Rethinking the Litigation Boom

This Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000–2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers “herd” or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment.

This analysis has normative implications, suggesting that litigationsuppressing legislative or judicial intervention may not always be necessary, though tweaks to system design could achieve more efficient outcomes and more equitably distributed access to legal representation.