Building A Taxonomy Of Litigation: Clusters Of Causes Of Action In Federal Complaints,
2013
Washington University School of Law
Building A Taxonomy Of Litigation: Clusters Of Causes Of Action In Federal Complaints, Christina L. Boyd, David A. Hoffman, Zoran Obradovic, Kosta Ristovski
Scholarship@WashULaw
This project empirically explores civil litigation from its inception by examining the content of civil complaints. We utilize spectral cluster analysis on a newly compiled federal district court dataset of causes of action in complaints to illustrate the relationship of legal claims to one another, the broader composition of lawsuits in trial courts, and the breadth of pleading in individual complaints. Our results shed light not only on the networks of legal theories in civil litigation but also on how lawsuits are classified and the strategies that plaintiffs and their attorneys employ when commencing litigation. This approach permits us to …
Litigating Toward Settlement,
2013
Washington University in St. Louis School of Law
Litigating Toward Settlement, Christina L. Boyd, David A. Hoffman
Scholarship@WashULaw
Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially non-discovery motions, can substantially shape parties’ knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process, including that the filing of a motion significantly speeds case settlement, that granted motions are more immediately critical to settlement timing than motions denied, and that plaintiff victories have a stronger effect than defendant victories. These results provide …
When Is Finality Final? Second Chances At The Supreme Court,
2013
William & Mary Law School
When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.
Prison Is Prison,
2013
Seattle University School of Law
Prison Is Prison, Brooke Coleman
Faculty Articles
Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and …
A Twice-Told Tale: Plausibility And Narrative Coherence In Judicial Storytelling,
2013
Seattle University School of Law
A Twice-Told Tale: Plausibility And Narrative Coherence In Judicial Storytelling, Chris Rideout
Faculty Articles
What makes the stories told in court believable, and thus convincing? Part of the answer, this article suggests, lies in narrative coherence. Stories “make sense” and are plausible, not because they necessarily correspond in a direct way to “what really happened,” but rather because they seem structurally whole, consistent, and complete. They have achieved narrative coherence. After considering the role of narrative coherence in the plausibility of narratives, the article presents a typology for narrative coherence, breaking it down into external and internal coherence, with further component parts to each one. The article then turns to the Supreme Court case …
Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions,
2013
Seattle University School of Law
Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts
Faculty Articles
Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror …
Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny,
2013
Seattle University School of Law
Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman
Faculty Articles
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a …
Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States,
2013
Allard School of Law at the University of British Columbia
Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel
All Faculty Publications
This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …
Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research,
2013
Allard School of Law at the University of British Columbia
Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe
All Faculty Publications
Austin Sarat has described legal understandings of the transcript as “the verbatim record of a present soon to become past, a mirror/a record/a voice machine in which the “author” exercises no authorial presence.” In this paper I argue that when seeing a transcript as an authorless mirror of court proceedings, lawyers and socio-legal scholars risk overlooking the ways in which the technology of transcripts influences the record that is produced. Paying attention to the laws and practices governing transcript production allows those who engage in transcript research to appreciate how the transcript is defined in relation to the spoken proceedings …
Dogs And Tails: Remedies In Administrative Law,
2013
Allard School of Law at the University of British Columbia
Dogs And Tails: Remedies In Administrative Law, Cristie Ford
All Faculty Publications
Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …
Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan,
2013
Allard School of Law at the University of British Columbia
Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui
All Faculty Publications
The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature's intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial troubles, …
Federalism, Liberty, And Equality In United States V. Windsor,
2013
Duke Law School
Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel
Faculty Scholarship
This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.
The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model,
2013
University of Michigan Law School
The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld
Articles
On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL …
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff,
2013
University of Michigan Law School
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi
Articles
In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker,
2013
University of Michigan Law School
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi
Articles
This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …
Prometheus Rebound: Diagnostics, Nature, And Mathematical Algorithms,
2013
University of Michigan Law School
Prometheus Rebound: Diagnostics, Nature, And Mathematical Algorithms, Rebecca S. Eisenberg
Articles
The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions. First, the Court took an expansive approach to what counts as an unpatentable natural law by applying that term to the relationship set forth in the challenged patent between a patient’s levels of a drug metabolite and the indication of a need to adjust the patient’s drug dosage. And second, in evaluating whether the patent claims add enough to this unpatentable natural law to be patent eligible, the Court did not consult precedents concerning the …
Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics,
2013
University of Michigan Law School
Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger
Articles
The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan,
2013
University of Michigan Law School
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
Articles
The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures,
2013
University of Michigan Law School
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Articles
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …
The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg,
2013
University of Michigan Law School
The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer
Articles
First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …
