Civil Procedure Commons^™

Empowering The Active Jury: A Genuine Tort Reform, Valerie P. Hans

Cornell Law Faculty Publications

The rallying cry of "tort reform" is frequently associated with changes to the civil justice system that restrict the civil jury or avoid it altogether. Tort reformers have praised United States Supreme Court rulings that have led to greater judicial control over the evidence, especially scientific evidence, which juries hear. Other reformers advocate bifurcation of trials to avoid the possibility of jurors being so negatively influenced by testimony about damages that it affects their liability judgments.

The tort system aims to compensate fairly and equitably those who are injured by others, and to do so in an efficient manner. Concerns …

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 …

Reverse-Erie, Kevin M. Clermont

Cornell Law Faculty Publications

Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding …

Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …

Integrating Transnational Perspectives Into Civil Procedure: What Not To Teach, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

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. …

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 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.

Recent Evaluative Research On Jury Trial Innovations, B. Michael Dann, Valerie P. Hans

Cornell Law Faculty Publications

During the past decade, state jury reform commissions, many individual federal and state judges, and jury scholars have advocated the adoption of a variety of innovative trial procedures to assist jurors in trials. Many jury trial reforms reflect growing awareness of best practices in education and communication as well as research documenting that jurors take an active rather than a passive approach to their decision-making task. Traditional adversary jury trial procedures often appear to assume that jurors are blank slates, who will passively wait until the end of the trial and the start of jury deliberations to form opinions about …

Empirical Research And Civil Jury Reform, Valerie P. Hans, Stephanie Albertson

Cornell Law Faculty Publications

In January 2003, President George W. Bush invoked the supposed failings of the civil jury as the rationale for sweeping changes to the civil justice system. In a speech given at the University of Scranton, in Pennsylvania, a state where skyrocketing costs of medical malpractice insurance had created a political crisis, President Bush said, "Excessive jury awards will continue to drive up insurance costs, will put good doctors out of Scranton, Pa." Among the changes he proposed were a decrease in the time that patients would have to sue their doctors, a national cap on pain and suffering awards at …

The Government As Litigant: Further Tests Of The Case Selection Model, Theodore Eisenberg, Henry Farber

Cornell Law Faculty Publications

We develop a model of the plaintiff's decision to file a lawsuit that has implications for how differences between the federal government and private litigants translate into differences in trial rates and plaintiff win rates at trial. Our case selection model generates a set of predictions for relative trial rates and plaintiff win rates, depending on the type of case and whether the government is defendant or plaintiff. To test the model, we use data on about 474,000 cases filed in federal district court between 1979 and 1994 in the areas of personal injury and job discrimination, in which the …

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be …

Regulation Of Lawyers Without The Code, The Rules, Or The Restatement: Or, What Do Honor And Shame Have To Do With Civil Discovery Practice?, W. Bradley Wendel

Cornell Law Faculty Publications

One of the most striking things to notice when "looking back" on the regulation of the legal profession is the relative absence of enforceable legal sanctions for unethical behavior by lawyers. Before the promulgation in 1970 of the ABA's Model Code of Professional Responsibility, regulation of the legal profession was largely a matter of a fraternal body taking care of its own, and occasionally expelling miscreants. Now, of course, there is a complex body of law, enforced by courts and regulatory authorities with overlapping jurisdiction, that governs a substantial amount of the day-to-day activities of lawyers.

The hypothesis I explore …

Teaching Civil Procedure Through Its Top Ten Cases, Plus Or Minus Two, Kevin M. Clermont

Cornell Law Faculty Publications

The thesis is that Civil Procedure teachers should give more attention to the subject's landmark cases. Law teachers' common sense and cognitive scientists' schema theory lend support to that thesis. The pedagogic implications of that thesis call for an enriched case method, the essence of which is teaching a slightly smaller number of cases and pausing on the key ones, thoroughly examining them in a rich context. The optimal sources of that context are written case studies, assigned as intermittent supplementation.

Whiplash: Who's To Blame?, Valerie P. Hans, Juliet Dee

Cornell Law Faculty Publications

Tom is sitting in his car at an intersection, waiting for the red light to change. Without warning, the car behind him, driven by a distracted mother named Elaine, slams into the rear of Tom's car. After the accident, Tom experiences severe neck pain, which interferes with his work and family life. Who's to blame?

If Tom suffered physical injury as a result, then under current legal principles she is responsible for compensating him for his injury. However, research on jury decision making in civil cases suggests that a constellation of psychological, legal and political factors operate together to focus …

Litigation Realities, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

After both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the authors draw a series of lessons for understanding and using empirical methods in the study of the legal system's operation. In so doing, they generate implications for current and projected policy debates concerning litigation, while identifying areas that demand further empirical work.

Trial Outcomes And Demographics: Is There A Bronx Effect?, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

Minorities favor injured plaintiffs and give them inflated awards. This folk wisdom in the legal community influences choice of trial locale and the screening of jurors. A Los Angeles court is said to be known by local lawyers as "the bank" because of the frequency and size of its anti-corporate awards. A newspaper article summarizing court results suggests, somewhat jokingly, that the "Bronx County Courthouse should post a warning: People who get sued here run an increased risk of suffering staggering losses." Beliefs about the influence of factors other than race, such as income and urbanization, also are common.

This …

Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells

Cornell Law Faculty Publications

Experimental evidence generated in controlled laboratory studies suggests that the legal system in general, and punitive damages awards in particular, should display an incoherent pattern. According to the prediction, inexperienced decisionmakers, such as juries, should fail to convert their qualitative judgments of defendants' conduct into consistent, meaningful dollar amounts. This Article tests this prediction and finds modest support for the thesis that experience across different types of cases will lead to greater consistency in awards. Despite this support, numerous studies of damage awards in real cases detect a generally sensible pattern of damage awards. This Article tries to reconcile the …

"Speaking Rights": Evaluating Juror Discussions During Civil Trials, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

Permitting jurors to discuss evidence during civil trials may facilitate understanding and provide an outlet for their thoughts and questions, and does not appear to lead to prejudgment or prejudice.

A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin

Cornell Law Faculty Publications

In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars.

The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …

Juries, Judges, And Punitive Damages: An Empirical Study, Theodore Eisenberg, Neil Lafountain, Brian Ostrom, David Rottman, Martin T. Wells

Cornell Law Faculty Publications

This Article, the first broad-based analysis of punitive damages in judge-tried cases, compares judge and jury performance in awarding punitive damages and in setting their levels. Data covering one year of judge and jury trial outcomes from forty-five of the nation's largest counties yield no substantial evidence that judges and juries differ in the rate at which they award punitive damages or in the central relation between the size of punitive awards and compensatory awards. The relation between punitive and compensatory awards in jury trials is strikingly similar to the relation in judge trials. For a given level of compensatory …

In Praise Of Procedure: An Economic And Behavioral Defense Of Smith V. Van Gorkom And The Business Judgment Rule, Lynn A. Stout

Cornell Law Faculty Publications

No abstract provided.

Clear And Convincing Evidence Of Testamentary Intent: The Search For A Compromise Between Formality And Adjudicative Justice, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

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

Cornell Law Faculty Publications

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 …

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

Cornell Law Faculty Publications

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.

Inside The Black Box: Comment On Diamond And Vidmar, Valerie P. Hans

Cornell Law Faculty Publications

It is an honor to be invited to comment on the first publication of the Arizona Jury Project, a study of Arizona juries that includes videotaping and analysis of jury room discussions and deliberations. It is a remarkable and unique project, made possible by an unusual confluence of people, places, and events. In an insightful opinion some years ago, United States Supreme Court Justice Louis Brandeis observed that "[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments …

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

Cornell Law Faculty Publications

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 …

Evidence: 1999-2000 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Damage Awards In Perspective: Behind The Headline-Grabbing Awards In Exxon Valdez And Engle, Theodore Eisenberg

Cornell Law Faculty Publications

Large punitive damages awards in tobacco litigation, the Exxon Valdez oil spill case, and other cases dominate the public perceptions about damages. These large awards and the mass of compensatory awards can be best understood in relation to other awards. In fact, total awards in tried contract cases have risen faster than tort awards. In the highly visible world of large punitive damages awards, the Exxon Valdez award fits well within the traditional pattern of punitive awards. The largest punitive award, that against the tobacco industry in Engle, is best understood against the background of the tobacco industry's national …

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

Cornell Law Faculty Publications

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