According to a study by the Federal Judicial Center, the federal court system is one more place where frivolous litigation doesn't exist:
Frivolous litigation is not a major problem in the federal court system, according to an overwhelming majority of federal judges who participated in a recent survey.
The survey, conducted by the Federal Judicial Center, was based on the responses of 278 federal district court judges. Seventy percent of the respondents called groundless litigation either a "small problem" or a "very small problem," and 15% said it was no problem at all. Only 1% called it a "very large problem," 2% called it a "large problem" and the rest rated it as a "moderate problem" in their courts.
Details here (thanks to a reader for the link).
One federal judge who might fall into the 1% who disagrees is Judge Loretta A. Preska of the Southern District of New York, who recently began an opinion (pdf) dismissing one of Richard Scruggs' not-for-profit hospital cases with this metaphor-laden rebuke: "Plaintiffs here have lost their way; they need to consult a map or a compass or a Constitution because Plaintiffs have come to the judicial branch for relief that may only be granted by the legislative branch."
A few pages later in the opinion, Judge Preska wrote, "This orchestrated assault on scores of non-profit hospitals, necessitating the expenditure of those hospitals' scares (sic) resources to beat back meritless legal claims, is undoubtedly part of the litigation explosion that has been so well-documented in the media."
What does Judge Preska cite as evidence of a "litigation explosion"? Not a case from a federal reporter or a study by the federal courts, but Walter Olson's book The Litigation Explosion. I'm not sure if Olson is aware of the distinction. Not only does he fail to mention the citation in his post about the case, but he also fails to mention that his own work apparently set the tone for the judge's entire opinion.
Is it a good thing when federal judges rely on politically-inspired research from writers at tort-reform organizations like the Manhattan Institute? I think I know how tort reformers would answer the question, but I'm not sure I'd agree.
(Note: I amended the last paragraph of this post slightly after I published it. The original version was a little muddled.)