Exploring economic and democratic theories of civil litigation: Differences between individual and organizational litigants in the disposition of federal civil cases

Stanford Law Review

Volumn 57, Issue 5, 2005, Pages 1275-1327

  Hadfield, Gillian K ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 33646061659     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (162)

1. See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004);
2. Gillian K. Hadfield, Where Have All The Trials Gone? Settlements, Non-Trial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705 (2004).
3. Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95 (1974).
4. Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 MICH. L. REV. 953 (2000).
5. See JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (1982);
6. John P. Heinz et al., The Changing Character of Lawyers' Work: Chicago in 1975 and 1995, 32 LAW & SOC'Y REV. 751 (1998);
7. Richard H. Sander & E. Douglass Williams, Why Are There So Many Lawyers? Perspectives on a Turbulent Market, 14 LAW & SOC. INQUIRY 431 (1989).
8. Historical studies have examined changes in the appearance and success of individual, government, and corporate entities in state and federal trial courts, but most of these studies examine data prior to 1970. See, e.g., Craig Wanner, The Public Ordering of Private Relations - Part One: Initiating Civil Cases in Urban Trial Courts, 8 LAW & SOC'Y REV. 421 (1974);
9. Stanton Wheeler et al., Do the "Haves" Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970, 21 LAW & SOC'Y REV. 403 (1987).
10. For a survey of this literature and an analysis of more recent data in federal civil cases involving big business (although not taking into account problems in the federal civil database, as discussed infra), see Terence Dunworth & Joel Rogers, Corporations in Court: Big Business Litigation in U.S. Federal Courts, 1971-1991, 21 LAW & SOC. INQUIRY 497 (1996). More recent empirical work assessing Galanter's "party capacity" theory has focused on appellate courts at the state and federal level and has sometimes particularly focused on the relatively small subset of cases involving amici curiae.
11. See Paul Brace & Melinda Gann Hall, "Haves" Versus "Have Nots" in State Supreme Courts: Allocating Docket Space and Wins in Power Asymmetric Cases, 35 LAW & SOC'Y REV. 393 (2001);
12. Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U. ILL. L. REV. 947;
13. Theodore Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. EMPIRICAL LEGAL STUD. 659 (2004);
14. Donald Songer et al., Why the "Haves" Don't Always Come out Ahead: Repeat Players Meet Amici Curiae for the Disadvantaged, 53 POL. RES. Q. 537 (2000);
15. Donald R. Songer & Reginald S. Sheehan, Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeal, 36 AM. J. POL. SCI. 235 (1992). There are a few studies of federal litigation that specifically address issues of whether individual or organizational plaintiffs, for example, are more or less likely to end up in trials and prevail.
16. See Theodore Eisenberg & Henry Farber, The Government as Litigant: Further Tests of the Case Selection Model, 5 AM. L. & ECON. REV. 94 (2003) [hereinafter Eisenberg & Farber, The Government as Litigant];
17. Theodore Eisenberg & Henry S. Farber, The Litigious Plaintiff Hypothesis: Case Selection and Resolution, 28 RAND J. ECON. S92 (1997) [hereinafter Eisenberg & Farber, The Litigious Plaintiff Hypothesis].
18. Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. REV. 982 (2003) (discussing the "trilogy" of cases, especially Celotex Corp. v. Catrett, 477 U.S. 317 (1986), in which the U.S. Supreme Court arguably raised the burden on plaintiffs for surviving summary judgment motions).
19. For an example of a case in which a court appeals overtly to the federal caseload in reviewing summary judgment decisions, see Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506, 517 (6th Cir. 2003) ("We cannot say that the district court's granting summary judgment four days before trial was an abuse of discretion, considering the heavy caseloads under which the district courts labor.").
20. For an example of a court adverting to the temptation to use summary judgment as a mechanism for handling an overburdened docket (and warning against giving in to this temptation), see Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 172 (7th Cir. 1996) ("The heavy caseloads that press on federal district courts today . . . make it tempting to use summary judgment as an abbreviated form of trial. We have warned against yielding to the temptation."); a year later, in Wallace v. SMC Pneumatics, Inc., then-Chief Judge Posner of the Seventh Circuit observed that The expanding federal caseload has contributed to a drift in many areas of federal litigation toward substituting summary judgment for trial. The drift is understandable, given caseload pressures that in combination with the Speedy Trial Act sometimes make it difficult to find time for civil trials in the busier federal districts. But it must be resisted unless and until Rule 56 is modified . . . . 103 F.3d 1394, 1397 (7th Cir. 1997) (internal citations omitted).
21. See, e.g., Paul Butler, The Case for Trials: Considering the Intangibles, 1 J. EMPIRICAL LEGAL STUD. 627 (2004).
22. See, e.g., Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984);
23. David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619 (1995).
24. See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 274 (1984);
25. Judith Resnik, Procedure's Projects, 23 CIV. JUST. Q. 273 (2004).
26. See, e.g., Lucian Arye Bebchuk, Litigation and Settlement Under Imperfect Information, 15 RAND J. ECON. 404 (1984);
27. Daniel Kessler et al., Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation, 25 J. LEGAL STUD. 233 (1996);
28. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984);
29. Steven Shavell, The Social Versus the Private Incentive to Bring Suit in a Costly Legal System, 11 J. LEGAL STUD. 333 (1982);
30. Kathryn E. Spier, Settlement Bargaining and the Design of Damage Awards, 10 J.L. ECON. & ORG. 84 (1994).
31. A recent exception is XINYU HUA & KATHRYN E. SPIER, INFORMATION AND EXTERNALITIES IN SEQUENTIAL LITIGATION (Nat'l Bureau of Econ. Research, Working Paper No. 10943, 2004), available at http://ssrn.com/abstract=556163, in which the authors explicitly take into account the public value of information about risks in achieving optimal levels of accident prevention.
32. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985) (holding that any doubts about the scope of arbitration agreed to should be resolved in favor of arbitration).
33. 9 U.S.C. §§ 1-14 (2000).
34. See Jean R. Sternlight, Panacea or Corporate Tool?: Debunking the Supreme Court's Preference for Binding Arbitration, 74 WASH. U. L.Q. 637, 640 (1996).
35. See, e.g., CAL. EVID. CODE ANN. § 703.5 (West 1995); id. §§ 1119, 1121 (West 1997).
36. The U.S. district court for South Carolina has prohibited the filing of settlement agreements under seal. LOCAL CIV. R. U.S. DIST. CT. DIST. S.C. 5.03(C).
37. See, e.g., Howard v. Drapkin, 271 Cal. Rptr. 893, 901 (Ct. App. 1990) (granting absolute quasijudicial immunity to family law arbitrators in order to attract "to an overburdened judicial system the independent and impartial services and expertise upon which that system necessarily depends").
38. Hadfield, supra note 1.
39. For example, John McGraw set the single season record in 1899 (.548) for the period from 1871 to 1901. Doubleswitch.com, Rate Stats, at http://venus.lunarpages.com/~double2/History/mvpint4.html#ob (last visited Apr. 2, 2005).
40. For a more complete description of these data, see Theodore Eisenberg et al., Litigation Outcomes in State and Federal Courts: A Statistical Portrait, 19 SEATTLE U. L. REV. 433, 435-36 (1996). The data are available from the Inter-University Consortium for Political and Social Research at http://www.icpsr.org and, for 1992, in a convenient statistical inquiry form courtesy of Ted Eisenberg at http://teddy.law.cornell.edu:8090/questata.htm.
41. FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 1970-2000 (database produced by the Federal Judicial Center and distributed by the Interuniversity Consortium for Political and Social Research, 2001).
42. See, e.g., Dunworth & Rogers, supra note 5; Eisenberg & Farber, The Government as Litigant, supra note 5;
43. Eisenberg & Farber, The Litigious Plaintiff Hypothesis, supra note 5;
44. Jason Scott Johnston & Joel Waldfogel, Does Repeat Play Elicit Cooperation? Evidence from Federal Civil Litigation, 31 J. LEGAL STUD. 39 (2002);
45. Peter Siegelman & Joel Waldfogel, Toward a Taxonomy of Disputes: New Evidence Through the Prism of the Priest/Klein Model, 28 J. LEGAL STUD. 101 (1999);
46. Joel Waldfogel, Reconciling Asymmetric Information and Divergent Expectations Theories of Litigation, 41 J.L. & ECON. 451 (1998) [hereinafter Waldfogel, Reconciling Asymmetric Information];
47. Joel Waldfogel, The Selection Hypothesis and the Relationship Between Trial and Plaintiff Victory, 103 J. POL. ECON. 229 (1995) [hereinafter Waldfogel, The Selection Hypothesis].
48. For a more extensive listing of studies relying on the federal AO data, see Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455 (2003).
49. Access to PACER is available at http://www.pacer.psc.uscourts.gov.
50. Eisenberg & Schlanger, supra note 21.
51. Hadfield, supra note 1.
52. By error, I mean a high likelihood that researchers would be led astray if they relied on the disposition codes to be exhaustive and mutually exclusive, such that all settlements appeared coded as settlements and all cases decided on a pretrial motion appeared coded as judged on motion before trial.
53. An initial effort to identify other governments separately from the United States proved excessively labor-intensive and inaccurate because it required specifically identifying ex ante a list of all state and municipal entities. I did correct for a few repeat errors, such as "DC." In the audits I discuss below, I found few government entities other than the United States among the entities coded as organizations.
54. The removed districts were Southern Indiana, Western Wisconsin, Alaska, Central California, and Nevada.
55. The other codes are various kinds of nonfinal dispositions: transfers, remands, bankruptcy stays, di smissals for lack of jurisdiction, and administrative and statistical closures. For purposes of this study, I have assumed these codes are also accurate. While it is important to audit these codes in the future, it was not possible to do so for this project due to time and funding constraints.
56. See Michael Ariens, Know the Law: A History of Legal Specialization, 45 SUP. CT. REV. 1003 (1994); Heinz et al., supra note 4.
57. HEINZ & LAUMANN, supra note 4.
58. Heinz et al., supra note 4, at 766-67.
59. Id.
60. See generally id. (noting that the legal profession can be divided into two broad "hemispheres," one serving large corporations and similar organizations, and the other serving individuals and small businesses).
61. See Rebecca L. Sandefur, Work and Honor in the Law: Prestige and the Division of Lawyers' Labor, 66 AM. SOC. REV. 382 (2001) (discussing lawyers' tendency to value what is "professionally pure," meaning what is free from nonlegal considerations, and the complementary tendency to derogate service to people with limited wealth and power and to prefer service to large, powerful, and wealthy organizations, which presumably entails "purer" professional work).
62. For a discussion of the market for legal services, and in particular the differential between organizational and individual litigants in their participation in this market, see Hadfield, supra note 3.
63. For the complete list, see Appendix, infra pp. 1323-27.
64. I treat these as accurate because the type of auditing available to me - review of the PACER dockets - does not allow an investigation of the errors plaintiffs may have made in filling out this form. Nor am I able to assess the relevance of the (single) nature of suit code selected by the plaintiff in cases that involve multiple causes of action.
65. See Appendix, infra pp. 1323-27, for a full listing of the codes for 1970 and 2000 and the categorization I have applied.
66. See, e.g., Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555 (2003).
67. See, e.g., 28 U.S.C. § 1915 (2000).
68. See, e.g., Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 668 n.124 (1987);
69. Marc Galanter, The Life and Times of the Big Six; or, the Federal Courts Since the Good Old Days, 1988 WIS. L. REV. 921, 928-29.
70. The data in this figure come from the Federal Judicial Center's Integrated Database.
71. In all years, personal injury appears to account for 90% to 95% of all federal tort cases.
72. See generally, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM (1996);
73. RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM (1985).
74. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2003 tbl. HS-1, http://www.census.gov/statab/hist/HS-01.pdf (last visited Apr. 11, 2005).
75. Fed. Reserve Bank of Dallas, U.S. Economic Data, at http://www.dallasfed.org/data/data/gnpcw.tab.htm (last visited Feb. 20, 2005).
76. The jurisdictional minimum was increased from $10,000 to $50,000 in 1988 (it is currently $75,000). See 28 U.S.C. § 1332(a) (2000). Ten thousand dollars in 1970 dollars was equivalent to approximately $ 30,500 in 1988.
77. For the inflation calculator used to obtain this number,see Bureau of Labor Statistics, Inflation Calculator, at http://data.bls.gov/cgi-bin/cpicalc.pl (last visited Apr. 3, 2005).
78. Marc Galanter, Contract in Court; or Almost Everything You May or May Not Want to Know About Contract Litigation, 2001 WIS. L. REV. 577.
79. Ass'n of Trial Lawyers of Am., Do as I Say - Not as I Sue, at http://www.atla.org/homepage/bizvsbiz03.aspx (last visited Apr. 3, 2005).
80. Dunworth & Rogers, supra note 5.
81. Heinz et al., supra note 4.
82. 147 CONG. REC. S9594 (daily ed. Sept. 21, 2001) (statement of Sen. McCain).
83. Id.
84. Id. at S9595 (statement of Sen. Hatch).
85. As of November 2004, approximately forty such cases had produced written opinions on Westlaw (a small subset of all suits filed); some of these have thus far produced multiple opinions. See, e.g., SR Int'l Bus. Ins. Co. Ltd. v. World Trade Ctr. Props. LLC, 2003 WL 554768 (S.D.N.Y. Feb. 26, 2003). One is a large consolidated case addressing the question of whether the plane crashes at the World Trade Center count as one or two events for purposes of applying insurance policy limits. Approximately twenty-one insurance companies, all with separate counsel, are included in this litigation. In re September 11th Liab. Ins. Coverage Cases, 333 F. Supp. 2d 111 (S.D.N.Y. 2004). The cases that were avoided by the VCF have all been consolidated in a single case in the Southern District of New York. In re September 11th Litig., 2003 U.S. Dist. LEXIS 23561 (S.D.N.Y. Dec. 19, 2003). For further discussion of the VCF as a response to perceived problems with litigation, see Gillian K. Hadfield, The September 11th Victim Compensation Fund: "An Unprecedented Experiment in American Democracy," in THE FUTURE OF TERRORISM RISK INSURANCE (Def. Research Inst. ed., forthcoming 2005).
86. Theodore Eisenberg et al., The Predictability of Punitive Damages, 26 J. LEGAL STUD. 623, 636 (1997).
87. See generally Priest & Klein, supra note 10; Shavell, supra note 10.
88. See Fiss, supra note 8; David Luban, Political Legitimacy and the Right to Legal Services, 4 BUS. & PROF. ETHICS 43 (1985); Luban, supra note 8;
89. Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights (pt. 2), 1974 DUKE L.J. 527;
90. see also Alan Wertheimer, The Equalization of Legal Resources, 17 PHIL. & PUB. AFF. 303 (1988) (presenting a philosophical defense of the need to equalize resources among litigants based on distributive justice and fairness concerns).
91. Note, however, that Eisenberg and Farber removed personal injury cases from the tort cases because they were evaluating differences within case types between corporate and individual plaintiffs, and few personal injury lawsuits have corporate plaintiffs. See Eisenberg & Farber, The Litigious Plaintiff Hypothesis, supra note 5, at S99. As I indicated above, in 2000 personal injury cases were over ninety percent of all tort cases in federal court.
92. Id.
93. Id. at S103 tbl. 3, S107-09. Some caution is in order in interpreting these win rates. Eisenberg and Farber calculate a "win" based on whether a judgment was entered for either the plaintiff or defendant. However, as I discuss elsewhere, the "judgment for" variable is not generally entered in cases that are disposed of with a "dismissal" code, although Eisenberg and Schlanger, supra note 21, suggests it is reliable. See Hadfield, supra note 1, at 707. These cases include large numbers of nontrial adjudications in which it can be definitively said that one or the other party won. The "judgment for" variable is thus an incomplete picture of actual case outcomes.
94. Eisenberg and Farber assume that individuals, unlike corporations, may have a taste for litigation and hence there will be greater variability in litigation "costs" (offset by benefits) among individual plaintiffs than is the case among organizational plaintiffs. See Eisenberg & Farber, The Litigious Plaintiff Hypothesis, supra note 5, at S98. This greater variability implies that the individual plaintiffs who choose to file lawsuits will have lower-than-average litigation costs and hence will bring suits that are less likely to be winners. Organizations, on the other hand, are unlikely to bring low-expected-value suits.
95. See, e.g., Dunworth & Rogers, supra note 5, at 558 tbl. 10.
96. For example, under the Civil Rights Act, 42 U.S.C. § 1983 (2000), a person acting in his or her official capacity may nonetheless also be held personally liable. Hafer v. Melo, 502 U.S. 21 (1991). Pam Karlan has suggested to me, however, that in many cases even officials who are sued in their individual capacity under § 1983 may not experience the lawsuit as one against them personally. This emphasizes the complexity of identifying litigant type and the degree of "corporateness" in these cases.
97. To test this, I performed a Tukey-Kramer multiple comparisons test for each case type error across case dispositions. With a few minor exceptions, all comparisons showed no significant differences. I have chosen to ignore these exceptions in my analysis because of their low frequency and hence their minimal effect on the results.
98. In auditing case type, I removed repeated cases, including cases that were consolidated or disposed of together. In particular, I removed cases involving Liberty Mutual, Owens Corning, or the A-C Products Liability Trust as defendants.
99. These numbers would be substantially lower if we chose to categorize individuals sued in their official capacity as individuals, and somewhat higher, because this is a low-frequency occurrence, if we chose to count instances of "dba" as organizations.
100. The data in this table exclude prisoner petitioners, forfeiture and seizure cases, and student loan and overpayment recoveries.
101. As Hadfield, supra note 1, and the audits, infra p. 1309, of the "voluntary dismissal" code indicate, it may be that a significant fraction of these are settled; coded settlements (disposition code 13) are only about three percent of the total, however. This is likely to be a case in which any settlements are entered as consent judgments in order to generate the judgment necessary for enforcement procedures.
102. The United States was a plaintiff in approximately 12% of all federal civil litigation in 2000; as we have seen, 70% of these cases were for the collection of student loans.
103. For a detailed discussion of the nature of prisoner litigation, see Schlanger, supra note 39.
104. Without more detailed analysis, it is not possible to say reliably what the I v. I and O v. I cases look like.
105. Unfortunately, I cannot offer the same conjecture about the 1980 and 1990 data. A cursory review of the results of applying the basic case type coding method to those years indicates that there is substantial error caused by a more widespread practice in those years of including the first name or initials of an individual in the party name. This is an error that is simply too labor-intensive to correct unless it is confined to a relatively small number of districts, which was the case with 1970 and 2000. I have already removed from the 2000 and 1970 data the districts for which this appears to be a problem. See, e.g., supra note 27.
106. The data in this table exclude prisoner petitioners, forfeiture and seizure cases, and student loan and overpayment recoveries.
107. See, e.g., Dunworth & Rogers, supra note 5; Eisenberg & Farber, The Government as Litigant, supra note 5;
108. Eisenberg & Farber, The Litigious Plaintiff Hypothesis, supra note 5; Johnston & Waldfogel, supra note 21; Schlanger, supra note 39;
109. Waldfogel, Reconciling Asymmetric Information, supra note 21. Siegelman and Waldfogel, supra note 21, uses the "judgment for" variable, but this implicitly relies, as it turns out, on the "disposition" variable. This is because, at least in 2000, the "judgment for" variable is coded only in cases in which a "judgment" disposition code is entered; that is, cases with disposition codes 12, 13, or 14 - in which we do indeed find significant numbers of nontrial adjudications - do not have a corresponding "judgment for" entry; appeals from magistrates are also predominantly coded as "unknown" judgments. In these studies, therefore, all of these dispositions are incorrectly treated as settlements.
110. See, e.g., Stephen Burbank, Keeping Our Ambition Under Control: The Limits of Data and Inference in Searching for the Causes and Consequences of Vanishing Trials in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 571, 580 (2004).
111. See, e.g., Eisenberg & Schlanger, supra note 21; Hadfield, supra note 1.
112. The sample size for this table is 1119.
113. The sample size for this table is 2709.
114. See Galanter, supra note 1.
115. The sample size for this table is 17,322.
116. The audits conducted for this Article identified an error in the sampling for the audits I conducted in previous work, in which disposition code 6 appeared highly unreliable, with error rates on the order of 70%. See Hadfield, supra note 1, at 726. The audits I report here are the ones I consider accurate.
117. I conducted significance tests using the Tukey-Kramer multiple comparisons tests. All differences apparent in the table are significant at the 0.01 level or better, with the exception of the difference between I v. I and I v. O and the difference between O v. I and O v. O.
118. Tukey-Kramer significance tests again show the differences apparent in the table to be significant at the .05 level or better, with the exception of the difference between I v. I and I v. O and the difference between O v. I and O v. O.
119. Tukey-Kramer significance tests show all differences to be significant at the .001 level, with the exception of the difference between I v. I and I v. O.
120. The sample size for this table is 4781.
121. Tukey-Kramer tests show the differences reported in the text to be significant at the .001 level; the differences between I v. I and I v. O, and between O v. I and O v. O, are not significant.
122. The differences apparent in the table are all significant at the .05 level or better with the exceptions of the following: I v. I and I v. O, O v. I and O v. O, and I v. I and O v. I. I can still make the claim that the difference between individual and organizational plaintiff cases are significantly different, however, because of the greater frequency of I v. O cases among individual plaintiff cases.
123. The differences in nonfinal dispositions are not significant, with the exception of I v. I as compared to O v. I. The differences in default dispositions are all significant with the exceptions of I v. I and I v. O, and I v. I and O v. O.
124. The differences shown in Table 8 with respect to bench decisions are not significant with the exception of the differences between O v. O and individual plaintiff cases.
125. The sample size for this table is 18,516.
126. These differences are significant at the .01 level or better; the settlement and nonfinal differences between I v. I and I v. O, and between O v. I and O v. O cases, are not significant.
127. This is based on the raw case type coding; however as my audits demonstrate, the errors in raw case type coding generally involve errors in defendant, not plaintiff, coding.
128. The sample size for this table is 47,793.
129. None of the differences in the table is significant.
130. The sample size for this table is 20,138.
131. The differences in the table are significant at the .05 level or better, with the exception of the difference between I v. I and I v. O and the difference between O v. I and O v. O.
132. The differences between I v. O, O v. I, and O v. O are not significant; the differences between I v. I and both O v. I and O v. O are significant at the .05 level or better.
133. See sources cited supra note 5.
134. I have argued elsewhere that there may be no good reason for the state to provide, for example, commercial contract law or corporate law, and that indeed, private competitive entities may do a better job of providing efficient commercial and corporate law than the state. See Gillian K. Hadfield, Delivering Legality on the Internet: Developing Principles for the Private Provision of Commercial Law, 6 AM. L. & ECON. REV. 154 (2004);
135. Gillian K. Hadfield, Privatizing Commercial Law, REGULATION, Spring 2001, at 40 (2001);
136. Gillian Hadfield & Eric Talley, On Public Versus Private Provision of Corporate Law (Ctr. in Law, Econ. & Org. Research Paper Series, Paper No. C04-13, 2004), available at http://ssrn.com/abstract=570641.
137. For other studies that look at differences between individual and organizational (corporate and/or government) litigants in the disposition of cases, see Dunworth & Rogers, supra note 5; Eisenberg & Farber, The Government as Litigant, supra note 5;
138. Eisenberg & Farber, The Litigious Plaintiff Hypothesis, supra note 5;
139. Waldfogel, Reconciling Asymmetric Information, supra note 21;
140. Waldfogel, The Selection Hypothesis, supra note 21.
141. Hadfield, supra note 1.
142. Galanter, supra note 1.
143. Herbert Kritzer, Adjudication to Settlement: Shading in the Gray, 70 JUDICATURE 161, 161-65 (1987);
144. Carl Baar, The Myth of Settlement 1 (May 28, 1999) (unpublished manuscript presented at the Annual Meeting of the Law and Society Association, Chicago, Ill.; on file with author); see also Burbank, supra note 76.
145. As I was not investigating this question at the outset of my study, I did not design the audits to collect this information systematically. My observations are based on my anecdotal assessment of the dockets I reviewed.
146. I treat a dismissal for lack of personal jurisdiction as a nonfinal termination and assume that all cases coded as "dismissed for lack of jurisdiction" ("3") are nonfinal. I treat a dismissal for lack of subject matter jurisdiction as a final termination unless the docket indicates otherwise.
147. These estimates were constructed by combining the audited code results with the unaudited code counts and treating the combined results as a disproportionate sample. Given the finding that case type coding errors do not appear to vary across disposition codes, and the small standard errors for the pooled results (see Table 1), I adjusted the raw case types to true case types without accounting for this error. I then used these adjusted case types to calculate weights for each disposition code for each true case type, and used the audit results presented in Tables 5 through 11 to translate codes into true dispositions. I assumed that the unaudited codes were accurate.
148. Tukey-Kramer multiple comparisons tests confirm that these differences are significant at the .05 level or better; the differences between I v. I and I v. O cases, and between I v. I and O v. O cases, are not significant.
149. These differences are all significant at the .001 level.
150. These differences are significant at the .001 level, with the exception of the difference between I v. I and I v. O.
151. These differences are significant at the .01 level or better; none of the other differences in settlement rates in Table 12 is significant.
152. These differences are significant at the .01 level or better, with the exception of the differences between I v. I and I v. O and between O v. I and O v. O.
153. These differences are significant at the .05 level; other differences in bench decision rates apparent in Table 12 are not significant.
154. The differences in jury and directed verdict rates are significant at the .001 level; the only difference in jury and directed verdict rates that is not significant is that between O v. I and O v. O cases.
155. Performing Tukey-Kramer tests on the sums of bench decisions and jury and directed verdicts, the differences are significant at the .01 level or better; the difference between I v. I and I v. O and the difference between O v. I and O v. O are not significant.
156. See Galanter, supra note 1, at 459.
157. There is a small difference coming from the fact that not all dispositions coded as bench decisions are correctly coded for "bench trial" in the procedural progress variable.
158. The rates in Tables 13 and 14 were calculated by applying the frequencies in Table 12 to an estimate of the true count of case types, subtracting out first nonfinal dispositions (Table 13) and then defaulted and abandoned cases (Table 14). The method is approximate due to rounding error.
159. Eisenberg & Farber, The Litigious Plaintiff Hypothesis, supra note 5.
160. Id.
161. This is what Dunworth and Rogers suggest. Dunworth & Rogers, supra note 5, at 527-35.
162. At least one RAND study suggests that individuals in tort cases prefer more formal, dignified, and adjudicatory methods of case disposition to informal settlement procedures. E.A. LIND ET AL., RAND INST. FOR CIVIL JUSTICE, THE PERCEPTION OF JUSTICE: TORT LITIGANTS' VIEWS OF TRIAL, COURT-ANNEXED ARBITRATION, AND JUDICIAL SETTLEMENT CONFERENCES (1989).