Law and Economics Commons^™

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective …

Material Facts In The Debate Over Twombly And Iqbal, Jonah B. Gelbach

All Faculty Scholarship

This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.

I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” …

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven M. Davidoff

All Faculty Scholarship

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result …

Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach

All Faculty Scholarship

In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to …

Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach

All Faculty Scholarship

No abstract provided.

Shleifer's Failure, Jonathan Klick

All Faculty Scholarship

No abstract provided.

Locking The Doors To Discovery? Assessing The Effects Of Twombly And Iqbal On Access To Discovery, Jonah B. Gelbach

All Faculty Scholarship

Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for party selection—changes in party behavior that can be expected following changes in pleading standards. In this Note, I show how party selection can be expected to undermine the empirical usefulness of simple grant-rate comparisons. I then use a conceptual model of party behavior that allows me to derive an adjusted measure of Twombly/Iqbal’s impact and show …

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

All Faculty Scholarship

Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, …

Does Anyone Get Stopped At The Gate? An Empirical Assessment Of The Daubert Trilogy In The States, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Supreme Court’s trilogy of evidence cases, Daubert, Joiner, and Kumho Tire appear to mark a significant departure in the way scientific and expert evidence is handled in federal court. By focusing on the underlying methods used to generate the experts’ conclusions, Daubert has the potential to impose a more rigorous standard on experts. Given this potential, some individuals have called for states to adopt the Daubert standards to purge “junk science” from state courts. However, there is relatively little empirical support for the notion that Daubert affects the quality of expert evidence. Using a large dataset of state court …

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

All Faculty Scholarship

Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.