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 …

Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?, Robert J. Condlin

Faculty Scholarship

In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the …

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …

Cautions On The Use Of Economics Experiments In Law, Kathryn Zeiler

Faculty Scholarship

The recent move to import empirical results into law and policymaking have introduced challenges related to drawing proper inferences from quantitative studies. The purpose of this essay is to elaborate on three specific cautions on the use of economics experiment results. First, critiques of experiment designs based on external and ecological validity are often misplaced. Second, some legal scholars have fallen into the problematic habit of applying results from experiments directly to law and policy rather than applying well-supported theories. Third, the divergent purposes behind economics studies and legal scholarship give rise, in part, to problematic cherry picking of experimental …

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 Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, Carolyn Shapiro

All Faculty Scholarship

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices’ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.

Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even …

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.

How The Merits Matter: Directors' And Officers' Insurance And Securities Settlements, Tom Baker, Sean J. Griffith

All Faculty Scholarship

This Article seeks what may be the holy grail of securities law scholarship—the role of the “merits” in securities class actions—by investigating the relationship between settlements and directors’ and officers’ (D&O) liability insurance. Drawing upon in-depth interviews with plaintiffs’ and defense lawyers, D&O insurance claims managers, monitoring counsel, brokers, mediators, and testifying experts, we elucidate the key factors influencing settlement and examine the relationship between these factors and notions of merit in civil litigation. We find that, although securities settlements are influenced by some factors that are arguably merit related, such as the “sex appeal” of a claim’s liability elements, …

The Effects Of Tort Reform On Medical Malpractice Insurers’ Ultimate Losses, Patricia Born, W. Kip Viscusi, Tom Baker

All Faculty Scholarship

Whereas the literature evaluating the effect of tort reforms has focused on reported incurred losses, this paper examines the long run effects using a comprehensive sample by state of individual firms writing medical malpractice insurance from 1984-2003. The long run effects of reforms are greater than insurers' expected effects, as five year developed losses and ten year developed losses are below the initially reported incurred losses for those years following reform measures. The quantile regressions show the greatest effects of joint and several liability limits, noneconomic damages caps, and punitive damages reforms for the firms that are at the high …

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 …

Wikitruth Through Wikiorder, David A. Hoffman, Salil K. Mehra

All Faculty Scholarship

How does large-scale social production coordinate individual behavior to produce public goods? Hardin (1968) denied that the creation of public goods absent markets or the State is possible. Benkler (2006), Shirky (2008), Zittrain (2008), and Lessig (2008) recently countered that the needed coordination might emerge though social norms. However, the means to this coordination is under-theorized. Focusing on Wikipedia, we argue that the site’s dispute resolution process is an important force in promoting the public good it produces, i.e., a large number of relatively accurate public encyclopedia articles. We describe the development and shape of Wikipedia’s existing dispute resolution system. …

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Faculty Publications

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 27, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends case type, party identity, income level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

Empirical Health Law Scholarship: The State Of The Field, Michelle M. Mello, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection--empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges--practical, methodological, and political.

The purpose of this Article is to survey the current state of the field by describing commonly used methods, analyzing enabling and …

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 …

Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan D. Franck

Scholarly Articles

While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …

Toward The Next Generation Of Galanter-Influenced Scholars: The Influential Reach Of A Law-And-Society Founder, Jayanth K. Krishnan, Stewart Macaulay

Articles by Maurer Faculty

To say that Professor Marc Galanter's scholarship is diverse would be a woeful understatement. In his over forty years of writing, Galanter's work has covered topics including (but not limited to) torts, contracts, constitutional law, comparative law, empirical legal studies, the legal profession, legal anthropology, and South Asian studies. With Galanter's scholarship so heavily cited and respected, we see it as only fitting, particularly upon his recently turning seventy-five, to acknowledge his achievements in a symposium that reflects back on the years of his work. Serving as special editors to an issue forthcoming in the Duke Law School journal, Law …

Empirical Health Law Scholarship: The State Of The Field, Kathryn Zeiler

Faculty Scholarship

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection - empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges: practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, …

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. …

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.

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 …

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.

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

Cornell Law Faculty Publications

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 …

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. …