Empirical Legal Studies

Plaintiffs' Fate on Appeal

My colleague Ted Eisenberg, along with Henry Farber (Princeton), continue their collaborative work exploring the many puzzles incident to appellate civil litigation in the federal courts. Their recent effort, Why Do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates?, takes up why plaintiffs who lose at trial and subsequently appeal are less successful on appeal than are losing defendants who appeal. Ex ante, there is little to explain why such an asymmetry exists between plaintiff and defendants. By matching federal district court trial outcomes and appeals to the circuit courts, the paper develops (and tests) a model that bears not only on appellate outcomes but appellate rates as well. The abstract follows.

"Multiple studies find that plaintiffs who lose at trial and subsequently appeal are less successful on appeal than are losing defendants who appeal. The studies attribute this to a perception by appellate judges that trial courts are biased in favor of plaintiffs. However, at least two alternative explanations exist. First, losing plaintiffs may appeal at higher rates independent of the potential merits. Second, if plaintiffs tend to pursue to trial lawsuits where they should win on the merits less than half the time, then errors at trial will be more likely to adversely affect defendants. This study revisits the analysis of the appellate process with a theoretical model that has implications not only for appellate outcomes but for the rate of appeal. By tying together win rates at trial, appeals rates, and success rates on appeal, the model can distinguish the competing explanations for differential appellate success rates. We estimate this model using matched data on Federal District Court trials and appeals to the U. S. Circuit Courts of Appeal. We provide evidence that the lower plaintiff success rate on appeal is due to plaintiffs' pursuing lawsuits where they should win on the merits (which we define to be an outcome that will not be reversed or remanded on appeal) less than half the time. We also provide evidence against explaining asymmetric success on appeal being attributable to trial courts favoring plaintiffs and evidence against juries being favorable to plaintiffs compared to judges."

Judges (and Justices), Judicial Opinions, and Legal Scholarship

Forging ahead on a trail previously blazed by Judge Harry Edwards, Chief Justice Roberts recently endorsed the "disconnect thesis" by noting the separation between legal academics and the practicing Bar. CJ Roberts made clear his view that legal scholarship simply doesn't help judges all that much.

While Tun-Jen Chiang's (George Mason) post on PrawfsBlawg details what was said (and what was not said and how to interpret all of this), of more interest to me is subjecting CJ Robert's premise to data.

And this is where a recent paper by Lee Petherbridge (Loyola-LA) and Dave Schwartz (Chicago-Kent) comes in. An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship does just that and will interest those engaged in this debate. The abstract follows.

"Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been none other than the Chief Justice of the U.S. Supreme Court, John G. Roberts Jr. His most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy détente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Justice Roberts’s recent comments represent a vigorous invitation to a discussion, which this article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This article presents several surprising results and makes two major novel contributions. The first is evidence describing the amount and patterns of the Supreme Court’s use of legal scholarship over the last sixty-one years. The second, and perhaps most striking contribution of this article, is empirical evidence on the nature and quality of the Court’s use of scholarship. This article provides the first report, as far as we can determine, of evidence that the Supreme Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results strongly counterintuitive to claims that scholarship is useless or irrelevant to judges and practitioners. The article also discusses areas for future work."

Transformative Law Deans

I couldn't help noting that among the nine law school Deans that Brian Leiter characterizes as "transformative" during the past decade, at least two (Syverud and Van Zandt) were expressly noted for building a "strong empirical studies presence." The tally goes to three (of nine) if one construes (as one objectively should) the description of Hurd's decanal tenure at Illinois ("cutting edge of interdisciplinary work in multiple areas") as a clear--albeit indirect--reference to her efforts to enhance that faculty's capacity for empirical legal research. As Brian's post correctly notes, the actual number of plausibly "transformative" Deans exceeds (but surely includes) the nine highlighted. I also strongly suspect that the correlation between the list of transformative Deans and a law school's capacity for serious empirical work is both positive and robust.

Data on 2010 Bar Exam "Cut" Scores & Pass Rates

Although many recent law grads are in the final throes of Bar exam preparation, I thought linking to a recent post studying the relation between Bar exam "cut" scores and pass rates (for first-time test takers from ABA-approved law schools) across states would not unduly increase exam anxiety. As Gary Rosin's (South Texas) post at The Faculty Lounge makes clear, the relation is more-or-less linear and negative. (By "negative" I mean only that as cut scores increase pass rates decrease.) Also clear is a surprising (to me, anyway) degree of variation in cut scores across states (in 2010).

CELS Submission Deadline Extended Until Tuesday, July 12, 2011

EXTENDED submission deadline:  July 12, 2011, midnight (Chicago time).

SIXTH ANNUAL CONFERENCE ON EMPIRICAL LEGAL STUDIES (CELS)

to be held at Northwestern Law School

Friday November 4 & Saturday Nov. 5, 2011

Those scrambling to meet the CELS submission deadline can exhale a bit. CELS organizers have extended the submission deadline until Tuesday, July 12, 2011, midnight (Chicago time).

The Sixth Annual Conference on Empirical Legal Studies (CELS 2011) is sponsored by the Society for Empirical Legal Studies (SELS) and the Searle Center on Law, Regulation, and Economic Growth at Northwestern Law School.  CELS accepts empirical papers spanning all areas of empirical legal studies.

For conference submission information click here.

Data on Legal Market and Law School Enrollment Patterns

Over at Balkinization, Brian Tamanaha (Wash U) assesses trends involving the market demand for new attorneys and law school enrollment (here). As Brian notes, "law schools now pump out about 45,000 graduates annually at a time when the Bureau of Labor Statistics projects about 28,000 new lawyer positions per year." Why? Brian argues that the current law school business model demands as much. Specifically, law faculties have gotten bigger during the past two decades and, as a result, "bigger faculties must be paid for through some combination of more bodies (J.D. and LL.M) and higher tuition." Not surprisingly, Brian predicts "tough times" for many law schools in the future.

UPDATE: Ted Seto's (Loyola-LA) alternative interpretation of the data also warrants note.