Law Commons^™

"Too Many Notes"? An Empirical Study Of Advocacy In Federal Appeals, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

The warp and woof of American law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. While the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy.

Given the paramount place of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of Appeals for the Ninth Circuit, we …

Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …

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

Cornell Law Faculty Publications

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 …

Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …

The Origins, Nature, And Promise Of Empirical Legal Studies And A Response To Concerns, Theodore Eisenberg

Cornell Law Faculty Publications

This Article describes the origins of three movements in legal academia: empirical legal studies (ELS), law and society, and law and economics. It then quantifies the distribution across scholarly fields (for example, economics and psychology) of authors in these movements’ journals and reports the impact of the movements’ scholarly journals. By focusing on two leading law and economics journals, this Article also explores the effect of a journal being centered in law schools rather than in a social science discipline. It suggests that ELS has achieved rapid growth and impact within the academic legal community because of (1) its association …

Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg

Cornell Law Faculty Publications

This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations and that 9.1 percent of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We …

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 …

U.S. Chamber Of Commerce Liability Survey: Inaccurate, Unfair, And Bad For Business, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal change but no detailed evaluation of the survey’s quality exists. This article presents evidence that the survey is substantively inaccurate and methodologically flawed. It incorrectly characterizes state law; respondents provide less than 10 percent correct answers for objectively verifiable responses. It is internally inconsistent; a state threatened with judicial hellhole status ranked first in the survey while venues not on the list ranked lower. The absence of correlation between survey rankings and observable activity suggests that other factors drive the rankings. Two factors …

The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

Federal Criminal Appeals: A Brief Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Although few dispute the appellate process's centrality to justice systems, especially in the criminal context, debates over rationales supporting the appellate process's vaunted status in adjudication systems persist. Clearly, it is difficult to overestimate error correction as a justification for an appellate system. Of course, other rationales, such as a desire for lawmaking and legitimacy, also support the inclusion of a mechanism for appellate review in an adjudication system.

Though comparative latecomers, appellate courts are now ubiquitous in the American legal landscape—appellate review exists in state and federal systems for criminal convictions. Despite general agreement and widespread understanding that access …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Statins And Adverse Cardiovascular Events In Moderate-Risk Females: A Statistical And Legal Analysis With Implications For Fda Preemption Claims, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article presents: (1) meta-analyses of studies of cardioprotection of women and men by statins, including Lipitor (atorvastatin), and (2) a legal analysis of advertising promoting Lipitor as preventing heart attacks. The meta-analyses of primary prevention clinical trials show statistically significant benefits for men but not for women, and a statistically significant difference between men and women. The analyses do not support (1) statin use to reduce heart attacks in women based on extrapolation from men, or (2) approving or advertising statins as reducing heart attacks without qualification in a population that includes many women. The legal analysis raises the …

Do Juries Add Value? Evidence From An Empirical Study Of Jury Trial Waiver Clauses In Large Corporate Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We study jury trial waivers in a data set of 2,816 contracts contained as exhibits in Form 8-K filings by reporting corporations during 2002. Because these contracts are associated with events deemed material to the financial condition of SEC-reporting firms, they likely are carefully negotiated by sophisticated, well-informed parties and thus provide presumptive evidence about the value associated with the availability of jury trials. A minority of contracts, about 20 percent, waived jury trials. An additional 9 percent of contracts had arbitration clauses that effectively preclude jury trials though the reason for arbitration clauses need not specifically relate to juries. …

Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners’ aversion to U.S. forums can elevate the foreigners’ success rates, when measured as a percentage of …

Heuristics And Biases In Bankruptcy Judges, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

Do specialized judges make better decisions than judges who are generalists? Specialized judges surely come to know their area of law well, but specialization might also allow judges to develop better, more reliable ways of assessing cases. We assessed this question by presenting a group of specialized judges with a set of hypothetical cases designed to elicit a reliance on common heuristics that can lead judges to make poor decisions. Although the judges resisted the influence of some of these heuristics, they also expressed a clear vulnerability to others. These results suggest that specialization does not produce better judgment.

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In The Contracts Of Publicly Held Companies, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Informed parties bargaining for their mutual advantage will tend to agree to provisions that maximize the social surplus. Such bargaining includes provisions regarding the resolution of disputes that might arise under the contract. Thus, if a form of alternative dispute resolution, such as binding arbitration, provides greater social benefits than litigation, the dynamics of the process should tend to induce the parties to include a clause submitting future disputes to arbitration. This Article studies the actual contracting practices of large, sophisticated actors with respect to arbitration clauses. We examined over 2800 contracts, filed with the Securities Exchange Commission (SEC) in …

Ex Ante Choices Of Law And Forum: An Empirical Analysis Of Corporate Merger Agreements, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Legal scholars have focused much attention on the incorporation puzzle—why business corporations so heavily favor Delaware as the site of incorporation. This paper suggests that the focus on the incorporation decision overlooks a broader but intimately related set of questions. The choice of Delaware as a situs of incorporation is, effectively, a choice of law decision. A company electing to charter in Delaware selects Delaware law (and authorizes Delaware courts to adjudicate legal disputes) regarding the allocation of governance authority within the firm. In this sense, the incorporation decision is fundamentally similar to any setting in which a company selects …

Use It Or Pretenders Will Abuse It: The Importance Of Archival Legal Information, Theodore Eisenberg

Cornell Law Faculty Publications

Archival information about the legal system should inform policymaking. Despite claims of soaring civil damages awards, modem historical data show no to little growth in tort awards and no real growth in punitive damages awards. The data also show a dramatic forty-year decline in trial rates from more than ten percent of case dispositions to less than two percent. The decline needs to be explained in part by using archival data. Contrary to perceptions underlying the Class Action Fairness Act of 2005, little systematic evidence exists that state and federal courts process class actions significantly different. These results contradict the …

Incentive Awards To Class Action Plaintiffs: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 …

Significant Association Between Punitive And Compensatory Damages In Blockbuster Cases: A Methodological Primer, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article assesses the relation between punitive and compensatory damages in a data set, gathered by Hersch and Viscusi (H-V), consisting of all known punitive damages awards in excess of $100 million from 1985 through 2003. It shows that a strong, statistically significant relation exists between punitive and compensatory awards, a relation that replicates similar findings in nearly all other analyses of punitive and compensatory damages. H-V's claim that no significant relation exists between punitive and compensatory awards in these data appears to be an artifact of questionable regression methodology.

Assessing The Ssrn-Based Law School Rankings, Theodore Eisenberg

Cornell Law Faculty Publications

One noteworthy feature of the SSRN-based rankings is the high correlation between them and other rankings. Black and Caron report correlation coefficients between their two Social Science Research Network (SSRN) school rankings (one based on downloads from SSRN and one based on the number of papers posted on SSRN) and six other published rankings. The correlations provide a useful and creative measure of consistency across studies. If ranking studies are highly correlated, then the least expensive and most efficient study to conduct can be used without incurring the expense and delay of the more labor-intensive ranking methods. SSRN has a …

An Empirical Analysis Of Ceo Employment Contracts: What Do Top Executives Bargain For?, Stewart J. Schwab, Randall S. Thomas

Cornell Law Faculty Publications

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …

Overlooked In The Tort Reform Debate: The Growth Of Erroneous Removal, Theodore Eisenberg, Trevor W. Morrison

Cornell Law Faculty Publications

Disputes over forum often center on whether a case should proceed in state or federal court. Removal to federal court can trigger a costly forum struggle. When a state case is removed to federal court only to be sent back to state court, the time and resources incurred in the detour are a toll on the judicial system and waste parties’ resources. We find erroneous removal to be an increasing problem. From 1993 to 2002, a period when state tort filings noticeably decreased, the number of removed diversity tort cases increased by about 10 percent to about 8,900 per year. …

Why Are So Many People Challenging Board Of Immigration Appeals Decisions In Federal Court? An Empirical Analysis Of The Recent Surge In Petitions For Review, John R.B. Palmer, Stephen W. Yale-Loehr, Elizabeth Cronin

Cornell Law Faculty Publications

No abstract provided.

The Fate Of Firms: Explaining Mergers And Bankruptcies, Clas Bergström, Theodore Eisenberg, Stefan Sundgren, Martin T. Wells

Cornell Law Faculty Publications

Using a uniquely complete data set of more than 50,000 observations of approximately 16,000 corporations, we test theories that seek to explain which firms become merger targets and which firms go bankrupt. We find that merger activity is much greater during prosperous periods than during recessions. In bad economic times, firms in industries with high bankruptcy rates are less likely to file for bankruptcy than they are in better years, supporting the market illiquidity arguments made by Shleifer and Vishny (1992). At the firm level, we find that, among poorly performing firms, the likelihood of merger increases with poorer performance, …

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Cornell Law Faculty Publications

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

Death Sentence Rates And County Demographics: An Empirical Study, Theodore Eisenberg

Cornell Law Faculty Publications

The number of murders in a state largely determines the size of a state's death row. The more murders, the larger the death row. This fundamental relation yields surprising results, including the newsworthy finding that Texas's death sentencing rate is not unusually high. Recent state-level research also underscores the importance of race in the demography of death row. Death penalty research has long emphasized race's role, and with good reason--a racial hierarchy exists in death sentence rates. Black defendants who murder white victims receive death sentences at the highest rate; white defendants who murder white victims receive death sentences at …

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 …