscellaneous Provisions and Medical Malpractice. In 2022, the ALI designated me the R. Ammi Cutter Reporter’s Chair for my “proven effectiveness.”

The Miscellaneous Provisions project, which was approved by the ALI’s membership in the spring of 2025, addresses an eclectic grab bag of topics that do not fit neatly into other Restatement categories, including wrongful death, vicarious liability, spoliation, medical monitoring, wrongful birth, and prenatal injury. The Medical Malpractice project, which was approved by the ALI membership in 2024, focuses on distinct liability issues that arise when a patient seeks or obtains medical care, including matters such as informed consent, lost chance, and the special standards that govern the negligence determination in the context of a physician-patient relationship.

Casebooks

I co-author several casebooks. These include Tort Law and Alternatives: Cases and Materials, currently in its 11th edition (with Marc A. Franklin, Robert L. Rabin, Michael D. Green, and Mark A. Geistfeld), and also Legal Ethics (with Deborah L. Rhode, David Luban, Scott Cummings, and Benjamin Barton), currently in its 9th edition.

I recently published a new casebook titled Legal Ethics: The Plaintiffs’ Lawyer. Based on a popular class I have taught for many years at Stanford, this new ethics casebook uses a study of plaintiffs’ lawyers as a vehicle to explore many of the most controversial and consequential issues at the intersection of tort law, civil procedure, and legal ethics. Specifically, the casebook explores who personal injury lawyers are, how they find clients, how they fund litigation, and how they usher complex cases to conclusion. In so doing, the book addresses: the role and regulation of lawyers; the use and abuse of the contingency fee; the legality and normative consequences of solicitation and attorney advertising; the propriety of secret settlements, NDAs, and expansive protective orders; the rise and impact of “alternative litigation finance”; and the vexing issues posed by class actions, aggregate actions, consolidated actions, and MDLs.