Law Commons^™

Why Do Empirical Legal Scholarship?, Theodore Eisenberg

Cornell Law Faculty Publications

People conduct legal scholarship for many different reasons. This Article focuses on the demand for and reaction to scholarship that helps inform litigants, policymakers, and society as a whole about how the legal system works. Law schools do little to train generations of lawyers in how to systematically assess the state of the legal system and the legal system's performance. Schools leave such assessments largely to self-interested advocates and to other disciplines. Self-interested advocates have less interest in objective assessment of the system than in pushing preferred policy agendas. Academic disciplines other than law have a distinct advantage in that …

Appeal Rates And Outcomes In Tried And Nontried Cases: Further Exploration Of Anti-Plaintiff Appellate Outcomes, Theodore Eisenberg

Cornell Law Faculty Publications

Federal data sets covering district court and appellate court civil cases for cases terminating in fiscal years 1988 through 2000 are analyzed. Appeals are filed in 10.9 percent of filed cases, and 21.0 percent of cases if one limits the sample to cases with a definitive judgment for plaintiff or defendant. The appeal rate is 39.6 percent in tried cases compared to 10.0 percent of nontried cases. For cases with definitive judgments, the appeal filing rate is 19.0 percent in nontried cases and 40.9 percent in tried cases. Tried cases with definitive judgments are appealed to a conclusion on the …

The Merciful Capital Juror, Theodore Eisenberg, Stephen P. Garvey

Cornell Law Faculty Publications

We examine the role of mercy in capital sentencing along three dimensions. We first explain why mercy is a philosophically problematic virtue, and second, why it presently holds an ambiguous status within constitutional doctrine. Finally, we draw on interviews with jurors who served on capital cases in order better to understand how the behavior of merciful jurors compares to the behavior of their less merciful counterparts. Among other things, we find that merciful jurors tend to be better educated and to attend religious services regularly. We also find that merciful jurors are, as one might reasonably expect, more apt to …

The Role Of Opt-Outs And Objectors In Class Action Litigation: Theoretical And Empirical Issues, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

No abstract provided.

Implicit Racial Attitudes Of Death Penalty Lawyers, Theodore Eisenberg, Sheri Lynn Johnson

Cornell Law Faculty Publications

Defense attorneys commonly suspect that the defendant's race plays a role in prosecutors' decisions to seek the death penalty, especially when the victim of the crime was white. When the defendant is convicted of the crime and sentenced to death, it is equally common for such attorneys to question the racial attitudes of the jury. These suspicions are not merely partisan conjectures; ample historical, statistical, and anecdotal evidence supports the inference that race matters in capital cases. Even the General Accounting Office of the United States concludes as much. Despite McCleskey v. Kemp, in which the United States Supreme Court …

Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio

Cornell Law Faculty Publications

As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia to …

The Employment Consequences Of Wrongful-Discharge Laws: Large, Small, Or None At All?, David H. Autor, John J. Donahue Iii, Stewart J. Schwab

Cornell Law Faculty Publications

Attorney Fees In Class Action Settlements: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Study of two comprehensive class action case data sets covering 1993-2002 shows that the amount of client recovery is overwhelmingly the most important determinant of the attorney fee award. Even in cases in which the courts engage in the lodestar calculation (the product of reasonable hours and a reasonable hourly rate), the client's recovery generally explains the pattern of awards better than the lodestar. Thus, the time and expense of a lodestar calculation may be wasteful. We also find no robust evidence that either recoveries for plaintiffs or fees of their attorneys increased overtime. The mean fee award in common …

Arbitration And Litigation Of Employment Claims: An Empirical Comparison, Theodore Eisenberg, Elizabeth Hill

Cornell Law Faculty Publications

The authors conducted empirical research comparing court case and arbitrated outcomes for employment disputes. In cases not involving civil rights claims, they found little evidence that arbitrated outcomes materially differed from trial outcomes where the claimant was a higher-paid employee. Moreover, they found no statistically significant differences between employee win rates or in the median or mean awards in arbitration and litigation. They also reported evidence indicating that arbitrated disputes conclude more quickly than litigated disputes.

Was Arthur Andersen Different? An Empirical Examination Of Major Accounting Firm Audits Of Large Clients, Theodore Eisenberg, Jonathan R. Macey

Cornell Law Faculty Publications

Enron and other corporate financial scandals focused attention on the accounting industry in general and on Arthur Andersen in particular. Part of the policy response to Enron, the criminal prosecution of Andersen eliminated one of the few major audit firms capable of auditing many large public corporations. This article explores whether Andersen's performance, as measured by frequency of financial restatements, measurably differed from that of other large auditors. Financial restatements trigger significant negative market reactions and their frequency can be viewed as a measure of accounting performance. We analyze the financial restatement activity of approximately 1,000 large public firms from …