메뉴 건너뛰기




Volumn 2007, Issue 1, 2007, Pages 107-149

Publish or perish: The electronic availability of summary judgments by eight district courts

Author keywords

[No Author keywords available]

Indexed keywords


EID: 34948856036     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (20)

References (102)
  • 1
    • 34948885333 scopus 로고    scopus 로고
    • AM. COLL. OF TRIAL LAWYERS, THE VANISHING TRIAL: THE COLLEGE, THE PROFESSION, THE CIVIL JUSTICE SYSTEM (2004), available at http://www.actl.com/AM/Template.cfm? Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentFileID= 57 (last visited Mar. 1, 2007).
    • AM. COLL. OF TRIAL LAWYERS, THE "VANISHING TRIAL": THE COLLEGE, THE PROFESSION, THE CIVIL JUSTICE SYSTEM (2004), available at http://www.actl.com/AM/Template.cfm? Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentFileID= 57 (last visited Mar. 1, 2007).
  • 2
    • 0041654697 scopus 로고    scopus 로고
    • 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 NYUL. REV. 982 (2003).
    • 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 NYUL. REV. 982 (2003).
  • 3
    • 0041705116 scopus 로고    scopus 로고
    • Summary Judgment at Sixty, 76
    • Patricia M. Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1942 (1998).
    • (1998) TEX. L. REV. 1897 , pp. 1942
    • Wald, P.M.1
  • 4
    • 34948854981 scopus 로고    scopus 로고
    • Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986);
    • Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986);
  • 5
    • 34948823021 scopus 로고
    • Inc, 477 U.S. 242
    • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
    • (1986)
    • Liberty Lobby, A.1
  • 6
    • 34948834890 scopus 로고    scopus 로고
    • Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
    • Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
  • 7
    • 34948856620 scopus 로고    scopus 로고
    • Paul W. Mollica, Federal Summary Judgment at High Tide, 84 MARQ. L. REV. 141, 164 (2000).
    • Paul W. Mollica, Federal Summary Judgment at High Tide, 84 MARQ. L. REV. 141, 164 (2000).
  • 8
    • 34948819384 scopus 로고    scopus 로고
    • Milton I. Shadur, Trials or Tribulations (Rule 56 Style)?, 29 LITIGATION 5, 5 (2003).
    • Milton I. Shadur, Trials or Tribulations (Rule 56 Style)?, 29 LITIGATION 5, 5 (2003).
  • 9
    • 34948887903 scopus 로고    scopus 로고
    • See, e.g., Marc S. Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004).
    • See, e.g., Marc S. Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004).
  • 10
    • 34948874451 scopus 로고    scopus 로고
    • See infra Part II.D.1-3. See generally Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 604-05 & nn.53-56 (2004) (identifying seven empirical studies of FRCP 56 that rely, or rely primarily, on published (or otherwise reported) decisions).
    • See infra Part II.D.1-3. See generally Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 604-05 & nn.53-56 (2004) (identifying seven empirical studies of FRCP 56 that "rely, or rely primarily, on published (or otherwise reported) decisions").
  • 11
    • 34948902484 scopus 로고    scopus 로고
    • See infra Part II.C.
    • See infra Part II.C.
  • 12
    • 34948879835 scopus 로고    scopus 로고
    • 398 U.S. 144, 153 (1970).
    • 398 U.S. 144, 153 (1970).
  • 13
    • 34948857656 scopus 로고    scopus 로고
    • 475 U.S. 574, 587 (1986).
    • 475 U.S. 574, 587 (1986).
  • 15
    • 34948905444 scopus 로고    scopus 로고
    • Id. at 599 (White, J., dissenting).
    • Id. at 599 (White, J., dissenting).
  • 18
    • 34948851519 scopus 로고    scopus 로고
    • Miller, supra note 2, at 1033, and in controversies (like alleged antitrust violations) with heavy public-policy overtones.
    • Miller, supra note 2, at 1033, and in controversies (like alleged antitrust violations) with "heavy public-policy overtones."
  • 19
    • 34948814280 scopus 로고    scopus 로고
    • See Wald, supra note 3, at 1907-08.
    • See Wald, supra note 3, at 1907-08.
  • 20
    • 34948840157 scopus 로고    scopus 로고
    • 477 U.S. 242, 248-50 (1986).
    • 477 U.S. 242, 248-50 (1986).
  • 21
    • 34948897215 scopus 로고    scopus 로고
    • Id. at 250 (citing Brady v. S. Ry. Co., 320 U.S. 476, 479-80 (1943)).
    • Id. at 250 (citing Brady v. S. Ry. Co., 320 U.S. 476, 479-80 (1943)).
  • 22
    • 34948815793 scopus 로고    scopus 로고
    • Id. at 248
    • Id. at 248.
  • 23
    • 34948865404 scopus 로고    scopus 로고
    • See id. at 256 (The movant has the burden of showing that there is no genuine issue of fact, but the [nonmovant] is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.).
    • See id. at 256 ("The movant has the burden of showing that there is no genuine issue of fact, but the [nonmovant] is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.").
  • 24
    • 34948829826 scopus 로고    scopus 로고
    • Id. at 252
    • Id. at 252.
  • 25
    • 34948822506 scopus 로고    scopus 로고
    • Id. at 248
    • Id. at 248.
  • 26
    • 34948892294 scopus 로고    scopus 로고
    • Id. at 252
    • Id. at 252.
  • 27
    • 34948869058 scopus 로고    scopus 로고
    • 477 U.S. 317, 327 (1986) (quoting FED. R. CIV. P. 1).
    • 477 U.S. 317, 327 (1986) (quoting FED. R. CIV. P. 1).
  • 28
    • 34948880396 scopus 로고    scopus 로고
    • Id
    • Id.
  • 30
    • 77950444770 scopus 로고    scopus 로고
    • note 2, at, One study of cases involving the admissibility of expert evidence found that courts awarded nearly 90% of summary judgments to defendants
    • Miller, supra note 2, at 1040. One study of cases involving the admissibility of expert evidence found that courts awarded nearly 90% of summary judgments to defendants.
    • supra , pp. 1040
    • Miller1
  • 31
    • 34948880916 scopus 로고    scopus 로고
    • LLOYD S. DIXON & BRIAN GILL, CHANGES IN THE STANDARDS FOR ADMITTING EXPERT EVIDENCE IN FEDERAL CIVIL CASES SINCE THE DAUBERT DECISION 62 (2001).
    • LLOYD S. DIXON & BRIAN GILL, CHANGES IN THE STANDARDS FOR ADMITTING EXPERT EVIDENCE IN FEDERAL CIVIL CASES SINCE THE DAUBERT DECISION 62 (2001).
  • 32
    • 34948872232 scopus 로고    scopus 로고
    • Celotex, 477 U.S. at 321-22 (citing Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 184 (1985)).
    • Celotex, 477 U.S. at 321-22 (citing Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 184 (1985)).
  • 35
    • 34948813770 scopus 로고    scopus 로고
    • See Miller, supra note 2, at 1038-39
    • See Miller, supra note 2, at 1038-39.
  • 36
    • 34948893637 scopus 로고    scopus 로고
    • Miller, supra note 2, at 1042
    • Miller, supra note 2, at 1042.
  • 37
    • 34948880915 scopus 로고    scopus 로고
    • See, e.g., id. at 1041 (Celotex has made it easier to make the motion, and Anderson and Matsushita have increased the chances that it will be granted.).
    • See, e.g., id. at 1041 ("Celotex has made it easier to make the motion, and Anderson and Matsushita have increased the chances that it will be granted.").
  • 38
    • 34948880397 scopus 로고    scopus 로고
    • Wald, supra note 3, at 1941. Judge Patricia Wald's piece is typical of the alarmism that some judges and commentators might genuinely feel. For example, she argued that [summary judgment's] expansion across subject matter boundaries and its frequent conversion from a careful calculus of factual disputes (or the lack thereof) to something more like a gestalt verdict based on an early snapshot of the case have turned it into a potential juggernaut which, if not carefully monitored, could threaten the relatively small residue of civil trials that remain.
    • Wald, supra note 3, at 1941. Judge Patricia Wald's piece is typical of the alarmism that some judges and commentators might genuinely feel. For example, she argued that [summary judgment's] expansion across subject matter boundaries and its frequent conversion from a careful calculus of factual disputes (or the lack thereof) to something more like a gestalt verdict based on an early snapshot of the case have turned it into a potential juggernaut which, if not carefully monitored, could threaten the relatively small residue of civil trials that remain.
  • 39
    • 34948858655 scopus 로고    scopus 로고
    • Id. at 1917
    • Id. at 1917.
  • 40
    • 34948894666 scopus 로고    scopus 로고
    • Rhetorical assertions of the trilogy's effect abound. For instance, Since [the trilogy], federal courts have employed summary judgment ... in cases that before the trilogy would have proceeded to trial, or at least through discovery. Miller, supra note 2, at 984. This argument begs the question: it cannot be known whether any given case that ended by summary judgment would have proceeded to trial but for the trilogy. Professor Arthur R. Miller continued, perhaps the trilogy's greatest significance is that the lower federal courts have read it as a directive to be more receptive to summary judgment in ways that are more striking than anything actually articulated in the three cases.
    • Rhetorical assertions of the trilogy's effect abound. For instance, "Since [the trilogy], federal courts have employed summary judgment ... in cases that before the trilogy would have proceeded to trial, or at least through discovery." Miller, supra note 2, at 984. This argument begs the question: it cannot be known whether any given case that ended by summary judgment would have proceeded to trial but for the trilogy. Professor Arthur R. Miller continued, "perhaps the trilogy's greatest significance is that the lower federal courts have read it as a directive to be more receptive to summary judgment in ways that are more striking than anything actually articulated in the three cases."
  • 42
    • 34948856112 scopus 로고    scopus 로고
    • see id. at 1070-71 & nn.469-70, and did not offer even one example of a district-court judge interpreting the trilogy identically or relying on its mandate to grant summary judgment where that judge might not otherwise.
    • see id. at 1070-71 & nn.469-70, and did not offer even one example of a district-court judge interpreting the trilogy identically or relying on its mandate to grant summary judgment where that judge might not otherwise.
  • 43
    • 34948842135 scopus 로고    scopus 로고
    • Cf. Shadur, supra note 6, at 5. Judge Milton I. Shadur alleged that the far more favorable climate that was created by the Supreme Court's 1986 trilogy, together with the active encouragement of most courts of appeals, brought about a systematic sea change.
    • Cf. Shadur, supra note 6, at 5. Judge Milton I. Shadur alleged that the "far more favorable climate that was created by the Supreme Court's 1986 trilogy," together with the "active encouragement of most courts of appeals," brought about a "systematic sea change."
  • 45
    • 34948837521 scopus 로고    scopus 로고
    • Id
    • Id.
  • 46
    • 34948909353 scopus 로고    scopus 로고
    • DIXON & GILL, doctrine into actual gatekeeping by district-court judges deciding whether to admit expert evidence
    • Cf. DIXON & GILL, supra note 23, at 4 (describing the loose translation of the Daubert doctrine into actual gatekeeping by district-court judges deciding whether to admit expert evidence).
    • supra note 23, at 4 (describing the loose translation of the Daubert
    • Cf1
  • 47
    • 0345846296 scopus 로고
    • Cases on Summary Judgment: Has There Been a Material Change in Standards?, 63
    • Jack H. Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Standards?, 63 NOTRE DAME L. REV. 770, 771 (1988).
    • (1988) NOTRE DAME L. REV , vol.770 , pp. 771
    • Friedenthal, J.H.1
  • 48
    • 34948825069 scopus 로고    scopus 로고
    • See supra note 27
    • See supra note 27.
  • 49
    • 34948813237 scopus 로고    scopus 로고
    • Wald, supra note 3, at 1913
    • Wald, supra note 3, at 1913.
  • 50
    • 34948849990 scopus 로고    scopus 로고
    • Id
    • Id.
  • 51
    • 34948826638 scopus 로고    scopus 로고
    • This methodology is at least superior to a snapshot comparison of a district court's trial and summary-judgment rates at a single time post-trilogy. See, e.g, id. at 1915 finding, in a sample of civil cases terminated in the District Court for the District of Columbia during 1996, that 22% were terminated by summary judgment, versus only 3% terminated by trial, While a snapshot summary-judgment rate seven times the trial rate may inform the debate of whether courts are overusing summary judgment relative to trial, it yields no information about how these rates have correlated over time, much less whether the trilogy had any role in effecting the imbalance
    • This methodology is at least superior to a snapshot comparison of a district court's trial and summary-judgment rates at a single time post-trilogy. See, e.g., id. at 1915 (finding, in a sample of civil cases terminated in the District Court for the District of Columbia during 1996, that 22% were terminated by summary judgment, versus only 3% terminated by trial). While a snapshot summary-judgment rate seven times the trial rate may inform the debate of whether courts are overusing summary judgment relative to trial, it yields no information about how these rates have correlated over time, much less whether the trilogy had any role in effecting the imbalance.
  • 52
    • 34948882964 scopus 로고    scopus 로고
    • Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405, 1407-08 (2002).
    • Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405, 1407-08 (2002).
  • 53
    • 34948849442 scopus 로고    scopus 로고
    • Id. at 1408
    • Id. at 1408.
  • 54
    • 34948828257 scopus 로고    scopus 로고
    • Id. at 1409
    • Id. at 1409.
  • 55
    • 34948894148 scopus 로고    scopus 로고
    • But see Gillian K. Hadfield, Where Have All the Trials Gone?
    • But see Gillian K. Hadfield, Where Have All the Trials Gone?
  • 56
    • 34948861876 scopus 로고    scopus 로고
    • Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705, 715-16 & fig.2 (2004). Professor Gillian Hadfield noted that at least part of this litigation surge was due to the growing use of district courts for appellate review of administrative decisions; such appeals accounted for a significant fraction of trials by the late 1990s. Id. If final dispositions of such appeals are included, the 2000 trial rate becomes approximately 5%, significantly higher than the 2 to 3% suggested by other commentators.
    • Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705, 715-16 & fig.2 (2004). Professor Gillian Hadfield noted that at least part of this litigation surge was due to the growing use of district courts for appellate review of administrative decisions; such appeals accounted for a significant fraction of "trials" by the late 1990s. Id. If final dispositions of such appeals are included, the 2000 trial rate becomes approximately 5%, significantly higher than the 2 to 3% suggested by other commentators.
  • 57
    • 34948843155 scopus 로고    scopus 로고
    • See id. at 716.
    • See id. at 716.
  • 58
    • 34948846265 scopus 로고    scopus 로고
    • Mollica, supra note 5, at 141
    • Mollica, supra note 5, at 141.
  • 59
    • 34948834354 scopus 로고    scopus 로고
    • Id. Mollica blamed the emergence of summary judgment as the new fulcrum of federal civil dispute resolution for directly reducing the trial rate, but he offered no specific evidence of this causal relationship. See id. Indeed, Hadfield, also relying on AO data, confirmed a fall in the trial rate from 9% in 1979 to 2% in 2001, but noted that the drop was largely due to a decline in bench trials, not jury trials.
    • Id. Mollica blamed the "emergence of summary judgment as the new fulcrum of federal civil dispute resolution" for directly reducing the trial rate, but he offered no specific evidence of this causal relationship. See id. Indeed, Hadfield, also relying on AO data, confirmed a fall in the trial rate from 9% in 1979 to 2% in 2001, but noted that the drop was largely due to a decline in bench trials, not jury trials.
  • 60
    • 34948885858 scopus 로고    scopus 로고
    • See Hadfield, supra note 37, at 715-16 & fig.1. Since 1979, the proportion of cases terminated by jury trial has been relatively stable: it is the bench trial that is 'vanishing' from the data over the past few decades.
    • See Hadfield, supra note 37, at 715-16 & fig.1. Since 1979, the proportion of cases terminated by jury trial has been relatively stable: "it is the bench trial that is 'vanishing' from the data over the past few decades."
  • 61
    • 34948877769 scopus 로고    scopus 로고
    • Id. at 714
    • Id. at 714.
  • 62
    • 34948841671 scopus 로고    scopus 로고
    • Stephen B. 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, 576-77 (2004) (noting further that the rate becomes 2.1% when cases terminated with court action becomes the denominator, instead of all terminated cases);
    • Stephen B. 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, 576-77 (2004) (noting further that the rate becomes 2.1% when "cases terminated with court action" becomes the denominator, instead of all terminated cases);
  • 63
    • 34948836458 scopus 로고    scopus 로고
    • Galanter, supra note 7, at 459
    • Galanter, supra note 7, at 459.
  • 64
    • 34948846264 scopus 로고    scopus 로고
    • See, e.g., Hadfield, supra note 37, at 706-07. There is also interplay between these procedural devices. For instance, post-trilogy, a filed summary-judgment motion might create greater incentives to settle than it would have pre-trilogy, because litigants could perceive the motion as more likely to be granted. An increase in settlement activity would in turn decrease the trial rate.
    • See, e.g., Hadfield, supra note 37, at 706-07. There is also interplay between these procedural devices. For instance, post-trilogy, a filed summary-judgment motion might create greater incentives to settle than it would have pre-trilogy, because litigants could perceive the motion as more likely to be granted. An increase in settlement activity would in turn decrease the trial rate.
  • 65
    • 84888467546 scopus 로고    scopus 로고
    • notes 66-69 and accompanying text
    • See infra notes 66-69 and accompanying text.
    • See infra
  • 66
    • 34948872235 scopus 로고    scopus 로고
    • See, e.g., Mollica, supra note 5, at 163 ([L]ower courts were already moving in the direction of summariness even before [the trilogy decisions] were announced. . . . The achievement of Matsushita- Celotex-Anderson, then, may have been less to change the law of summary judgment than to consolidate a movement already underway.).
    • See, e.g., Mollica, supra note 5, at 163 ("[L]ower courts were already moving in the direction of summariness even before [the trilogy decisions] were announced. . . . The achievement of Matsushita- Celotex-Anderson, then, may have been less to change the law of summary judgment than to consolidate a movement already underway.").
  • 67
    • 34948848310 scopus 로고    scopus 로고
    • But see JOE S. CECIL & C.R. DOUGLAS, SUMMARY JUDGMENT PRACTICE IN THREE DISTRICT COURTS 2, 10 (1987) (comparing random samples of cases terminated in 1975 and 1986 in three federal district courts-Eastern Pennsylvania, Central California, and Maryland-and finding that litigants filed a summary-judgment motion in 16% of cases each year, but that the percentage of cases terminated by summary judgment had actually fallen by about 50% in all three districts in 1986). The study suggests that, at least in those courts, the summary-judgment tide was actually ebbing at the time of the trilogy, relative to a decade before.
    • But see JOE S. CECIL & C.R. DOUGLAS, SUMMARY JUDGMENT PRACTICE IN THREE DISTRICT COURTS 2, 10 (1987) (comparing random samples of cases terminated in 1975 and 1986 in three federal district courts-Eastern Pennsylvania, Central California, and Maryland-and finding that litigants filed a summary-judgment motion in 16% of cases each year, but that the percentage of cases terminated by summary judgment had actually fallen by about 50% in all three districts in 1986). The study suggests that, at least in those courts, the summary-judgment tide was actually ebbing at the time of the trilogy, relative to a decade before.
  • 68
    • 34948871201 scopus 로고    scopus 로고
    • Wald, supra note 3, at 1907
    • Wald, supra note 3, at 1907.
  • 69
    • 34948867983 scopus 로고    scopus 로고
    • See DIXON & GILL, supra note 23, at 23
    • See DIXON & GILL, supra note 23, at 23.
  • 70
    • 34948907556 scopus 로고    scopus 로고
    • Cf. id
    • Cf. id.
  • 71
    • 34948861877 scopus 로고    scopus 로고
    • See Higginbotham, supra note 35, at 1416-17
    • See Higginbotham, supra note 35, at 1416-17.
  • 72
    • 34948894665 scopus 로고    scopus 로고
    • Id. at 1420
    • Id. at 1420.
  • 73
    • 34948888421 scopus 로고    scopus 로고
    • Indeed, we should be skeptical of any attempt or claim to identify 'the cause' or even 'the primary cause' of the vanishing trials phenomenon. Burbank, supra note 40, at 578
    • Indeed, "we should be skeptical of any attempt or claim to identify 'the cause' or even 'the primary cause' of the vanishing trials phenomenon." Burbank, supra note 40, at 578.
  • 74
    • 84963456897 scopus 로고    scopus 로고
    • notes 43-46 and accompanying text
    • See supra notes 43-46 and accompanying text.
    • See supra
  • 75
    • 34948858654 scopus 로고    scopus 로고
    • One way to track explicit references to the trilogy is to use one of the online or print citators, including Lexis's Shepard's and Westlaw's KeyCite services. Such a study, however, would necessarily be restricted to the opinions that those publishing companies and online services have databased, which is a small subset of actual summary-judgment activity.
    • One way to track explicit references to the trilogy is to use one of the online or print citators, including Lexis's Shepard's and Westlaw's KeyCite services. Such a study, however, would necessarily be restricted to the opinions that those publishing companies and online services have databased, which is a small subset of actual summary-judgment activity.
  • 76
    • 34948847797 scopus 로고    scopus 로고
    • Burbank, supra note 40, at 579-80 (observing that such staff are overworked and responsible to multiple masters-including judges, the chief clerk of court, and AO officials-in a decentralized endeavor).
    • Burbank, supra note 40, at 579-80 (observing that such staff are overworked and responsible to multiple masters-including judges, the chief clerk of court, and AO officials-in a decentralized endeavor).
  • 77
    • 34948871715 scopus 로고    scopus 로고
    • Hadfield, supra note 37
    • Hadfield, supra note 37.
  • 78
    • 34948905007 scopus 로고    scopus 로고
    • The most notable of these is Galanter's study, see Galanter, supra note 7, conducted under the auspices of the American Bar Association Section of Litigation's Vanishing Trial project, which inspired a symposium in the first of the Journal of Empirical Legal Studies.
    • The most notable of these is Galanter's study, see Galanter, supra note 7, conducted under the auspices of the American Bar Association Section of Litigation's "Vanishing Trial" project, which inspired a symposium in the first volume of the Journal of Empirical Legal Studies.
  • 79
    • 34948852941 scopus 로고    scopus 로고
    • See Patricia Lee Refo, The Vanishing Trial, 1 J. EMPIRICAL LEGAL STUD. V, V (2004) (describing the Vanishing Trial project, its origins, and the nerve it touched). Other studies relying on AO data include Higginbotham, supra note 35;
    • See Patricia Lee Refo, The Vanishing Trial, 1 J. EMPIRICAL LEGAL STUD. V, V (2004) (describing the "Vanishing Trial" project, its origins, and the "nerve" it touched). Other studies relying on AO data include Higginbotham, supra note 35;
  • 80
    • 34948902995 scopus 로고    scopus 로고
    • Mollica, supra note 5;
    • Mollica, supra note 5;
  • 81
    • 34948901591 scopus 로고    scopus 로고
    • Wald, supra note 3. Burbank obtained the AO data from which Judge Wald reported a 22% summary judgment rate in her court, the District Court for the District of Columbia. By working with the court's Clerk's Office to audit the data, Burbank discovered that the AO data had erroneously coded all terminations by judgment on motion before trial - a category far too broad-as summary - judgment grants. Burbank's audit therefore exposed the 22% summary judgment rate as unreliably high.
    • Wald, supra note 3. Burbank obtained the AO data from which Judge Wald reported a 22% summary judgment rate in her court, the District Court for the District of Columbia. By working with the court's Clerk's Office to audit the data, Burbank discovered that the AO data had erroneously coded all terminations by judgment on motion before trial - a category far too broad-as summary - judgment grants. Burbank's audit therefore exposed the 22% summary judgment rate as unreliably high.
  • 82
    • 34948813771 scopus 로고    scopus 로고
    • Burbank, supra note 8, at 610-11;
    • Burbank, supra note 8, at 610-11;
  • 83
    • 84888467546 scopus 로고    scopus 로고
    • note 61 and accompanying text
    • see infra note 61 and accompanying text.
    • see infra
  • 84
    • 34948840156 scopus 로고    scopus 로고
    • Hadfield, supra note 37, at 705;
    • Hadfield, supra note 37, at 705;
  • 85
    • 34948889484 scopus 로고    scopus 로고
    • see Admin. Office of the U.S. Courts, PACER Service Center, http://pacer.psc.uscourts.gov (last visited Mar. 2, 2007).
    • see Admin. Office of the U.S. Courts, PACER Service Center, http://pacer.psc.uscourts.gov (last visited Mar. 2, 2007).
  • 87
    • 34948877082 scopus 로고    scopus 로고
    • Id
    • Id.
  • 89
    • 0346331504 scopus 로고    scopus 로고
    • an audit for the judgment variable, however, was more reliable. 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, 1476 (2003).
    • an audit for the "judgment" variable, however, was more reliable. 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, 1476 (2003).
  • 90
    • 34948860796 scopus 로고    scopus 로고
    • Hadfield, supra note 37, at 705
    • Hadfield, supra note 37, at 705.
  • 91
    • 34948841672 scopus 로고    scopus 로고
    • Id. at 726 & tbl.5.
    • Id. at 726 & tbl.5.
  • 92
    • 34948908335 scopus 로고    scopus 로고
    • Id. at 727 & tbl.6.
    • Id. at 727 & tbl.6.
  • 93
    • 34948869526 scopus 로고    scopus 로고
    • See Burbank, supra note 40, at 580 (Terminations by motion for summary judgment cannot be determined because they are part of a larger category (judgment on motion before trial) that also includes judgments on the pleadings under Rule 12(c) and all orders dismissing prisoner petitions, and that may also include some judgments of dismissal under Rule 12(b).); Burbank, supra note 8, at 606.
    • See Burbank, supra note 40, at 580 ("Terminations by motion for summary judgment cannot be determined because they are part of a larger category (judgment on motion before trial) that also includes judgments on the pleadings under Rule 12(c) and all orders dismissing prisoner petitions, and that may also include some judgments of dismissal under Rule 12(b)."); Burbank, supra note 8, at 606.
  • 94
    • 34948853472 scopus 로고    scopus 로고
    • Hadfield, supra note 37, at 728-29. Hadfield noted that there is reason to suspect that dockets have become more complex and less linear over the same period with the rise of ADR and complex multi-party litigation.
    • Hadfield, supra note 37, at 728-29. Hadfield noted that "there is reason to suspect that dockets have become more complex and less linear over the same period with the rise of ADR and complex multi-party litigation."
  • 96
    • 34948816343 scopus 로고    scopus 로고
    • Id
    • Id.
  • 97
    • 34948843758 scopus 로고    scopus 로고
    • Id. at 710. The AO added three categories of dismissals (lack of jurisdiction, voluntary dismissal, and settlement) to the previous two (lack of prosecution and other).
    • Id. at 710. The AO added three categories of dismissals ("lack of jurisdiction," "voluntary dismissal," and "settlement") to the previous two ("lack of prosecution" and "other").
  • 100
    • 34547996173 scopus 로고    scopus 로고
    • the AO distinguished between transfers to another district and transfers as part of a multidistrict litigation, and between remands to state court and remands to United States agencies
    • Id. Additionally, the AO distinguished between transfers to another district and transfers as part of a multidistrict litigation, and between remands to state court and remands to United States agencies.
    • Additionally
  • 101
    • 34948872810 scopus 로고    scopus 로고
    • Id
    • Id.
  • 102
    • 34948885859 scopus 로고    scopus 로고
    • Id. at 710-11. As a marked example, consider that raw AO data from 1987 show that 48% of all dismissals were coded as lack of jurisdiction, versus only 3% coded as other dismissals.
    • Id. at 710-11. As a marked example, consider that raw AO data from 1987 show that 48% of all dismissals were coded as "lack of jurisdiction," versus only 3% coded as "other" dismissals.


* 이 정보는 Elsevier사의 SCOPUS DB에서 KISTI가 분석하여 추출한 것입니다.