Law Commons^™

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Cornell Law Faculty Publications

Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice …

Judicial Decisionmaking In Federal Products Liability Cases, 1978-1997, Theodore Eisenberg

Cornell Law Faculty Publications

In 1992, Professor James Henderson and I wrote that, throughout the 1980s, a quiet, pro-defendant revolution in products liability had occurred. That revolution was likely largely the product of a "widespread, independent shift in judicial attitudes." It was not discernable in cases tried before juries. The federal data used in that study were available through 1989. Also in 1992, using the same database, Professor Kevin Clermont and I wrote about the surprising relation between plaintiff win rates in judge and jury trials in products liability cases. Plaintiffs prevailed at a higher rate before judges than they did before juries. Comparable …

Measuring The Deterrent Effect Of Punitive Damages, Theodore Eisenberg

Cornell Law Faculty Publications

Professor Viscusi's article differs from the dominant mode of law and economics scholarship on punitive damages. The usual punitive damages article contains purely theoretical considerations about when punitive damages are appropriate and about their optimal level; no effort is made to ascertain whether the existing pattern of punitive awards corresponds with the theory. This is part of a larger problem: the dearth of empirical evidence in law and economics scholarship. Viscusi, on the other hand, provides empirical tests of whether punitive damages accomplish their goals, and he makes creative use of publicly available data sources. For the goal of his …

Products Liability Cases On Appeal: An Empirical Study, Theodore Eisenberg, James A. Henderson Jr.

Cornell Law Faculty Publications

This article analyzes 1,100 opinions to find the determinants of products liability cases on appeal in state and federal courts. The strongest predictor of plaintiff success on appeal is whether the plaintiff prevailed in a jury trial. Other important factors are the defendant's status as manufacturer, wholesaler, or successor corporation; the plaintiffs degree of injury; and whether the case involved a failure-to-warn claim. The existence of a comparative negligence regime increases the tendency of appellate courts to affirm lower courts. These results allow rejection of a simple model in which pre- and posttrial settlement behavior filters out cases in which …

Inside The Quiet Revolution In Products Liability, Theodore Eisenberg, James A. Henderson Jr.

Cornell Law Faculty Publications

"A bullet in the head of products liability reform." Thus did a lobbyist orally characterize our article in this law review, The Quiet Revolution in Products Liability, describing declining plaintiff success in products liability cases in the 1980s. From the coverage and criticism the Quiet Revolution received around the country and around the world, the trends we discovered struck many as surprising enough to be newsworthy and others as sufficiently threatening to warrant a special response. Products liability's sustained presence on state and federal legislative agendas warrants continuing and expanding the study begun in the Quiet Revolution.

This …

The Quiet Revolution In Products Liability, James A. Henderson Jr., Theodore Eisenberg

Cornell Law Faculty Publications

Most revolutions are noisy, tumultuous affairs. This is as true of significant shifts in legal doctrine as it is of shifts of political power through force of arms. Indeed, the pro-plaintiff revolution in American products liability in the early 1960s will forever be associated with heroic, martial images, epitomized in Prosser's description of the assault upon, and fall of, the fortress citadel of privity. The same sort of terminology aptly could be used to describe the last five or ten years of legislative reform activity in the various states. Reacting to what many see as "crises" brought on by courts …

The Quiet Revolution In Products Liability: An Empirical Study Of Legal Change, James A. Henderson Jr., Theodore Eisenberg

Cornell Law Faculty Publications

Most revolutions are noisy, tumultuous affairs. This is as true of significant shifts in legal doctrine as it is of shifts of political power through force of arms. The pro-plaintiff revolution in products liability in the early 1960s will forever be associated with heroic, martial images, epitomized in Prosser's description of the assault upon, and fall of, the fortressed citadel of privity. In contrast to these noisy, exuberant events, the revolution to which we refer has gone all but unnoticed. In fact, some followers of the products liability wars will find our hypothesis so contrary to currently shared wisdom as …

What Shapes Perceptions Of The Federal Court System?, Theodore Eisenberg, Stewart J. Schwab

Cornell Law Faculty Publications

Two hundred years is a long time. It is too long after formation of a court system to ask such basic questions as (1) what cases occupy the system, and (2) whether even informed professionals have a reasonable picture of what goes on within the system. Nonetheless, continuing debate about the volume and makeup of litigation in general and of federal court litigation in particular requires legal scholars to address these questions. Professor Marc Galanter's work on the litigation explosion questions central assumptions about the nature and growth of the federal docket. Our prior work undermines widely held views about …

Explaining Constitutional Tort Litigation: The Influence Of The Attorney Fees Statute And The Government As Defendant, Stewart J. Schwab, Theodore Eisenberg

Cornell Law Faculty Publications

No abstract provided.

The Reality Of Constitutional Tort Litigation, Theodore Eisenberg, Stewart J. Schwab

Cornell Law Faculty Publications