If you, or anyone you know, believes that America is in the midst of a litigation crisis, then you must read this book.

William Haltom and Michael McCann set out to examine how “assumptions about an ‘epidemic’ of civil litigation, a surfeit of rights claiming and a legal system run amok became conventional wisdom” among political elites and plain common sense to everybody else (p. 6). This is an important and interesting question on its face, given the periodic campaigns for tort reform that have swept the country during the last three decades: 45 states have passed some type of tort reform measure since the 1970s (p. 51); both houses of Congress passed significant federal tort reform legislation for the first time in 1995 (later vetoed by Bill Clinton) (p. 7); the last two presidential campaigns featured calls for tort reform; and tort reform is the centerpiece in George W. Bush's rhetoric on the health-care crisis.

But there are two things that raise Haltom and McCann's question to the level of urgent and compelling. First, most of this common sense is, in fact, nonsense (p. 81). Over the last several decades, rigorous studies by sociolegal scholars have shown the following: American's modal response to injury is to do nothing; Americans consult lawyers far less often and file far fewer legal claims than the common sense of the tort reformers suggests; lawyers reject far more cases than they undertake; tort cases constitute less than 20% to 25% of federal civil cases; 98% of tort cases are filed in state courts where they represent less than 10% of civil filings; seven out of eight civil filings are settled before verdict; the tort system undercompensates the direct costs of nonfatal injuries; punitive damages are rarely awarded, and even more rarely collected, and they do systematically correlate with compensatory damages; smaller claims tend to be overcompensated while larger claims are undercompensated; and the greater the award, the more likely it will be reduced by the trial judge or an appellate judge, or both, and the more likely that the final award will be at least partially unpaid (pp. 82–99).

Second, one of Haltom and McCann's central contentions is that the “common sense” about an epidemic of litigation, a surfeit of rights claiming, and a legal system run amok is fundamentally linked to the broader culture wars raging throughout the United States (p. 71): “Frivolous litigants displacing responsibility for self-inflicted harm and greedy lawyers abusing the legal system have joined the growing catalog of Others—welfare queens, the chronically unemployed, street criminals, disorderly dissenters, amoral liberals and secular humanists, slackers of all kinds dependent on government help—stigmatized by neoconservatives and neoliberal proponents as undeserving and dangerous.” This mass-produced legal knowledge makes an important difference in American political culture that cannot be measured solely by counting the legislative successes of the tort reformers, which, so far, have been held in reasonable check by the powerful trial lawyers. The tort reformer's legal lore has “narrowed the discursive terrain of politics” in significant and problematic ways: It diverts attention away from the corporations responsible for injuries; it reenforces American tendencies to evaluate social problems in terms of individual responsibility and moral character; it diverts attention from the failure of government to adequately provide social services to buffer the risks and harms endemic to modern life; and it puts a stigma on “right-claiming” across areas and forces progressives into defending a system they criticize as benefiting the “haves” over the “have nots” (pp. 282–90). It has made public and private administrators terrified and timid, while most ordinary citizens have been inoculated into a culture of law avoidance—save for the few opportunists who are encouraged into copycat litigation by the fantastic claims of the widely circulated “tort tales.” Red herrings and nonsense are no way to make public policy.

But let me be clear, for better or worse; this book is no polemic. Haltom and McCann are deeply committed to the norms and methodologies of social science, with the former a realist partial to statistical data sets and the latter a social constructionist partial to theory-driven, qualitative, interpretive studies. They do a beautiful job of blending the two approaches into a triangulation that gives us uncommon leverage. And unlike a standard polemic, this book does not identify a simple villain. Instead, the authors' careful and nuanced analysis leads them to the general argument of the book “that the simplistic narratives disseminated by policy-driven tort reformers have at once reinforced and been reinforced by everyday news reporting along with enduring ideological commitments endorsing individual responsibility and disparaging legalistic state paternalism” (p. 24).

Haltom and McCann consider the social construction of legal knowledge along three dimensions of social practice: instrumental, institutional, and ideological. Framed by introductory and concluding chapters, Distorting the Law is divided into two parts. The first part devotes a chapter to each of the instrumental actors: pop tort reformers, realist sociolegal scholars, and trial lawyers and consumer groups. While one might quarrel with their characterization of sociolegal scholars as instrumental actors, and in fact they do argue that the institutional practices of the academy largely account for the failure of the sociolegal scholars to displace the tort reformers' myths, winning this point would make little difference in Haltom and McCann's overall analysis.

The second part of the book explores the institutional practices or standardized news reporting conventions as they shape the media's coverage of the civil justice system. The authors rely on an impressive quantitative content analysis of 3,300 stories on tort litigation published in five leading newspapers over 20 years (their data is available at www.lawslore.info), supplemented by two rich cases studies. The first examines how a 79-year-old woman suffering third-degree burns from McDonald's coffee became the poster child for tort reform. The second asks why the tobacco litigation has not produced popular counteraccounts of the virtues of the tort system. Demonstrating a number of what they call “homologies” between news stories and tort tales circulated by reformers, they argue that routine news production conventions result in news coverage that very much resembles the “everyday knowledge constructed by tort reformers” (p. 174), and together the two produce a nearly unshakable, though false, common sense about the American legal system.

Haltom and McCann weave a discussion of the third dimension—ideology—into their accounts of the instrumental and institutional dimensions of the social construction of knowledge, showing that the ideological component is key to understanding the success of the tort reformers' instrumental efforts and the power of the stories produced by the media's institutional conventions. They point to the American penchant for norms of individual responsibility and minimal state action and show how tort tales invoke these values and how news coverage reflects and reinforces them. The dominant legal lore resonates with the American ethics of self-reliance, toughness, and autonomy and, at the same time, with nostalgic myths of communal harmony. But while ideology is given substantial weight in their explanatory calculus, it retains a shadowy, misty, cirrus-like existence in their analysis. I am left uneasy. Is it simply a delicious, disastrous irony that our ideological commitments to individual responsibility and minimal state action lead us to adopt a system of adversarial legalism (Robert A. Kagan, Adversarial Legalism, 2001; Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights, 2002), while at the same time vilifying those who turn to that system for relief? So we chase our tail while social welfare languishes—or maybe that is the Right's point after all.

In short, this is a terrific book, and it deserves a much wider audience than such rigorous scholarship usually gets. But it ought to at least be widely read, and taught, by scholars interested in the American public policy process, the limited rise—and possible demise—of the American welfare state, and the construction of political knowledge and, of course, by all students of law, politics, and society.