Law Commons^™

Popular Culture's Portrayal Of Attorney Decision-Making And It's Consequences- An Analysis Of An Attorney's Internal Ethical Conflict In Film, Tara M. Parente

Tara M. Parente

This paper explores how popular culture portrays attorney decision-making and its consequences. This paper compares and contrasts two films in order to exemplify how attorneys are portrayed throughout film and how this carries over into real life. Attorneys are faced with ethical dilemmas at all times, especially throughout career advancement and the decisions made tend to affect every aspect of an attorney's life.

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Jeffrey J. Rachlinski

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.

Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions—a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for …

Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers that have been shown to distort litigation decision making, appear to make decisions in a …

Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Jury trials have always been a source of anxiety for litigators. Despite years of preparation, the outcome of a case can turn on the whimsical biases of a group of people who may or may not understand the legal arguments involved. In recent years, attorneys have taken steps to reduce this uncertainty by hiring social scientists who study jury decision making. One of the most popular services which these consultants offer is assistance in the jury selection process. The use of sociological and psychological methods in identifying and excluding unfavorable jurors from service, known as Scientific Jury Selection ("SJS"), has …

The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

Single Firm Conduct, George A. Hay

George A. Hay

My assignment is to discuss likely future developments involving single firm conduct. I will first discuss general trends and then move on to discuss some specific areas of the law. At the outset, however, I should remind the reader that what follows are predictions, not endorsements.

Oligopoly, Shared Monopoly, And Antitrust Law, George A. Hay

George A. Hay

No abstract provided.

Horizontal Agreements: Concept And Proof, George A. Hay

George A. Hay

It is well established that, absent some very special circumstances, agreements on price or certain other terms of trade by otherwise competing entities (i.e., "horizontal agreements") are unlawful per se under the Sherman Act. In practical effect, once the fact of the horizontal agreement has been established, an adverse impact on competition is presumed, and therefore that the plaintiff is spared the burden of proving such an impact. The principal task for plaintiffs in such cases, therefore, is establishing the existence of an agreement.

In the ideal world (from plaintiffs' perspective), there would be "hard" evidence of a "formal" agreement. …

Is The Glass Half-Empty Or Half-Full?: Reflections On The Kodak Case, George A. Hay

George A. Hay

No abstract provided.

The Ftc And Pricing: Of Predation And Signaling, George A. Hay

George A. Hay

This paper summarizes and comments on two recent FTC cases. The first case involved accusations of predatory pricing against Borden, the manufacturer of ReaLemon, the dominant brand of reconstituted lemon juice. The second involved price-signaling and other so-called facilitating practices by the four makers of lead-based antiknock compounds.

Trinko: Going All The Way, George A. Hay

George A. Hay

No abstract provided.

"Whodunit" Versus "What Was Done": When To Admit Character Evidence In Criminal Cases, Sherry Colb

Sherry Colb

In virtually every jurisdiction in the United States, the law of evidence prohibits parties from offering proof of an individual's general character traits to suggest that, on a specific occasion, the individual behaved in a manner consistent with those traits. In a criminal trial in particular, the law prohibits a prosecutor's introduction of evidence about the defendant's character as proof of his guilt. In this Article, Professor Colb proposes that the exclusion of defendant character evidence is appropriate in one category of cases but inappropriate in another. In the first category, which Professor Colb calls "whodunit" cases, the parties agree …

Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

A recent study of appellate outcomes reveals that defendants succeed significantly more often than plaintiffs on appeal from civil trials-especially from jury trials.

Plaintiphobia In The Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

Professors Clermont and Eisenberg conducted a systematic analysis of appellate court behavior and report that defendants have a substantial advantage over plaintiffs on appeal. Their analysis attempted to control for different variables that may affect the decision to appeal or the appellate outcome, including case complexity, case type, amount in controversy, and whether there had been a judge or a jury trial. Once they accounted for these variables and explored and discarded various alternate explanations, they came to the conclusion that a defendants' advantage exists probably because of appellate judges' misperceptions that trial level adjudicators are pro-plaintiff.

Appeal From Jury Or Judge Trial: Defendants' Advantage, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

The prevailing "expert" opinion is that jury verdicts are largely immune to appellate revision. Using a database that combines all federal civil trials and appeals decided since 1988, we find that jury trials, as a group, are in fact not so special on appeal. But the data do show that defendants succeed more than plaintiffs on appeal from civil trials, and especially from jury trials. Defendants appealing their losses after trial by jury obtain reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials. Both descriptive analyses of the results and more …

Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

General Observations on Interpreting Win-Rate Data Properly. Many empirical legal studies use data on plaintiffs' rate of success, because of those data's ready availability and apparent import. Yet these "win rates" are probably the slipperiest of all judicial data. Win rates are inherently ambiguous because of the case-selection effect. The litigants' selection of the cases brought produces a biased sample from the mass of underlying disputes. The settlement process, usually conducted by rational and knowledgeable persons who take into account and thereby neutralize the very factor that one would like to study, produces a residue of litigated cases for which …

Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this. Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005. CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg

Kevin M. Clermont

Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case. The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative …

Judge Harry Edwards: A Case In Point!, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

Judge Harry Edwards dislikes empirical work that is not flattering to federal appellate judges. A few years ago Dean Richard Revesz published an empirical study of the United States Court of Appeals for the D.C. Circuit providing further support for the rather tame proposition that judges’ political orientation has some effect on outcome in some politically charged cases. A year later Judge Edwards published a criticism phrased in extreme terms. Dean Revesz then wrote a devastating reply by which he demonstrated that Judge Edwards “is simply wrong with respect to each of the numerous criticisms that he levels.” We believe …

How Employment-Discrimination Plaintiffs Fare In The Federal Courts Of Appeals, Kevin Clermont, Theodore Eisenberg, Stewart Schwab

Kevin M. Clermont

Employment-discrimination plaintiffs swim against the tide. Compared to the typical plaintiff, they win a lower proportion of cases during pretrial and after trial. Then, many of their successful cases are appealed. On appeal, they have a harder time in upholding their successes, as well in reversing adverse outcome. This tough story does not describe some tiny corner of the litigation world. Employment-discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent. In this article, we use official government data to describe the appellate phase of this …

Improving On The Contingent Fee, Kevin M. Clermont, John D. Currivan

Kevin M. Clermont

Two basic fees--contingent and hourly--dominate the variety of fees that lawyers charge clients for pursuing damage claims. Each of these two types has its advantages; each is plagued with substantial disadvantages. This Article proposes a new type of fee, one that preserves the respective advantages of the two present fees while minimizing their distinct disadvantages. In essence, the proposed fee calls for the payment, on a contingent basis, of an amount computed by adding one component tied to hours worked and another component linked to amount recovered. The preferability and feasibility of this proposed fee argue for the abolishment, or …

Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin Clermont

Kevin M. Clermont

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.” A close reading reveals …

Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont

Kevin M. Clermont

No abstract provided.

Restating Territorial Jurisdiction And Venue For State And Federal Courts, Kevin M. Clermont

Kevin M. Clermont

"Jurisdiction must become venue," concluded Professor Albert A. Ehrenzweig. Perhaps it should. More certain is the proposition that comprehending jurisdiction requires mastering its relationship with venue. Such conclusions lie at some distance, however, bringing to mind that every journey must begin with a single step. A solid first step takes me to the subject of this Symposium, the Restatement (Second) of Judgments. This, put simply, is a masterful work. Even while still in tentative drafts, it proved an invaluable aid to judge, practitioner, teacher, and student. Yet in a work of such scope, anyone could find grounds for differing. At …