Wednesday, September 18, 2013
Herbert M. Kritzer, Guangya Liu, and Neil Vidmar have posted on SSRN their article An Exploration of Non-Economic Damages In Civil Jury Awards. This article is forthcoming in William & Mary Law Review.
Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of economic damages increased. We found less consistency in our simple regression models where we predicted the log of noneconomic damages from the log of economic damages. In all of those models, the slopes of the fitted line were positive, but the slopes and the measures of fit (r2) varied from dataset to dataset, and among type of case within those datasets with multiple case types. Also, where we had the same type of case across datasets, we found variation in the fit and slope. With two of the datasets we were able to extend our regression models with regard to medical malpractice cases. Using the RAND jury study from 1995-99 we were able to separate out California’s medical malpractice cases which were governed by the MICRA cap on noneconomic damages from the cases coming from five other states included in the study. We found that MICRA dampened the relationship between economic and non-economic damages. Using the data we coded from on Cook County, Illinois jury verdicts, we were able to expand our regression model to include the NAIC severity index plus the gender and age of the plaintiff. We found no evidence that the two demographic variables systematically influenced the amount of non-economic damages, but the severity of injury did make a difference. Most importantly, we found that the severity of the injury conditioned the relationship between economic and non-economic damages.
Monday, September 9, 2013
Reginald Sheehan, Stacia Haynie, Kirk A. Randazzo, and Donald R. Songer have posted on SSRN their article, "Winners and Losers in Appellate Court Outcomes: A Comparative Perspective."
The question of who wins and loses in appellate courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). In this paper we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots," and their rates of success in top appellate courts in the common law world. A number of prior studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affect their chances for success. Using data from the highest courts of appeals across six countries we explore winners and losers in a comparative context. The results indicate that there is greater variation in who wins and who loses than party capability theory would suggest.
Friday, September 6, 2013
The National Law Journal reports on a recent article by Jeff Sovern (St. John's University School of Law) entitled "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," 51 U. Louisville L. Rev. 483 (2013). The article concludes that first-year students have more incentives to pay attention during class and therefore are less distracted by laptop use than second- and third-year law students.
My own classroom policy seems somehow misguided in light of this conclusion. I don't allow laptops in first-year Civil Procedure, but allow them in upper-class courses. My reasoning is that 1Ls need to be weaned from their slacker college ways, that it is almost impossible for them to multitask Civil Procedure, and that they have no choice in being assigned to my section, so they can't transfer out. After they survive the first year, I treat them like the adult graduate students they are and try (not always successfully) to make the class valuable enough to pay attention to.
By now, most professors have fairly strong views on their laptop-in-class policy, but the article may provide some food for thought.
Monday, September 2, 2013
UCLA Law Review Symposium Issue in Honor of Stephen Yeazell - Twenty-First Century Litigation: Pathologies and Possibilities
Monday, August 26, 2013
Stephen Vladeck (American University) has posted Military Courts and the All Writs Act to SSRN.
When it comes to the role of the federal courts in the federal system, few statutes play as significant a role — or are as routinely misunderstood — as the All Writs Act. It is the All Writs Act that rounds Article III’s sharp jurisdictional edges by investing courts of such limited subject-matter jurisdiction with a species of common-law authority; as Justice Stevens has explained, “The Act was, and is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress, and the statute provides these courts with the procedural tools — the various historic common-law writs — necessary for them to exercise their limited jurisdiction.”
Although the All Writs Act applies on its terms to “all courts established by Act of Congress,” two recent opinions in high-profile military justice cases have rejected the power of military courts to issue relief that is routinely available from civilian courts under the All Writs Act. In the Bradley Manning court-martial proceedings, for example, the highest court in the military justice system — the Court of Appeals for the Armed Forces (CAAF) — held that it lacked the authority under the All Writs Act to issue extraordinary relief to protect the First Amendment right of public access to criminal trials identified by the Supreme Court in Richmond Newspapers and its progeny. Similar reasoning was also offered by one of the judges of the Court of Military Commission Review (CMCR), in explaining why the CMCR lacked jurisdiction to provide analogous relief in the context of the military commission trial of the 9/11 defendants.
It is easy enough to identify the analytical errors common to these two opinions, but in addition to doing so, this short essay argues that there is more behind such analysis than a mere misreading of precedent. Ultimately, both CAAF’s decision in the Manning case and Judge Silliman’s concurrence in the CMCR’s 9/11 proceedings have at their core a misplaced and outdated understanding of both the military justice system’s exceptionalism and its relationship to the civilian courts. As I conclude, the understanding common to these two opinions has the ironic — and surely unintended — effect of weakening arguments for a separate system of military justice insofar as such crabbed understandings of the All Writs Act only bolster the need for increased Article III oversight of the military justice system through actions for collateral review.
Thursday, August 22, 2013
Alan Trammell (Brooklyn Law School) has posted Jurisdictional Sequencing to SSRN.
This Article offers a critical re-assessment of subject matter jurisdiction, arguably the most fundamental constraint on federal courts. The project examines the nature and purposes of subject matter jurisdiction through the lens of jurisdictional sequencing, a practice that allows a federal court to decide certain issues — and even dismiss cases — before it has verified subject matter jurisdiction.
Despite many scholars’ antipathy toward jurisdictional sequencing, it is a legitimate practice that reveals a nuanced understanding of jurisdiction’s unique structural role in protecting federalism and separation of powers. Specifically, elected institutions have principal responsibility for crafting conduct rules that regulate people’s primary activities. Federal courts may interpret and apply conduct rules — and thus in a meaningful sense “make law” — only when they have verified their subject matter jurisdiction. By contrast, federal adjudication does not implicate the structural concerns at the heart of subject matter jurisdiction when courts dismiss cases based on other rules (what I term allocative rules). Re-imagining the precise role of subject matter jurisdiction reveals how federal courts can decide cases more efficiently and also respect essential constraints on the allocation of powers.
Tuesday, August 20, 2013
Michael Steven Green (William & Mary) has posted The Twin Aims of Erie to SSRN.
We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid "forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. Through the twin aims, state law is incorporated into federal procedural common law in order to serve federal interests.
This reading does not merely have important consequences for diversity cases. It also has an impact on the role of the twin aims outside diversity. If the twin aims have their source in the purposes standing behind the congressional grant of jurisdiction, rather than respect for state interests, the fact that a federal court entertains a state law action is neither a necessary nor a sufficient reason for the twin aims to apply. The twin aims might apply to federal courts when entertaining federal causes of action. Conversely, they might not apply to a federal court when entertaining state law actions under jurisdictional statutes other than diversity.
I therefore examine four jurisdictional scenarios in order to assess the role of the twin aims in each: a federal court entertaining a federal cause of action, a state court entertaining a federal cause of action (sometimes called reverse-Erie), and a federal court entertaining a state law action under supplemental jurisdiction and under bankruptcy. In the course of my argument, I suggest a resolution to the current circuit split about whether a federal court sitting in bankruptcy should use forum state choice-of-law rules. I also argue that the Supreme Court has wrongly assumed that the twin aims apply in a reverse-Erie context. As a result, it has improperly limited state courts’ powers when entertaining federal civil rights actions — most recently in Haywood v. Drown, 556 U.S. 729 (2009).
This Article offers an original justification of the twin aims in diversity cases, and the first comprehensive explanation of their role in a variety of other jurisdictional contexts.
Thursday, August 1, 2013
W. Kip Viscusi and Benjamin McMichaels, both of Vanderbilt University, have posted on SSRN their paper, "Shifting the Fat-Tailed Distribution of Blockbuster Punitive Damage Awards."
The distribution of blockbuster punitive damages awards has fat tails similar to the distributions of losses from natural disasters. Extremely large awards occur more often and are more difficult to predict than if blockbuster awards were distributed normally. The size and predictability of awards are important factors in the U.S. Supreme Court’s decisions on punitive damages. This article examines the effect of the Court’s decision in State Farm v. Campbell on blockbuster punitive damages awards. State Farm shifts the fat tail of the distribution of blockbuster awards down (or “thins” the tail), which is consistent with a restraining effect on award size. State Farm reduces the size of blockbuster awards in general, but this reduction is most salient in the upper half of the distribution of awards. State Farm also has a negative influence on the probability of exceeding a single digit ratio between punitive and compensatory damages. This article also examines the largest awards and considers why defendants may not pay large punitive damages awards.
Monday, July 29, 2013
Myungho Paik, Bernard S. Black, and David A. Hyman have posted on SSRN their recent article, "The Receding Tide of Medical Malpractice Litigation Part 2: Effect of Damage Caps," which is forthcoming in the Journal of Empirical Legal Studies.
study the effect of damage caps adopted in the 1990s and 2000s on
medical malpractice claim rates and payouts. Prior studies found some
evidence that caps reduce payout/claim, but mixed and weak evidence on
whether caps reduce paid claim rates and payout per physician. However,
most prior studies do not allow for the gradual phase-in of damage
caps, which usually apply only to lawsuits filed after the reform’s
effective date, or only to injuries after the effective date. Once we
allow for phase-in, we find strong evidence that damage caps reduce both
claim rates and payout per claim, with a large combined impact on
payout per physician. The drop in claim rates is concentrated in claims
with larger payouts – the ones that would be most affected by a damages
cap. Stricter caps have larger effects. Some prior studies also find a
large impact of tort reforms other than damage caps. Once we allow for
phase-in, we find that these other reforms have no significant impact
on either claim rates or payout per claim.
A companion article, The Receding Medical Malpractice Part 1: National Trends, is available at http://ssrn.com/abstract=2109679.
Saturday, July 27, 2013
David Freeman Engstrom of Stanford Law School has posted on SSRN his essay, "The Twiqbal Puzzle and Empirical Study of Civil Procedure."
This essay, written for a Stanford Law Review issue exploring “The Empirical Revolution in Law,” offers a critical assessment of the large body of empirical scholarship examining the effect of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on judicial and litigant behavior and then uses the critique to make some broader observations about the past, present, and future of empirical study of civil procedure.
Friday, July 19, 2013
Thomas H. Cohen, of the Administrative Office of the U.S. Courts, has posted on SSRN "Litigating Civil Cases in State Intermediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of Appellate Litigation on Trial Court Outcomes."
In the civil justice system, litigants can file appeals as a means of challenging or modifying trial court verdicts or judgments. In most states, intermediate appellate courts represent the first, and in many cases, final arbiter of review for civil cases decided by bench or jury trial. While prior research on state appellate courts has focused primarily on civil appeals in state courts of last resort, there have been few attempts to examine the appeals process in state intermediate appellate courts. The current research attempts to address this gap by examining a national sample of tort and contract trials concluded in 2005 that were subsequently appealed. Specifically, this paper explores the factors that are related to (1) the rates in which civil trials are appealed to intermediate appellate courts, (2) the likelihood that a civil appeal will be decided on the merits, and (3) the probability of trial court outcomes being reversed at the intermediate appellate court level. The paper provides a roadmap for better understanding the case and litigant level characteristics that drive key decisions in intermediate appellate courts.
Thursday, July 11, 2013
Erin A. O'Hara O'Connor and Christoper R. Drahozal have posted on SSRN their article, "Carve-Outs and Contractual Procedure."
The burgeoning literature on private contractual choice of procedure has run up against a difficult empirical reality: the available empirical evidence reveals surprisingly little use of customized procedural rules in contracts between sophisticated parties. One likely reason for so little customization is that contractual relationships entail multiple risks, and it is very difficult to specify customized procedures that would optimally handle all potential disputes. In this article, we identify and analyze an alternative mechanism by which procedural customization commonly takes place in contracts: the use of carve-outs from arbitration. A carve-out is a contract provision by which the parties exclude (or carve out) certain claims or remedies from their arbitration clause. Carve-outs are a mechanism by which parties choose between court and arbitral bundles of procedures on a claim-by-claim basis. The claim-based choice makes more sense in that it enables the parties to choose procedures tailored to individual contractual risks. With such clauses, parties are able to obtain a more carefully calibrated procedural customization than provided by an arbitration clause or forum selection clause alone, but at a much lower overall cost than they would incur by attempting to develop customized procedural rules. This article sets out a model of the decision to use carve-outs and provides a detailed empirical examination of their use. Our analysis has a number of implications for the continued necessity of courts and their governing legal rules, the legal enforceability of carve-outs, and court treatment of the severability of claims from arbitration clauses more generally.
Wednesday, June 12, 2013
It’s a quick read at <3 pages, where “<3” actually means “less than 3” as opposed to a sideways emoticon heart.
From the National Law Journal:
A study released on Tuesday
by the American Constitution Society for Law and Policy identified a
"statistically significant" relationship between ballooning campaign
contributions by business interest to state supreme court candidates and
pro-business decisions by those courts.
Researchers studied more than 2,345 business-related state high court opinions between 2010 and 2012 and campaign contributions during that same time to sitting state high court judges. As the percentage of contributions from business groups went up, the probability of a pro-business vote by judges — defined as any decision that made a business better off — went up as well.
The study's author was Joanna Shepherd, a professor at Emory University School of Law. During a teleconference, she said the findings demonstrated that state court elections were becoming increasingly politicized and expensive. She pointed to surveys showing concern within the judiciary and among the general public about the influence of outside dollars on the courts.
To read more of the article, click here.
Sunday, June 2, 2013
Michael Klausner, Jason Hegland, and Matthew Goforth, all of Stanford Law School, have published on SSRN the first of two updates to earlier empirical studies of securities class actions, entitled "When are Securities Class Actions Dismissed, When Do They Settle, and for How Much? — An Update."
In this article, we briefly present some basic statistics on the timing of dismissals and settlements in securities class actions. In contrast to the popular image of securities class actions, we find that over half of all cases are either dismissed or settle well before discovery begins. 38% of cases are either dismissed with prejudice on the first motion to dismiss or are dropped before a second complaint is filed. Another 15% of cases settle either before the first motion to dismiss was ruled on or after an initial dismissal without prejudice. The article provides additional descriptive statistics on how securities class actions are resolved and the timing of their resolution.
Luke Meier of Baylor University Law School has posted on SSRN a new article in his probability/confidence series, entitled "Probability, Confidence, and Twombly's Plausibility Standard."
This Article offers a fresh perspective on the pleading standard of plausibility. The consensus regarding plausibility is that it requires a judge to determine the probability of the plaintiff’s allegations. This perspective has led to much of the criticism of the plausibility standard. In reality, plausibility requires a judge to perform an analytically distinct inquiry, which I term a confidence analysis. Recognizing this fact does not immunize plausibility from all of the criticism it has received. It does, however, clarify the analysis required under the standard, which should alleviate many of the concerns associated with plausibility.
Friday, May 31, 2013
Now available on the Courts Law section of JOTWELL is an essay by Sergio Campos (Miami) entitled Back to the Future. It reviews a recent article by Robert Jones (Northern Illinois), Lessons from a Lost Constitution, 27 J. L. & Politics 459 (2012).
Tuesday, May 28, 2013
William H. J. Hubbard, of University of Chicago Law School, published "An Empirical Study of the Effect of Shady Grove v. Allstate on Forum Shopping in the New York Courts" as University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 642 and U of Chicago, Public Law Working Paper No. 428. It is posted on SSRN here.
Given the considerable prominence of forum-shopping concerns in the jurisprudence and academic literature on the so-called Erie Doctrine, courts and commentators may benefit from data on whether, and to what extent, forum shopping in fact responds to choice-of-law decisions under the Erie Doctrine. Prior to this paper, however, no empirical study quantified the changes in forum shopping behavior caused by a court decision applying the Erie Doctrine. I study changes in filing patterns of cases likely to be affected by the Supreme Court’s recent decision in Shady Grove v. Allstate and find evidence of large shifts in the patterns of original filings and removals in federal courts in New York that are consistent with the predicted forum shopping response to Shady Grove. In addition to providing the first empirical evidence of vertical forum shopping induced by a decision applying the Erie doctrine, this paper seeks to serve as a proof of concept for empirical research in this area. While there are significant obstacles to empirical research on the effects of Erie and its progeny, this paper outlines a methodology that may be feasible for future projects in this area.
Friday, May 17, 2013
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.
Tuesday, May 14, 2013
S.I. Strong (Missouri/Supreme Court Fellow) has posted two articles about international commercial arbitration to SSRN.
International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States.
Efforts have been made to place the debate about the New York Convention within the context of post-Medellin jurisprudence concerning self-executing treaties. However, that framework does not adequately address the difficult constitutional question as to what course should be adopted when a particular issue is governed by both a treaty and a statute that is meant to incorporate that treaty into domestic law.
This Article addresses that question by considering the role of and relationship between the New York Convention and the Federal Arbitration Act, and by providing a robust analysis of the constitutional, statutory and public international issues that arise in cases involving international treaties and incorporative statues. Although the discussion is rooted in the context of international commercial arbitration, the Article provides important theoretical and practical insights that are equally applicable in other types of public international law.
For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to distinguish between requests made in the context of international commercial arbitration and requests made in the context of international investment arbitration. In so doing, the Article considers issues relating to grants of jurisdiction, state interests and standard interpretive canons.