Thanks so much to Jason Czarnezki for inviting me to do this stint of guest blogging. It's a great pleasure to participate in this site, which has already become so useful.
We'll see if I stick with it, but my current plan for my postings this week is to focus on the challenges and some new resources for those who wish to study trial court litigation, which has received less than its due in terms of scholarly attention. I'll write about some new things I know about; I hope those who read these posts will share information about other innovations.
Obviously, trial courts see the most activity of any level of courts (in 2005, for example, there were 68,000 federal appeals filed, compared to 323,000 trial level filings in U.S. District Courts. (see http://www.uscourts.gov/judbus2005/contents.html) If courts are seen as fora for disputing, rather than arenas in which law is contested and made, the trial courts are clearly where the action is. Even if the focus is on lawmaking, given the greater tendency of courts of appeals to affirm rather than reverse, a great deal of precedential law owes its existence to trial judge decisionmaking.
So why the sparseness of the trial court literature? The thing about trial courts, including the federal district courts, is that they are so difficult to study. Outcomes aren't binary, and decisionmaking isn't one-shot. Instead, the sequential nature of litigation and the large range of possible outcomes (unilateral withdrawal; adjudication on the law for one or the other side; adjudication on the facts for one or the other side; settlement; etc.) means that to study trial courts one needs much more and different material than has normally been available. For reasons I'll discuss in a future post, the dataset on case terminations made available by the Administrative Office of the U.S. Courts is useful, but limited. And opinions are a good source if one wishes to understand the promulgation of law at the lower levels, but not for many of the most important research questions about either outcomes or process.
There are several problems with using trial court opinions to study almost anything other than trial court opinions. First, opinions almost never cover many of the types of outcomes that matter (jury determinations and settlements, in particular). Indeed, opinions may or may not be about outcomes altogether; an opinion may rather concern attorneys fees or an evidentiary dispute, or whatever.
Second, even if the research question concerns judicial adjudication rather than outcomes, opinions are almost certainly an extremely biased source. Even putting to one side any strategic factors in a judge's decision to write or rule without writing, or to label a ruling an "order" (which is unpublished and not generally available) or an "opinion" (which is usually published), there are district court judges who hardly ever write opinions, preferring to rule from the bench whenever they can. Others publish many opinions each year. Other biases are obvious, but similarly unstudied. For example, I did a small study of opinion writing in federal district court cases in 2004; I compared the number of cases reportedly terminated in each district with the number of opinions available via Westlaw for that district. The resulting proportion ranged from a fraction of 1% (in 10 districts, which ranged from very low to very high volume) to over 25% (in 12 districts, similarly varied). (The study, which I summarized in an article available here, is itself available here).
The point is that to understand what goes on in trial courts requires a data infrastructure that has not yet been developed. So I'm going to blog over the next couple of days about a few small steps that have started down this path. (I may also take a stab at setting out some thoughts on some analytic approaches that might help in the same set of projects).
The first new datasource I'll mention is one dear to my heart; it's called the Civil Rights Litigation Clearinghouse, and it opened for public access just this month, at http://clearinghouse.wustl.edu. My colleague Andrew Martin, when he guest blogged on this site, posted a description of the web-based data collection tool the underlies the Clearinghouse. And I've just published (with Denise Lieberman) a little article about using the Clearinghouse.
The Clearinghouse collects documents and data about civil rights injunctive cases (currently about a thousand of them and growing) in selected case categories across the United States. The categories posted include: conditions in a variety of closed institutions (jails, juvenile institutions, prisons, mental health facilities, mental retardation facilities, and nursing homes), child welfare, election/voting rights, immigration, police profiling, other policing, public housing desegregation, school desegregation.
For each included case, we have attempted to gather the crucial documents, including: the trial court docket sheet, the complaint, any decrees issued by courts or agreed to by parties, and any opinions. (For opinions published via Lexis or Westlaw, we provide links rather than the opinions themselves.) For many of the cases, this is the first time this kind of information has been available to researchers. We also provide at least some information about each case: where, when, what was involved, who the lawyers were, who the judges were, outcome, etc.
Hopefully, the Clearinghouse can be useful for research about litigation. In most categories it uses neither a random nor a comprehensive sample (there's more about the selection criteria in each case category on the site), so using it for certain types of quantitative work would be pretty tricky. But it can certainly be used in many ways for qualitative work, and for some quantitative projects. Other kinds of projects will be possible in the future: The election law/voting rights part of the collection is a comprehensive sample of federal cases about voting from 1993 to 2005 (though its processing is not yet complete); and Andrew Martin, Pauline Kim, and I hope to use the Clearinghouse's basic framework to gather data relating to equal employment cases brought by the EEOC, starting as early as this spring (we'll see if we get funding).
In any event, the Clearinghouse provides a vastly larger window into case outcomes and processes in injunctive litigation than has previously been available, so it should allow scholars to better study the interplay of law and public policy. Instead of searching through reported opinions, knowing that such opinions are unrepresentative but unable to get access to the "law in action," researchers can use the Clearinghouse to gain access to the outcomes and also the post-decree activity in civil rights cases, to look at the course of the litigation involved, and to obtain records and do searches unavailable elsewhere. So I hope it proves a useful data resource for study of trial courts and trial court litigation.
More tomorrow about the terminations database of the Administrative Office of the U.S. Courts; its uses and limitations.