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.
Monday, May 6, 2013
Wednesday, May 1, 2013
Now available on the Courts Law section of JOTWELL is an essay by Jay Tidmarsh (Notre Dame) entitled Adequacy and the Attorney General. It reviews a recent article by Maggie Lemos (Duke), Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012), and a response by Deborah Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).
Saturday, April 20, 2013
The Journal of Empirical Legal Studies has published online an article by Christina L. Boyd, David A. Hoffman, Zoran Obradovic, and Kosta Ristovsk entitled "Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints."
This project empirically explores civil litigation from its inception by examining the content of civil complaints. We utilize spectral cluster analysis on a newly compiled federal district court data set of causes of action in complaints to illustrate the relationship of legal claims to one another, the broader composition of lawsuits in trial courts, and the breadth of pleading in individual complaints. Our results shed light not only on the networks of legal theories in civil litigation but also on how lawsuits are classified and the strategies that plaintiffs and their attorneys employ when commencing litigation. This approach permits us to lay the foundation for a more precise and useful taxonomy of federal litigation than has been previously available, one that, after the Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), has also arguably never been more relevant than it is today.
Wednesday, April 17, 2013
Jaime Dodge (University of Georgia) has posted Disaggregative Mechanisms: The New Frontier of Mass-Claims Resolution Without Class Actions to SSRN.
Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of common questions that has been the hallmark of traditional mass claims litigation. Disaggregation returns to a focus on the individual akin to that of the single-plaintiff system, but uses either procedural or substantive streamlining, or a shift of costs to the defendant, to correct the asymmetries that prompted the creation of class actions. Many of our most innovative claims structures — from the BP GCCF and the fund created in the wake of the Costa Concordia disaster, to the common single-plaintiff arbitration clauses in consumer and employment agreements — use this new, bottom-up model of disaggregative mass claims resolution instead of the familiar top-down aggregative model.
These next-generation systems have been heralded as a significant advancement in mass claims resolution, capable of awarding more compensation to claimants more quickly and at lower cost than aggregate litigation. But like the single-plaintiff and aggregate litigation systems that preceded it, disaggregation has its flaws. Because the defendant typically designs these systems, they often give rise to questions about legitimacy and the accuracy of compensation. More shockingly, situating disaggregation within the existing doctrinal trends reveals that the rise of disaggregation allows corporations to avoid class actions in a far broader swath of cases than has previously been identified — such that class actions will, as a practical matter, proceed only at the defendant’s election, raising substantial questions about the viability of private actions as a mechanism for the enforcement of law. Yet, because these systems are the product of contract, attempts to restrict these systems have largely failed. The answer to these problems lies in an unlikely and potentially controversial approach: expanding rather than restricting the availability of disaggregation, by creating a public mechanism for disaggregation — comparable to the existing public aggregation mechanisms.
Tuesday, April 16, 2013
Now available online is an article by Arthur Miller (NYU) entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286 (2013). Here’s the abstract:
When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.
The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction of class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.
All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.
Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.
Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix (Texas) entitled Fixing Personal Jurisdiction. It reviews a recent article by Stephen Sachs (Duke), How Congress Should Fix Personal Jurisdiction.
Friday, April 12, 2013
James Grimmelman (New York Law School) has posted Future Conduct and the Limits of Class-Action Settlements to SSRN.
This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.
Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.
Thursday, April 11, 2013
Damon Andrews and John Newman have posted Personal Jurisdiction and Choice of Law in the Cloud to SSRN.
Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the “cloud” as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in recorded history, cloud computing is — both practically and legally — a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than a product, represents an evolution to a contractual foundation for all relevant interactions.
Already, substantive cloud-related disputes have erupted in a variety of legal fields, including personal privacy, intellectual property, and antitrust, to name a few. Yet before courts can confront such issues, they must first address the two fundamental procedural questions of a lawsuit that form the bases of this Article — first, whether any law applies in the cloud, and, if so, which law ought to apply. Drawing upon novel analyses of analogous Internet jurisprudence, as well as concepts borrowed from disciplines ranging from economics to anthropology, this Article seeks to supply answers to these questions. To do so, we first identify a set of normative goals that jurisdictional and choice-of-law methodologies ought to seek to achieve in the unique context of cloud computing. With these goals in mind, we then supply structured analytical guidelines and suggested policy reforms to guide the continued development of jurisdiction and choice of law in the cloud.
Thursday, April 4, 2013
Professor Howard Erichson (Fordham) has posted on SSRN a draft of his article, The Problem of Settlement Class Actions. Here’s the abstract:
This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. Rather, this article contends that if a dispute is to be resolved on a classwide basis, then the resolution should occur after a court has found the matter suitable for classwide adjudication regardless of settlement.