Eisenberg on the U.S. Chamber of Commerce Liability Survey: “Inaccurate, Unfair, and Bad for Business”

Professor Theodore Eisenberg of the Cornell University Law School has published U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business, 6 Journal of Empirical Legal Studies 969 (2009). Here is the abstract:

The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal change but no detailed evaluation of the survey’s quality exists. This article presents evidence that the survey is substantively inaccurate and methodologically flawed. It incorrectly characterizes state law; respondents provide less than 10 percent correct answers for objectively verifiable responses. It is internally inconsistent; a state threatened with judicial hellhole status ranked first in the survey while venues not on the list ranked lower. The absence of correlation between survey rankings and observable activity suggests that other factors drive the rankings. Two factors may help explain them. First, persistent low ranking of Gulf Coast states indicates that corporate counsel cannot shed hostility to states that were prominent in asbestos and tobacco litigation, notwithstanding changes in state laws. Second, low rankings of populous states suggest respondents fail to distinguish between rates of events and the absolute number of events. Adverse events in large states may occur more often but not necessarily at higher rates than in small states. The Chamber’s uses of the survey fail to account for the sample design, fail to account for the same respondent rating multiple states, fail to account for industry effects, and fail to distinguish among respondents based on their knowledge of a state. The survey may discourage investment in the United States, and corporate risk managers’ views suggest that the survey promotes corporate behavior that needlessly endangers the public.”

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