Just over a decade ago, we published an article in the Emory Law Journal titled The Strange Success of Tort Reform, which was inspired by our interest in the possible connection between tort reform and the declining number and rate (per 1000 population) of tort cases. The article argued that tort reform could succeed in decreasing tort litigation, even in the absence of much formal change in the law. It could do so through sophisticated and aggressive public relations efforts aimed at reshaping the market environment in which plaintiffs’ lawyers work in ways that made their practices more financially precarious. Since that article’s publication, there has been considerable and continuing distress about the apparent demise of the civil jury trial. In this article we revisit our earlier argument about tort reform’s strange success with this concern in mind. In doing so, we agree—to an extent—with those skeptical about a decline in the number of jury trials. At least in terms of auto accident cases—the most prevalent kind of tort case and the type of case that accounts for a large proportion of jury trials—it is not that jury trials are vanishing, it is the cases themselves. We think the important question is more about whether there is something affecting the number of cases that come into the civil justice system, rather than just how they leave it. In other words, it is more a question about tort reform’s impact on the front end of the process rather than the back.

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