Litigation realities redux

Notre Dame Law Review

Volumn 84, Issue 5, 2009, Pages 1919-1974

  Clermont, Kevin M ^a  

^a Department of Obstetrics Gynecology   (United States)

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EID: 70349821058     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (441)

1. Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119, 120 (2002).
2. See Duc DE CASTRIES, L'AGONIE DE LA Royaure 193 (1959). But cf. PAUL GiRAULT DE COURSAC & PIERRETTE GiRAULT DE COURSAG, ENTRETIENS SUR LOUIS 16, at 144-45 (1990) (explaining that, in actuality, this much-maligned monarch was noting only that there had been no hunt that day).
3. See THE YALE BOOK OF QUOTATIONS 620 (Fred R. Shapiro ed., 2006) (translating 'mieulx vault aucun bien que neant," from the early fifteenth century). Frederick Mosteller, as quoted in Time magazine, observed: "It is easy to lie with statistics, but easier to lie without them." Melissa August et al., Milestones, TIME, Aug. 7, 2006, at 23, 23. Nevertheless, a major lesson from the present Article is that before drawing conclusions, the researcher should seek out as many pieces of the puzzle as possible- using data from as many years as possible, and from as many setdngs as possible (different case categories, civil and noncivil proceedings, state and federal forums, U.S. and foreign settings).
4. See, e.g., Dan Childs et al. Studies Gone Wild: Death by Shower Curtain?, ABC NEWS, June 12, 2008, http://abcnews.go.com/Health/story?id= 5057141&page=l ("The group tested a total of five shower curtains, of which only one shower curtain-not one brand; one curtain-was subjected to complete testing for chemicals in its composition, as well as those it released into the air-a phenomenon known as 'off-gassing.'").
5. See also Kevin M. Clermont & Theodore Eisenberg, Foreigners' Fate in America's Courts: Empirical Legal Research, 1 AGADEMIA SINICA LJ. 237, 239-50 (2007), available at http://empirical.law.comell.edu/articles/sinica.pdf (discussing the impact of empirical research on the law).
6. See, e.g., Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum- Shopping, 80 CORNELL L. REV. 1507, 1508 (1995) (noting that forum selection "has a major impact on outcome")
7. see also Mary Garvey Algero, In Defense of Forum Shopping: A Realistic look at Selecting a Venue, 78 NEB. L. REV. 79 (1999) (stressing the benefits of forum shopping)
8. Debra Lyn Bassett, The Forum Game, 84 N.C. L. REV. 333 (2006) (defending forum shopping as a legitimate tactic when the law authorizes bringing a lawsuit in more than one forum)
9. Friedrich K Juenger, Forum Shopping Domestic and International, 63 TuL. L. REV. 553, 570 (1989) ("[N]ot all forum shopping merits condemnation.");
10. Richard Maloy, Forum Shopping? What's Wrongunth That?, 24 QUINNIPIAC L. REV. 25, 33-50 (2005) (distinguishing permissible from impermissible forum shopping)
11. James E. Pfander, Forum Shopping and the Infrastructure of Federalism, 17 TEMP. POL. & Crv. RTS. L. REV. 355, 355 (2008) (explaining that forum shopping "ensure [s] that firms operating through the nation must comply with relatively more prcKon- sumer policies at the state lever)
12. J. Skelly Wright, The Federal Courts and the Nature and Quality of State Law, 13 WAYNE L. REV. 317, 333 (1967) (criticizing forum shopping as "a national legal pastime").
13. See infra Parts III-FV.
14. See, e.g., 28 U.S.C.§1391 (2006) (governing venue within the federal system).
15. See, e.g., id.§1441(a) (authorizing removal generally).
16. See, e.g., id.§1404(a) (authorizing transfer between districts within the federal system).
17. Clermont & Eisenberg, supra note 5, at 1509 n.3, reported that the numbers of transfer motions and trials were about the same through fiscal year 1991, but since then the number of trials has dropped precipitously. See infra note 184.
18. ROBERT G. CASAD, JURISDICTION AND FORUM SEIJ;CTION (2d ed. 2007 & Update 2008).
19. See generally KEVIN M. CLERMONT, PRINCIPIXS OF CIVIL PROCEDURE 200-05 (2d ed. 2009) (giving background on law of removal).
20. The most important excepdon to the removability of cases appears in 28 U.S.C.§1441(b) (2006), whereby defendants cannot remove a diversity case if any served defendant is a citizen of the forum state.
21. Id.§1446(a)-(b).
22. Id.§1446(d).
23. Id.
24. Id.
25. Id.§1447(d).
26. See Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNEIX L. REV. 581, 599 (1998).
27. See RICHARD H. FIEUJ ET AL. MATERIALS FOR A BASIC COURSE IN CIVIL PROCEDURE 221-22 (9th ed. 2007).
28. See DANIEL JOHN MEADOR, AMERICAN COURTS 31-33 (2d ed. 2000)
29. Brian J. Ostrom et al., Examining Trial Trends in State Courts: 1976-2002, 1 J. EMPIRICAL LEGAL STUD. 755, 757 (2004).
30. These data were gathered by the Administrauve Office of the United States Courts (AO), assembled by the Federal Judicial Center, and disseminated by the Inter-university Consortium for Political and Social Research.
31. See Theodore Eisenberg & Kevin M. Clermont, Courts in Cyberspace, 46 J. LEGAL EDUC. 94 (1996). These data convey details of all cases terminated in the federal courts since fiscal year 1970. When any civil case terminates in a federal district court or court of appeals, the court clerk transmits to the AO a form containing information about the case. The forms include, inter alia, data regarding the names of the parties, the subject matter category (the form distinguishes among some ninety categories, including specific branches of contract, tort, and other areas of law) and the jurisdictional basis of the case, the case's origin in the district as original, removed, or transferred, the amount demanded, the dates of filing and termination in the district court or the court of appeals, the procedural stage of the case at termination, the procedural method of disposition, and, if the court entered judgment or reached decision, the prevailing party and the relief granted.
32. Thus, the computerized database, compiled from these forms, contains all of the millions of federal civil cases over many years from the whole country. Clermont & Eisenberg, supra note 1, at 127-29, more fully describes this database and its strengths and weaknesses.
33. For Figure 1, I eliminated asbestos cases from the Northern District of Ohio in calendar year 1990 to avoid the distortion of their unusually high number. I did the same for multidistrict product liability terminations from the Northern District of Alabama in 1998 and 1999; from the District of Minnesota and the Northern District of Ohio in 2004; and from the District of Minnesota, the Northern District of Ohio, and the Eastern District of Pennsylvania in 2006 (while also eliminating over sixteen thousand reopened asbestos and diet-drug cases that were dismissed in 2006 by that last district).
34. See 28 U.S.C.§1332(a) (2006). In rough terms, this statute extends jurisdiction to cases for more than $75,000 between citizens of different U.S. states or between foreigners and state citizens, but it requires the diversity to be "complete," that is, no two opposing parties can be citizens of the same state.
35. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806). The Constitution would permit "minimal" diversity, that is, the only requirement, absent a statutory restriction, is that a state citizen and someone of different citizenship must be on opposite sides.
36. See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530-31 (1967) (upholding the interpleader statute on such basis).
37. As to the remand rate, it is reliable only from fiscal year 1979, when the AO's coding practices made the necessary changes.
38. Clermont & Eisenberg, supra note 1, at 123 fig.l.
39. See id. at 122 & n.l6.
40. Theodore Eisenberg & Trevor W. Morrison, Overlooked in the Tort Reform Debate: The Growth of Erroneous Removal, 2 J. EMPIRICAL LEGAL STUD. 551, 565 fig.2, 566 fig.4 (2005). Their article triggered an interesting debate on TortsProf Blog, Abusive Removals (updated), http://lawprofessors.typepad.com/ tortsprof/2006/10/abusive-removal.html (Oct. 10, 2006). Ted Frank, Director of the American Enterprise Institute Legal Center, there says: "I've been very disappointed in empirical legal work. [It] usually consist[s] of a study that performs technically accurate counting of statistics, and then wild jumps to conclusions that coincidentally correspond to the authors' biases without acknowledgement of the limits of the data."
41. Id. (Oct. 10, 2006, 17:10 EST). But the only point such criucs made is that "erroneous removal" means no more than removals that the system has determined were in error and so require remand, an obvious point on which Eisenberg and Morrison had been perfectly explicit.
42. Eisenberg & Morrison, supra note 28, at 564.
43. Id.
44. See id. at 561, 576.
45. But cf Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (reading narrowly the authority in 28 U.S.C.§1447(c) to award "just costs" for improper removal relatively).
46. The upswing in the removal rate could be attributable in part to the statutory amendments in 1988 that changed removal from a relatively burdensome peddon- and-bond process to a simple nodce-of-removal scheme that facilitates defendants' forum shopping. See Christopher Terranova, Erroruous Removal as a Tool for Silent Tort Reform: An Empirical Analysis of Fee Awards and Fraudulent Joinder, 44 WILLAMETTE L. REV. 799, 805-09 (2008) (observing the recent dive in remand rate, but not knowing how to explain it even after extensive analysis; also making the point that the observed pattern does not result from using termination data, even though the quickly terminated remand cases do not perfectly align year-by-year with the more slowly terminated nonremand cases). However, the transfer rate for federal cases has shown a similar increase over recent decades, thus implying a more generic cause for increased forum shopping.
47. See Clermont & Eisenberg, supra note 5, at 1526-29.
48. The new trend seems pervasive. The downmward trend prevails, most often in a statistically significant way, in every circuit since 2001, except the First Circuit where it did not appear until 2003. It prevails, most often in a statistically significant way, in each case grouping (contract, real property, personal injury torts, product liability, personal property torts, and statutory actions).
49. For present purposes, I narrow the AO definition of judgments to include only those cases where the data indicate a win by plaintiff or defendant, not by both or by an unknown party. Note, however, that these judgments comprise much more than trial outcomes: for AO purposes, judgments might be the result of adjudication, consent, or default, although they normally do not include voluntary dismissals or dismissals for lack of prosecution.
50. See Clermont & Eisenberg, supra note 19, 592-607.
51. See Clermont & Eisenberg, supra note 5, at 1511-30
52. see also Kevin M. Clermont & Theodore Eisenberg, Simplifying the Choice of Forum: A Reply, 75 WASH. U. L.Q. 1551 (1997) (using an empirical study to examine the effects of transfer of venue on case outcomes).
53. Clermont & Eisenberg, supra note 19, at 593.
54. Id. at 606.
55. Id. at 606-07.
56. Clermont & Eisenberg, supra note 5, at 1512.
57. Id. at 1514.
58. Cf. Clermont & Eisenberg, supra note 19, at 603 n.67 (showing the transfer effect, which reduced 50% odds to 38% for diversity cases).
59. Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of 28 U.S.C). See generally GEORGENE M. VAIRO, CLASS ACTION FAIRNESS ACT OF 2005 (2005) (giving background on CAFA). For a different but even more astounding example of policymakers' interest in the effect of forum on outcome.
60. see Elizabeth G. Thorn- burg, Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia, 110 W. VA. L. REV. 1097,1134-37 (2008) (calling for more empirical research to rebut tort reform propaganda).
61. See 7A CHARLES ALAN WRIGHT ET AL. FEDERAL PRACTICE AND PROCEDURE§1756.2 (3d ed. 2005 & Supp. 2008) (describing Congress' goal of preventing litigation abuse through CAFA).
62. Joel Roberts, Lawsuit Limits Become Law, CBS NEWS, Feb. 18, 2005, http://www.cbsnews.com/stories/2005/02/ll/politics/main673159.shtml (quoting President George W. Bush)
63. see also Edward A. Purcell, Jr., The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform, 156 U. PA. L. REV. 1823, 1861-63, 1867 (2008) (stressing partisan support for CAFA).
64. 28 U.S.C.§1332(d) (2006).
65. see also supra note 24 (describing the difference between complete and minimal diversity).
66. 28 U.S.C.§1453 (2006).
67. see also supra notes 13, 18 and accompanying text (discussing the non-CAFA requirement of having all defendants agree on removal and the nonappealability of remand orders).
68. Kevin M. Clermont & Theodore Eisenberg, CAFA Judicata: A Tale of Waste and Politics, 156 U. PA. L. REV. 1553 (2008). On the dangers of limiung study to such "published" opinions
69. see id. at 1559-60, 1562-63.
70. Id. at 1560.
71. Id. at 1565.
72. Id. at 1579-84. As to this surprising result.
73. see id. at 1584-91.
74. See CLERMONT, supra note 12, at 37-54.
75. See Edward Cavanagh, Pleading Rules in Antitrust Cases: A Return to Fact Pleading?, 21 REV. Lrric. 1, 1-2 (2002).
76. See Mark D. Robins, The Resurgence and Limits of the Demurrer, 27 SUFFOLK U. L. REV. 637, 642 n.24 (1993).
77. See Douglas A. Blaze, Presumed Frivolous: Application of Stringent Pleading Requirements in Civil Rights Litigation, 31 WM. & MARY L. REV. 935, 942 (1990).
78. See, e.g, Conley v. Gibson, 355 U.S. 41, 48 (1957) ("[W]e have no doubt that petitioners' complaint adequately set forth a claim and gave the respondents fair notice of its basis."), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
79. Disagreement prevails even within families, as my vsdfe, Emily Sherwin, can attest. Com/)are Emily Sherwin, The Story of Con\ey: Precedent by Accident, mCrviL PROCEDURE STORIES 295, 317-20 (Kevin M. Clermont ed., 2d ed. 2008) (criticizing lenient pleading rules)
80. Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson, 52 How. L.J. 73 (2008) (same), tvith CLERMONT, supra note 12, at 37-41 (favoring a move toward even purer notice pleading).
81. See Christopher M. Fairman, Heightened Pleading 81 TEX. L. REV. 551, 574-82 (2002);
82. Christopher M. Fairman, The Myth of Notice Pleading 45 ARIZ. L. REV. 987, 1002-09 (2003);
83. Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1759-61,1774-75 (1998)
84. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 444-51 (1986).
85. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-15 (2002) (involving a Tide VII employment discriminadon claim)
86. Leatherman v. Tarrant County Narcoucs Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (involving a civil rights claim against a municipality).
87. See Michael Chiorazzi et al., Empirical Studies in Civil Procedure: A Selected Annotated Bibliography, LAW & CONTEMP. PROBS., Summer 1988, at 87, 120 ("[T]here are no studies on pleading per se, perhaps because of the advent of modem notice pleading.")
88. Civil Rules Advisory Comm., Judicial Conf. of the U.S., Minutes Oct. 27-28, 2005, at 29-35, available at http://www.uscourts.gov/rules/Minutes/CVl1- 2005-min.pdf;
89. Civil Rules Advisory Comm., Judicial Conf. of the U.S., Minutes May 22-23, 2006, at 37-38, available at http://www.uscourts.gov/rules/Minutes/CV05- 2006-min.pdf.
90. 550 U.S. 544 (2007).
91. see also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (elaborating on the meaning of Bell Atlantic).
92. Bell all Corp., 550 U.S. at 549-51.
93. Id. at 553.
94. Id. at 565.
95. Id. at 565 & n.lO.
96. Id. at 570.
97. Id. at 566-68.
98. Id. at 565 n. l0.
99. Id. at 570.
100. Id. at 573 (Stevens, J., dissenting).
101. Id.
102. By discombobuladng a basic area of law, the case managed to generate an absolutely extraordinary 5000 case citations in its first eleven months, see Amy J. Wildermuth, What Twombly and Mead Have in Common, 102 Nw. U. L. REV. COLLOQUY 276, 276 (2008), http://www.law.northwestem.edu/lawreview/colloquy/ 2008/12/LRColl2008nl2Wildermuth.pdf, and 7000 case citations after thirteen months.
103. See Gregory P. Joseph, Federal Litigation-Where Did It Go Off Track?, LITIGATION, Summer 2008, at 5, 62.
104. For a Judge's consequent lament, see Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Adandc Corp. v. Twombly, 41 SUFFOLK U. L. REV. 851 (2008).
105. On the implications for state courts, see Z.W. Julius Chen, Note, Follounng the Leader: Twombly, Pleading Standards, and Procedural Uniformity, 108 COLUM. L. REV. 1431 (2008).
106. Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 lowA L. REV. 873, 935-36 (2009) (arguing that the Court's thin plausibility standard could be justifiable, if adopted by the proper statute or rule process)
107. Keith Bradley, Pleading Standards Should Not Change After Bell Adantic v. Twombly, 102 Nw. U. L. REV. COLLOQUY 117, 122 (2007), http:t//www.law. northwestem.edu/lawreview/colloquy/2007/31/lrcoll2007n31Bradley.pdf ("'Plausibility' is an element of a certain kind of antitmst conspiracy claim, not a standard for pleadings in general.")
108. Stephen B. Burbank, Pleading and the Dilemmas of 'General Rules, " 2009 Wis. L. REV. 535 (arguing that substantive-specific federal common law could modify the transsubstantive Federal Rules on pleading)
109. Charles B. Campbell, A "Plausible" Showing After Bell Atlantic Corp. v. Twombly, 9 NEV. L.J. 1, 2 (2008) (translating "plausible" to mean that a complaint must "'contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory'" (quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. 1981)))
110. Edward D. Cavanagh, Twombly, The Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877, 879 (2008) (concluding that "(1) the Court's assertion that judges cannot effectively control litigation costs because the parties-not the courts-control claims and defenses as well as the nature and amount of discovery in any given case is contrary to fact
111. certain classes of cases may well warrant particularized pleading but that decision should be made by the mlemakers through amendments to the Federal Rules of Civil Procedure and not by judges on an ad hoc basis")
112. Scott Dod- son. Pleading Standards After Bell Adantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135, 140, 142 (2007), http://www.virginialawreview.org/ inbrief/2007/07/09/dod-son.pdf (offering that "the best reading of Bell Atlantic is that Rule 8 now requires notice-plus pleading for all cases," but "it will spawn years of increased litigation")
113. Richard A. Epstein, Bell Adantic v. Twombly; How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61, 99 (2007) (approving the result of Bell Atlantic, and ultimately supporting "dismissal at the close of pleadings in any case where the defendant has negated all inferences of culpability by using the same kinds of public evidence that the plaintiff has used to establish a factual underpinning to the underlying complaint")
114. Lonny S. Hoffman, Bum Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B.U. L. REV. 1217, 1255-70 (2008) (criticizing Bell Atlantic from a broader perspective, but ultimately approving a limited screening of conclusory pleadings unless the pleader can show a special need for discovery)
115. Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claim, 10 U. PA. J. Bus. & EMP. L. 627, 640-45 (2008) (approving Bell Atlantic's notice-plus pleading as a transsubstantive rule implicit in Federal Rule 12(b)(6)'s requirement that the pleader show entitlement to relief)
116. Keith N. Hylton, When Should a Case Be Dismissed? The Economics of Pleading and Summary fudgment Standards, 16 SUP. CT. ECON. REV. 39, 42-54 (2008) (using economic analysis to conclude that pleading standards should vary with the case's evidentiary demands and the social costs of litigation)
117. Allan Ides, Bell Adantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 F.R.D. 604, 631-36, 639 (2007) (approving, with reservations. Bell Atlantic's application of pleading's substantive-sufficiency test to this antitrust case)
118. Randal C. Picker, Twombly, Leegin and the Reshaping of Antitrust, 2007 SUP. CT. REV. 161, 176-77 (suggesting that the Supreme Court should have proceeded instead by limiting discovery)
119. J. Douglas Richards, Three Limitations of Twombly.- Antitrust Conspiracy Inferences in a Context of Historical Monopoly, 82 ST. JOHN'S L. REV. 849 (2008) (taking a very narrow view of Bell Atlantic)
120. Douglas G. Smith, The Twombly Revolution?, 36 PEPP. L. REV. (forthcoming 2009) (manuscript at 17-24), available at http://ssm.com/abstract=1147862 (downplaying and defending Bell Atlantic)
121. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 460-89 (2008) (strongly criticizing the new regime of plausibility pleading)
122. Paul J. Stancil, Balancing the Pleading Equation (111. Law & Econ. Research Paper Series, Research Paper No. LE08-018, 2008), available at http://ssm.com/abstract=l266323 (calling for a return to fact pleading, but for only certain classes of cases)
123. Richard M. Steuer, Plausible Pleading: Bell Adandc Corp. v. Twombly, 82 ST. JOHN'S L. REV. 861, 875 (2008) (saying that Bell Atlantic "'increaes the burden by replacing the 'no set of facts test' with a 'show me the facts' test")
124. Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 MINN. L. REV. 1851 (2008) (contending that plausibility tesdng violates the Seventh Amendment)
125. Etde Ward, The AfierShocks of Twombly; Will We "Notice" Pleading Changes?, 82 ST. JOHN'S L. REV. 893, 905-18 (2008) (stressing that much still remains unclear as to the meaning of Bell Atlantic)
126. Ryan C. Gist, Note, Transactional Pleading: A Proportional Approach to Rule Eight in the Wake of Bell Adandc v. Twombly, 2008 Wis. L. REV. 1013, 1035-46 (proposing a rule amendment that would require plainuffs to plead a varying degree of factual particularity proportional to the dangers of both over-restriction and abuse in any given situation)
127. Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases 7-8 (2009) (unpublished manuscript) (lamenting Bell Atlantic's substantive impact). Professor Dodson's above-cited article is a good place to start, and Professor Spencer's article most helped me to understand the narrow question of what the decision actually meant.
128. See also Scott Dodson, Comparative Convergence in Pleading Standards, 158 U. PA. L. REV. (forthcoming 2009), available at http://ssrn.com/abstract= 1351994 (comparing American pleading to pleading in the rest of the world); A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH. L. REV. (forthcoming 2009) (manuscript at 13-18), available at http://ssrn.com/abstract= l349951 (arguing that pleading today centrally requires a complaint to describe events about which there is a presumption of impropriety).
129. Kendall W. Hannon, Note, Much Ado About Twombly ? A Study on the Impact of Bell Adandc Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811 (2008).
130. See id. at 1835-38
131. Joseph A. Seiner, The Trouble with Twombly.- A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. ILL. L. REV. (forthcoming), available at http://ssm.com/abstract=1273713 (finding a small increase in the rate of dismissal among a small example of Wesdaw cases, but the methodology of searching for the permissive Conley in early cases and the restrictive Twombly in the later cases would bias the sample in favor of increasing dismissal).
132. Hannon, supra note 75, at 1837 (reporting a civil rights dismissal rate of 41.7% under the pre-Twombly standard and 52.9% under Twombly).
133. See generally Stephen B. Burbank, Ignorance and Procedural Law Reform: A Call for a Moratorium, 59 BROOK. L. REV. 841, 845-46 (1993) (nodng that there was "litde relevant empirical evidence" when the Advisory Committee adopted the mandatory disclosure rules)
134. Carl Tobias, Civil Justice Delay and Empirical Data: A Response to Professor Heise, 51 CASE W. RES. L. REV. 235, 237-38, 244-46 (2000) (describing the events leading up to the adopdon of the amendments).
135. See FED. R. Crv. P. 26(a) (1993) (amended 2000).
136. See id. 26(a)(1), (2), (3).
137. Id. 26(a)(1).
138. See DONNA STIENSTRA, FED. JUDICIAL CTR., IMPLEMENTATION OF DISCLOSURE IN UNITED STATES DISTRICT COURTS WTFH SPECIFIC ATTENTION TO COURTS' RESPONSES TO SELECTED AMENDMENTS TO FEDERAL RULE OF CIVIL PROCEDURE 26, at 4 (1998).
139. FED. R. CIV. P. 26(a)(1) advisory committee's note on 1993 amendments ("A major purpose of the revision is to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information.").
140. See Linda S. Mullenix, Hope over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795, 810 (1991) (observing as to the proposed disclosure rule that "there is virtually no empirical study of the current practice of such informal discovery, the efficacy of such experiences, or the results of informal discovery").
141. Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 VAND. L. REV. 1295, 1348 (1978).
142. William W Schwarzer, The Federal Rules, the Adversary Process, and Discovery Reform, 50 U. PITT. L. REV. 703, 721-23 (1989).
143. See Clermont & Eisenberg, supra note 1, at 133.
144. See Charles W. Sorenson, Jr., Disclosure Under Federal Rule of Civil Procedure 26(a)-"Much Ado About Nothing?," 46 HASTINGS LJ. 679, 687 (1995).
145. THOMAS E. WILLCING ET AL. FED. JUDICL\L CTR., DISCOVERY AND DISCLOSURE PRACTICE, PROBLEMS, AND PROPOSAI^ FOR CHANGE (1997)
146. see also Thomas E. Willging et al. An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. REV. 525 (1998).
147. JAMES S. KAKALIK ET AL., RAND INST, FOR CIVIL JUSTICE, DISCOVERY MANAGEMENT (1998).
148. WILLGING ET AL., supra note 89, at 1.
149. Id. at 5-6.
150. Id. at 6.
151. Id.
152. KAKALIK ET AL., supra note 90, at 4.
153. Id. at 5.
154. Id. at 48-52.
155. Id. at 51-52.
156. See FED. R. Crv. P. 26(a) (1).
157. Id. 26(a)(l)(A)(i)
158. see also id. 26(a)(l)(A)(ii).
159. FED. R. CIV. P. 26(a)(1) (1993) (amended 2000).
160. Kuo-Chang Huang, Mandatory Disclosure: A Controversial Device with No Effects, 21 PACE L. REV. 203 (2000)
161. see also Andrew T. Hayashi, The Effects of Mandatory Disclosure (July 13, 2008), available at http://ssrn.com/abstract=1212822 (evaluating the effect of the Rule 26(a) early disclosure requirement on litigation outcomes by using empirical analysis).
162. Huang, supra note 102, at 242-43.
163. Id. at 243-44.
164. Id. at 263.
165. Id.
166. See also Jeffrey W. Stempel, Ulysses Tied to the Generic Whipping Post: The Continuing Odyssey of Discovery "Reform," LAW & CONTEMP. PROBS., Spring/Summer 2001, at 197, 225-28 (noting that mandatory disclosure has not had "much salutary impact" and calling for further study).
167. For all the rule amendments, with their explanations by advisory committee notes, see Kevin M. Clermont, History of Amendments to the Federal Rules of Civil Procedure (Apr. 2007), http://legall.cit.comell.edu/kevin/ statsupps/articles/arti-cle.htm.
168. See Judith A. McKenna & Elizabeth C. Wiggins, Empirical Research on Civil Discovery, 39 B.C. L. REV. 785, 787 n.ll (1998) (identifying the two major studies as WIL, LIAM A. GLASER, PRETRIAL DISCOVERY AND THE ADVERSARY SYSTEM (1968), and PAUL R. CONNOLLY ET AL., FED. JUDICIAL CTR., JUDICIAL CONTROLS AND THE CIVIL LITICATTVE PROCESS (1978))
169. Daniel P. Kessler & Daniel L. Rubinfeld, Empirical Study of the Civil Justice System, in 1 HANDBOOK OF LAW AND ECONOMICS 343, 379-80 (A. Mitchell Polinsky & Steven Shavell eds., 2007) (flagging also George B. Shepherd, An Empirical Study of the Economics of Pretrial Discovery, 19 INT'L REV. L. & ECON. 245 (1999)).
170. Kuo-Chang Huang, Does Discovery Promote Settlement? An Empirical Answer, 6 J. EMPIRICAL LEGAL STUD, (forthcoming 2009), available at http://ssm.com/ abstract=995349.
171. For background, see TAIWAN CODE OF CIVIL PROCEDURE (Kuo-Chang Huang trans., Richard Lawton Thurston ed., 2006);
172. CHANG-FA LO, THE LEGAL CULTURE AND SYSTEM OF TAIWAN (2006)
173. Hungdah Chiu & Jyh-pin Fa, The Legal System of the Republic of China in Taiwan, in 2A MODERN LEGAL SYSTEMS CYCLOPEDIA, at ch. 12 (1989)
174. Liane Newton & Wang Jong, A Research Guide to Taiwan (ROC) Law, 3 J. CHINESE L. 257 (1989)
175. Tay-sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country, 11 PAC. RIM L. & POL'Y J. 531 (2002).
176. See Huang, supra note 110 (manuscript at 12-14).
177. Id. (manuscript at 19).
178. Id. (manuscript at 33-34).
179. See FIELD ET AL., supra note 20, at 1266-89; Chiorazzi et al., supra note 61, at 137-38.
180. Tobias, supra note 78, at 244
181. see Thomas E. Willging, Past and Potential Uses of Empirical Research in Civil Rulemaking, 77 NOTRE DAME L. REV. 1121 (2002).
182. But cf. Robert G. Bone, The Empirical Turn in Procedural Rule Making: Comment on Walker, 23 J. LEGAL STUD. 595, 597-98, 613 (1994) (stressing the desirability of limits on a proposal to require such research before rulemaking)
183. Bryant G. Garth, Observations on an Uncomfortable Relationship: Civil Procedure and Empirical Research, 49 ALA. L. REV. 103, 106-13 (1997) (cataloguing the difficulties of such reform-oriented research);
184. Richard Marcus, Confessions of a Federal "Bureaucrat": The Possibilities of Perfecting Procedural Reform, 35 W. ST. U. L. REV. 103, 113-16 (2007) (arguing that empiricists have played and will play only a small role in rulemaking).
185. See generally Symposium, Empirical Studies of Civil Procedure, LAW & CONTEMP. PROBS., Summer 1988, at 1 (discussing how empirical analysis can further the study of civil procedure and including articles involving original empirical analysis).
186. See Tobias, supra note 78, at 242 & n.36, 245 & n.46.
187. Id. at 249.
188. See Michael Heise, The Future of Civil Justice Reform and Empirical Legal Scholarship: A Reply, 51 CASE W. RES. L. REV. 251, 251-54 (2000).
189. See Chiorazzi et al., supra note 61, at 128-31 (listing no studies of dispositive motions, other than summary judgment, as of 1988)
190. cf. Hoffman, supra note 74, at 1223 n.28 (citing a few strands of early evidence on motions to dismiss). A more recent study of motions to dismiss, giving numbers somewhat lower than earlier estimates, found in 1988 that the percentage of federal cases involving one or more Federal Rule 12(b)(6) motions was 13% of the sample; the court decided such a motion in 10%, and granted it in 6%, of all cases in the sample; and grant of the motion resulted in termination of 3% of the sample.
191. See THOMAS E. WILLGING, FED. JUDICIAL CTR., USE OF RULE 12(B)(6) IN Two FEDERAL DISTRICT COURTS 8-9 (1989)
192. INST, FOR THE ADVANCEMENT OF THE AM. LEGAL SYSTEM, CIVIL CASE PROCESSING IN THE FEDERAL DISTRICT COURTS 47-49 (2009) (finding diat 15% of federal cases in 2005 involved one or more motions to dismiss of any kind, of which 54% were granted in whole or part). I expect that Bell Atlantic mil trigger more studies of motions to dismiss, as defendants begin to use these motions to feel out the plaintiffs' proof and as courts struggle to divine the new standard of decision.
193. See, e.g., sources cited supra notes 75-76.
194. See CLERMONT, supra note 12, at 79-83.
195. FED. R. CIV. P. 56(c). For a recent discussion of a state analogy, see Robert A. Sedler, The Michigan Supreme Court Diminishes the Right to Trial by Jury in Civil Cases 7-23 (Wayne St. U. L. Sch. Legal Studies Research Paper Series, No. 08-13, 2008), available at http://ssm.com/abstract=l118807.
196. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986).
197. See id. at 255 ("Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge, whether he is ruling on a modon for summary judgment or for a directed verdict.").
198. See Chiorazzi et al., supra note 61, at 128-31 (lisdng only two studies of summary judgment as of 1988: an early FJC study reported in JOE S. CECIL & C.R. DoucLAS. FED. JUDICIAL CTR., SUMMARY JUDGMENT PRACTICE IN THREE DISTRICT COURTS (1987), and die flawed study by William P. McLauchlan, An Empirical Study of the Federal Summary Judgment Rule, 6 J. LEGAL STUD. 427 (1977), with the latter criticized at length by Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gommorrahf, 1 J. EMPIRICAL LEGAL STUD. 591, 607-11 (2004))
199. David L. Shapiro, The Story of Celotex; The Role of Summary Judgment in the Administration of Civil Justice, in CrvIL PROCEDURE STORIES, supra note 58, at 359, 381-83 (critiquing more recent studies of summary judgment).
200. Compare Shapiro, supra note 125, at 386 & n.89 (ciung authorides "who favor judicial efficiency in the face of what they see as increasing strains on the system and who may be willing to give second place to the significance of the 'day-in-court' tradition"), with id. at 386 & n.90 (citing authorities "who see summary judgment as a potentially cosdy device, as one that is in a sense 'elitist' because it tends to favor defendants, and as one that threatens both to divorce results from contextual consideration of all the evidence as presented by live witnesses in open court and to undermine the role of the jury").
201. See id. at 386 n.90.
202. See id. at 386 n.89.
203. 550 U.S. 372 (2007)
204. Buckley v. Haddock, 292 F. App'x 791 (11th Cir. 2008) (granting summary judgment despite a videotape, which is available at http://www.youtube.com/ watch?v=SWC7iSGCk-s).
205. Scott, 550 U.S. at 374.
206. Id. at 375.
207. Id. at 381.
208. Id. at 383-84.
209. Id. at 380.
210. Id. at 389 (Stevens, J., dissenting).
211. Id. at 390.
212. See id. at 391-92
213. David Kessler, Justices in the Jury Box: Video Evidence and Summary Judgment in Scott v. Harris, 127S. Ct. 1769(2007), J. Harv.j.l. & Pub. pol'y423, 429-30 (2008)
214. see also Dan M. Kahanetal., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 866 (2009) (showing that about a quarter of tested people who viewed the Scott videotape, which is available at http://www.youtube.com/vratch?v=DBY2y2YsmN0, disagreed with the view that deadly force had been justified)
215. Howard M. Wasserman, Orwell's Vision: Video and the Future of Civil Rights Enforcement, 68 MD. L. REV. (forthcoming 2009), available al http://ssm.com/abstract=1219162 (advocating caution in granting summary judgment based on video evidence in civil rights cases)
216. Hovrard M. Wasserman, Video Evidence and Summary Judgment: The Procedure
217. Scott, 550 U.S. at 397 (Stevens, J., dissenting).
218. Joe S. Cecil et al., A Quarter-Century oj Summary Judgment Practice in Six Federal District Courts, 4J. EMPIRICAL LEGAL STUD. 861 (2007)
219. see also INST, FOR THE ADVANCE-MENT OF THE AM. LEGAL SYSTEM, supra note 120, at 49-52 (finding consistendy that 17% of federal cases in 2005 involved one or more summary judgment motions, of which 54% were granted in whole or in part).
220. Cecil et al., supra note 139, at 874-76.
221. See also Theodore Eisenberg & Charlotte Lanvers, Summary Judgment Rales over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts (Cornell L. Sch. Research Paper, No. 08-022, 2008), available at http://ssm.com/abstract=l138373 (reinforcing this point, while poindng out some limitations of the FJC study). For example, the sizable case category of employment discriminadon (AO code 442) is often empirically disdnctive
222. See Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 HARV. L. & POL'V REV. 103 (2009) [hereinafter Clermont & Schwab, Employment Discrimination Update]
223. Clermont K.M. & Schwab S.J., How employment discrimination plaintiffs fare in federal court, 1 J. Empirical Legal Stud. 429 (2004) [hereinafter Clermont & Schwab, Employment Discrimination].
224. Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEGAL STUD. 429 (2004) [hereinafter Clermont & Schwab, Employment Discrimination];
225. A fine study of this particular case category, Vivian Berger et al. Summary Judgment Benchmarks for Settling Employment Discrimination Lawsuits, 23 HoF- STRA LAB. & EMP. LJ. 45 (2005), looked at a sample of employment discriminadon cases in two districts during the period around 2000 and found that the court decided summary judgment modons by defendants in 23% of the cases, with the defendants experiencing a 64% success rate on those motions (with a much higher rate against pro se plainuffs).
226. Id. at 53-57.
227. Thus; summary judgment is a common means of disposing of this category of cases. See Laura Beth Nielsen et al., Uncertain Justice: Litigating Claims oj Employment Discrimination in the Contemporary United States 16-18 (Am. Bar Ass'n Found. Research Paper Series, No. 08-04, 2008), available at http://ssm.com/abstract=1093313;
228. Schneider, supra note 74, at 16-17. Moreover, a sampling of online judicial opinions on defendants' summary judgment modons in Tide VII employment discriminadon cases showed a statistically significant effect of the political party of the President who had appointed the trial judge
229. John Friedl & Andre Honoree, Is Justice Blind? Examining the Relationship Between Presidential Appointments of Judges and Outcomes in Employment Discrimination Cases, 38 CUMB. L. REV. 89 (2007).
230. Cecil et al., supra note 139, at 882.
231. Id. at 883.
232. Id.
233. Common knowledge was that the granting of summary judgment became rampant only after the Supreme Court had explicated and blessed the summaryjudgment device in a trilogy of cases in 1986: Cekiex Corp. v. Catrett, 477 U.S. 317 (1986)
234. Anderson V. Liberty Lobby, Inc., 477 U.S. 242 (1986);
235. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
236. See Shapiro, supra note 125, at 379-81 (citing sources expressing that view). The FJC study proves this common knowledge wrong, in that the increase in granting summaryjudgment predates the trilogy. See Cecil et al., supra note 139, at 902. On the possible link between the long-term increase in summary judgment and the long-term decline in civil trial, see infra note 186.
237. Cecil et al., supra note 139, at 886-89.
238. The proposal, published for public comment in August 2008, appears at Report of the Civil Rules Advisory Committee 21-56, available at http://www.uscourts. gov/rules/Reports/CV-Report.pdf
239. see Civil Rules Advisory Comm., Judicial Conf. of the U.S., Minutes Nov. 8-9, 2007, at 19-30, available at http://wwwuscourts.gov/rules/Minutes/CVll- 2007-min.pdf.
240. Civil Rules Advisory Comm., Judicial Conference of the U.S., Minutes Apr. 19-20, 2007, at 3-22, available at http://www.uscourts.gov/rules/Minutes/CV04- 2007-min.pdf;
241. see Civil Rules Advisory Comm., Judicial Conf. of the U.S., Minutes Nov. 8-9, 2007, at 19-30, available at http://www,uscourts.gov/rules/Minutes/CVll- 2007-min.pdf;
242. Civil Rules Advisory Comm., Judicial Conference of the U.S., Minutes Apr. 19-20, 2007, at 3-22, available at http://www.uscourts.gov/rules/Minutes/CV04- 2007-min.pdf;
243. Civil Rules Advisory Comm., Judicial Conference of the U.S., Minutes Sept. 7-8, 2006, at 24-30, available at http://www.uscourts.gov/rules/Minutes/ CV09-2006-min.pdf
244. see also Adam N. Steinman, An Ounce of Prevention: Solving Some Unforeseen Problems xvith the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process, 103 Nw. U. L. REV. COLLOQUY 230, 230-32 (2008), http://www.law.northwestem.edu/lawreview/colloquy/2008/45/LRColl2008n45Steinman. pdf (discussing the rationale behind the Committee's proposal).
245. See Report of the Civil Rules Advisory Committee, supra note 147, at 21-26.
246. See, e.g. Memorandum from Joe Cecil & George Cort, Fed. Judicial Ctr., to Judge Michael Baylson (Nov. 2, 2007), available at http://www.fjc.gov/ public/pdf.nsf/lookup/insumjre.pdf/$file/insumjre.pdf (reporting that local rules requiring statements of uncontested fact seem to have litde impact).
247. HANS ZEISEL ET AL., DELAY IN THE COURT, at xxii (2d ed. 1978)
248. see also INST, FOR THE ADVANCEMENT OF THE AM. LEGAL SYSTEM, supra note 120, at 1 (condnuing the search for procedures to defeat the serious problem of delay); THE LAW'S DEIAY (C.H. van Rhee ed., 2004) (featuring comparative and historical studies lamenting delay).
249. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW§21.14 (7th ed. 2007)
250. Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. LEGAL STUD. 399, 445-48 (1973).
251. George L. Priest, Private Litigants and the Court Congestion Problem, 69 B.U. L. Rev. 527 (1989).
252. Id. at 557;
253. see alsoTrzcey E. George & Chris Guthrie, Induced Litigation, 98 Nw. U. L. Rev. 545, 563 (2004) (arguing that the increased availability of court resources may fail to reduce congestion because of the corresponding increase in litigation demand);
254. John Leubsdorf, The Myth of Civil Procedure Reform, in Civil Justice in Crisis 53 (Adrian A.S. Zuckerman ed., 1999) (questioning more generally the efficacy of procedural reform).
255. Priest, supra note 152, at 535-39.
256. Michael Heise, Justice Delayed?: An Empirical Analysis of Civil Case Disposition Time, 50 Case W. Res. L. Rev. 813, 848 (2000);
257. see also Priest, supra note 152, at 535, 537 (forwarding the "congestion equilibrium hypothesis" while suggesting "that there is likely to be some equilibrium level of delay within any jurisdiction," but recognizing that procedure can be made more or less just at any given equilibrium level of delay and also acknowledging that certain reforms such as increasing court costs or altering the local legal culture could lower the equilibrium somewhat).
258. Theodore Eisenberg & Kevin M. Clermont, Trial by Jury or Judge: Which Is Speedier?, 79 Judicature 176, 176-78 (1996) (observing that means tell the same story as medians).
259. See, e.g., Posner, supra note 151, § 21.15, at 628 ("Court queues are longest for parties seeking civil jury trials.")
260. Leon Sarpy, Civil Juries, Their Decline and Eventual Fall, 11 Loy. L. Rev. 243, 255-56 (1963) (similar implication)
261. see also Gordon Bermant et al., Fed. Judicial Ctr., Protracted Civil Trials 43-45 (1981) (giving survey results).
262. Eisenberg & Clermont, supra note 156, at 199.
263. See Heise, supra note 155, at 815-16.
264. See Thomas H. Cohen & Steven K. Smith, Civil Trial Cases and Verdicts in Ijirge Counties, 2001, Bulletin (Bureau of just. Stat., Wash. D.C.), Apr. 2004, at 1, 3, 8 (noting that the sample also included a small number of real property cases);
265. see also Theodore Eisenberg et al., Litigation Outcomes in State and Federal Courts: A Statistical Portrait, 19 Seattle U. L. Rev. 433, 449 (1996) (explaining that these state data on juries and judges contrast the median time from filing to verdict with the median time from filing to judgment, respectively). The pattern persisted in a more recent study
266. See Lynn Langton & Thomas H. Cohen, Civil Bench and Jury Trials in State Courts, 2005, Spec. Rep. (Bureau of just. Stat., Wash. D.C.), Oct. 2008, at 1, 8. A separate but significant point is that in terms of time on the docket, state jury cases take longer than federal jury cases
267. See Thomas H. Cohen, General Civil Jury Trial Litigation in State and Federal Courts: A Statistical Portrait, 5 J. Empirical Legal Stud. 593, 606-08 (2008).
268. Cohen & Smith, supra note 160, at 1.
269. The studies' difference in time periods is not the explanation either. Our study found that judge-tried cases took longer than jury-tried cases every year from fiscal year 1947 through fiscal year 1994, while it performed its specific computations and analyses on fiscal years 1979-1994.
270. See Eisenberg & Clermont, supra note 156, at 178-79. The state data include 11,675 cases (76% jury-tried) from only calendar year 2001. Nat'l Ctr. for State Courts, Civil Justice Survey of State Courts, 2001, http://www.icpsr.umich.edu/cocoon/NACJD/STUDY/03957.xml. Accordingly, I did a new study of the federal data for fiscal years 1995-2006, a period bracketing the state year and including 16,709 cases (73% percent jury-tried). I dropped 276 extraordinarily delayed jury-tried personal injury cases all terminated in the District of Puerto Rico on December 4, 2000. The federal situation has not changed since our earlier study: judge-tried cases still take longer than jury-tried cases every year, with the median judge-tried case now spending 641 days on the district court docket, compared to the median jury-tried case terminating in 581 days.
271. The state data, see Nat'l Ctr. for State Courts, supra note 162, indicate on average that state jury trials start almost six months after state bench trials, while our study suggested that federal judges do not delay jury trials by much if at all
272. See Eisenberg & Clermont, supra note 156, at 180 & n.21.
273. The state data, see Nat'l Ctr. for State Courts, supra note 162, indicate on average that state judges delay only about twenty-three days after the trial ends, while our study suggested that federal judges delay more than three months.
274. See Eisenberg & Clermont, supra note 156, at 180, 199.
275. See Posner, supra note 151, § 21.15, at 628 ("Jury trials are more costly than bench trials. Parties are therefore 'charged' more for jury trials by being made to wait in line longer.")
276. Posner, supra note 151, at 447 (recommending "a substantial fee" to discourage demands for jury trial). Policies to discourage jury trial are not unthinkable, as courts have long discouraged criminal jury trials by imposing harsher sentences on those defendants who pursued a jury trial rather than a bench trial.
277. See Thomas M. Uhlman & N. Darlene Walker, "He Takes Some of My Time; I Take Some of His": An Analysis of Judicial Sentencing Patterns in Jury Cases, 14 Law & Soc'v Rev. 323 (1980).
278. Taking the state data for 2001 and the federal data for 1995-2006, see supra note 162, I computed, for each state county and for each federal district, the difference between the median days for a jury-tried case and the median days for a judge- tried case. The standard deviation is about 158 for those county figures and about 114 for those district figures, meaning that states show more variability in their relative speeds of handling trials than do the federal courts. Some of the federal variability may indeed stem from the effect of the local state attitude; the federal and state data do show some correlation, so that as the county's tendency to delay jury trials increases, the local federal district's tendency to speed jury trials decreases. See also infra note 191 (noting that the number of state jury trials has fallen more precipitously than state judge trials perhaps due to state procedures that discourage jury trials).
279. See generally Field et al., supra note 20, at 125-36 (giving background on settlement process)
280. Felstiner W.L.F., et al., The Emergence and Transformation of Disputes: Naming, Blaming Claiming. 15 Law & SocV Rev. 631, 636, (1981) [0]nly a small fraction of injurious experiences ever mature into disputes
281. Marc Galanter, Reading the landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4, 11-36 (1983) (exploring "current American disputing patterns").
282. See Galanter, supra note 167, at 11-36.
283. See, e.g., Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (in Some Cases), 83 Geo. LJ. 2663, 2671-91 (1995) (argu-ing that settlements are not inherently inferior to adjudicated outcomes). In reality, however, reformers would not find it easy to raise, or for that matter lower, the setdement rate.
284. See supra text accompanying note 153.
285. See Robert H. Mnookin & Lewis Komhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950, 997 (1979).
286. See Richard A. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 53 U. Chi. L. Rev. 366, 388 (1986).
287. See id. at 372, 388 (suggesting that there is an optimal setdement rate)
288. see also Owen M. Fiss, Against Settlement, 93 Yale LJ. 1073 (1984) (discussing the problem of relying too heavily on settlement).
289. See Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. Rev. 1,1-4 (1996).
290. Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339, 1354-59, 1387-88 (1994);
291. Stephen McG. Bundy, The Policy in Favor of Settlement in an Adversary System, 44 Hastings LJ. 1, 73-78 (1992).
292. See Chiorazzi et al., supra note 61, at 131-37.
293. Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 Law & Soc'y Rev. 525, 534-37 (1981);
294. see also David M. Trubek et al., The Costs of Ordinary Litigation, 31 UCLA L. Rev. 72, 86-87 (1983). For a comparison to numbers from abroad
295. see Masayuki Murayama, Japanese Disputing Behavior Reconsidered 7-9 (June 2008) (unpublished manuscript), available at http://www.iias.sinica.edu.tw/ resource/970621/970621-l-10.pdf (suggesting that percentages in other countries-Japan and England-are similar at early steps of the dispute pyramid, before persons get involved in the legal system itself).
296. See Miller & Sarat, supra note 176, at 544 (showing 50 total court filings out of 1000 total grievances).
297. We showed the fate of cases over the years from 1979 to 2000. The coding of disposition method became consistent enough to use only in fiscal year 1979, and data were then available only through fiscal year 2000.
298. Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 j. Empirical Legal Stud. 705, 723-28 & tbls.4, 5, 6 (2004) (faulting especially AO codes 6, 14, and 17, although their errors are offsetting). Her conclusions included that the AO data, without impractical unscrambling that involves at least auditing the cases' files, tended to overstate the decline of the civil trial, although this decline certainly existed. Id. at 728-33.
299. Furthermore, she saw an increase (over time) in pretrial disposition as offsetting that decline in civil trials and a slight decline in settlement, although this conclusion rested heavily on a comparison of recent data to incommensurable data from 1970. Id.
300. Finally, she argued that the AO classifies many nonfinal dispositions as settlements, so that she found only a 51.4% settlement rate-3.5% abandonment, 5.4% default judgment, 2.0% consent judgment, and 40.5% "settled"-in a few hundred cases sampled from fiscal year 2000. See id. at 730 tbl.7 (omitting prisoner cases and government recovery of overpayments and student loans). The AO data, analyzed by my method without her unscrambling, would show a 66.2% settlement rate, not 51.4%, for the same sort of cases from the same fiscal year. However, her 32.1% rate for nonfinal dispositions derived in part from her broad definition of nonfinal disposition, including not only transfer and the like, but also voluntary dismissal recorded without any indicator of settlement and even dismissal pending consummation of settlement. Many of these so-called nonfinal dispositions, then, are actually agreed settlements or are effectively settlements; most of the remaining dispositions are in the nature of temporary dismissals that will result in eventual settlement, if not immediate abandonment, because settiement is how most cases end anyway. Therefore, her settlement rate is understated. An alternative, but still crude, comparison of our results would be to change the denominators, by omitting her nonfinal dispositions and my so-called other dispositions, the latter being 13.3%. Then, her settlement rate and mine are both 76%.
301. I have refined the division of AO codes along the following lines. First, tried cases are now those with a method- of -disposition value of 7 to 9. Second, cases adjudicated without trial are those with a method -of -disposition value of 6, 15, 17, 19, or 20. Third, settled cases are those with a method- of -disposition value of 2 (lack of prosecution), 4 (default judgment), 5 (consent judgment), 12 to 14 (dismissals: voluntary, settled, or other), or 18 (statistical closing). Code 3 switched in usage around 1991 from voluntary dismissal to dismissal for lack of jurisdiction, so I grouped its earlier usage with settlement, but its usage in 1991 and later with nontrial adjudication. Fourth, other dispositions are all remaining method- of -disposition values, predominantly remand or transfer to another court.
302. See Clermont & Schwab, Employment Discrimination, supra note 141, at 440 n.14.
303. The definition of settlement rate is critical. See Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Care?, 6 J. Empirical Legal Stud. Ill, 112-15 (2009).
304. The different settlement rates that others sometimes invoke, e.g., Hadfield, supra note 179, at 730, usually stem from different definitions. My interest here is in the grievance pyramid, and hence in the difference between cases that the system has to adjudicate and those that exit the sides of the pyramid. To make this distinction from contested judgments, I am defining settlement rate in the district courts to include the plaintiffs abandonment or the defendant's concession, as well as compromise by private negotiations or through ADR. I could alter my definition in various ways.
305. First, if I were interested in disposition without any judicial input, I could add the requirement that the procedural progress code shows no court action, which would drop the 67.7% settlement rate for fiscal year 2005 all the way to 17.5%. Second, if I were more interested in compromise by the parties, I could instead excise method- of -disposition codes 2 (lack of prosecution) and 4 (default judgment) from the realm of settlement, which would drop that 67.7% settlement rate to 61.5%. Third, if I were interested only in dispositions of a more final sort, I could omit my so- called other dispositions from the denominator, which would raise that 67.7% rate to 75.5%. Fourth, no matter what my interest, I could try to get inside the dismissals coded 12, 13, 14, or 18 to determine which entries represented compromise and which represented adjudication; but in deference to the limits of time, I take comfort in Professor Hadfield's findings that the adjudicated dismissals in those particular codes are offset by the settlements erroneously included within the codes for adjudicated dispositions.
306. See id. at 723-28.
307. See Leonidas Ralph Mecham, Admin. Office of the U.S. Courts, Judicial Business of the United States Courts 2005, at 155 tbl.C-1 (2005), available at http://www.uscourts.gov/judbus2005/appendices/cl.pdf. Settlement practice varies considerably with locale and case type, as well as over time.
308. See Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 Cornell L. Rev. 719, 733 (1988). On the determinants of settlement more generally, see Kessler & Rubinfeld, supra note 109, at 381-83.
309. For these percentages, I am categorizing the AO data that underlie the table cited supra note 181 by using the codes specified supra note 180.
310. For the percentage of litigated judgments, I used 20.7% + 1.3% + .22(10.3%) = 24.3%. The comparable percentage for 1980, at the time of the telephone survey, was 23.8%. For the percentage on appeal, see infra note 242 and accompanying text.
311. The trend of the vanishing civil trial is apparent from the hard copy of the Annual Report of the Director of the Administrative Office of the United States Courts. Over the years its Table C-4, prepared with the procedural progress codes for cases terminated during or after trial, shows a steady decrease from almost 12% of civil terminations having reached trial in the 1960s to the current levels approaching 1%. During that period, the growing number of federal judges managed to increase the absolute number of civil trials as the caseload grew, until reaching a peak of 12,570 trials in fiscal year 1985 according to the AO's measure.
312. See Shari Seidman Diamond & Jessica Bina, Puzzles About Supply-Side Explanations for Vanishing Trials: A New Look at Fundamentals, 1 J. Empirical Legal Stud. 637, 639-45, 649 (2004) (emphasizing the inadequacy of increase in number of federal judges, as well as showing the increase in weighted filings per judge over time). But civil trials per year have since dropped, so that in fiscal year 2006 there were many fewer civil trials (3555) than in fiscal year 1961 (5553 trials). The AO reports an uptick for fiscal year 2007.
313. See Ad Hoc Comm. on the Future of the Civil Trial, Am. College of Trial Lawyers, The "Vanishing Trial": The College, the Profession, the Civil Justice System, 226 F.R.D. 414, 414 (2005) ("'For every complex problem there is an answer that is clear, simple, and wrong.'" (quoting H.L. Mencken)); Clermont & Eisenberg, supra note 1, at 142-44; Symposium, The Vanishing Trial, 1 J. Empirical Legal Stud. 459 (2004); Symposium, Vanishing Trial, 2006 J. Disp. Resol. 1.
314. See, e.g., Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 46-48 (1996) (emphasizing growth of the competing criminal trial docket)
315. Lisa Blomgren Bingham, When We Hold No Truths to Be Self-Evident: Truth, Belief, Trust, and the Decline in Trials, 2006J. Disp. Resol. 131, 154 (emphasizing loss of public belief in truth)
316. Dennis J. Drasco, Public Access to Information in Civil Litigation vs. Litigant's Demand for Privacy: Is the "Vanishing Trial" an Avoidable Consequence?, 2006 J. Disp. Resol. 155, 155-57 (emphasizing litigants' desire for confidentiality)
317. Gross & Syverud, supra note 173, at 1-3 (emphasizing systemic pressure to setde)
318. Patrick E. Higginbotham, Judge Robert A. Ainsworth, Jr. Memorial lecture, Loyola University School of Imui: So Why Do We Call Them Trial Courts?, 55 SMU L. Rev. 1405, 1420 (2002) (emphasizing increased litigation costs)
319. Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 526-39 (1986) (emphasizing judicial and cultural assumptions)
320. Hope Viner Samborn, The Vanishing Trial, A.B.A. J., Oct. 2002, at 24, 26-27 (emphasizing the push toward ADR);
321. Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 Wis. L. Rev. 631, 632-39 (emphasizing the increase in judges' pretrial tasks). One particularly suggestive study links, albeit tentatively and partially, the decline in the civil trial to the increase in summary judgment grants.
322. See Burbank supra note 125, at 617-18;
323. See also Supra text accompanying notes 139-147 (discussing trends in summary Judgemnt rates). A number of other articles intuited the same line.
324. See, e.g., Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichis Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982, 1048-57 (2003) (observing the increased use of summary judgment following the Supreme Court's 1986 trilogy)
325. Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev. 1329, 1333 (2005) ("Whatever influence these factors have actually had in the reduction in the number of trials, however, it is not unreasonable to suspect that one of the primary contributors to this result, at least at the federal level, has been the Supreme Court's substantial modification and expansion of the modern doctrine of summary judgment.");
326. Milton I. Shadur, Trials or Tribulations (Rule 56 Style)?, Litigation, Winter 2003, at 5, 5 (noting that the Supreme Court's 1986 trilogy "has worked a systemic sea change" in the granting of summary judgment motions).
327. See Marc Galan ter, The Vanishing Trial: A n Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 492-500 (2004).
328. See Ostrom et al., supra note 21, at 770-72.
329. See Herbert M. Kritzer, Disappearing Trials ? A Comparative Perspective, 1 J. Empirical Legal Stud. 735, 752-54 (2004) (examining trial patterns in England, Wales, and the Canadian province of Ontario, and finding a reasonably clear pattern of declining rates of civil trials).
330. But cf. Carolien Klein Haarhuis & Bert Niemeijer, Vanishing or Increasing Trials in the Netherlands?, 2006 j. Disp. Resol. 71, 76-97 (showing that various Dutch social pressures have increased the civil "trial" rate).
331. The explanation does not reside in a single case category, such as employment discrimination where the jury right has expanded in the recent past. See Clermont & Schwab, Employment Discrimination, supra note 141, at 432-38 (showing that the shift to jury trials for employment discrimination cases has offset the sharp decline in bench trials). The mass of cases, even with the employment discrimination cases omitted, would show virtually the same drop in absolute and relative use of judge trial.
332. See supra text accompanying notes 156-166. State courts, which generally act in ways that relatively discourage jury trials, have exhibited the opposite pattern: jury trials have fallen more precipitously than a broadly defined set of judge trials.
333. See Ostrom et al., supra note 21, at 770, 777.
334. Here I used the procedural progress codes of 7 and 9-termination during and after jury trial- to define jury trial usage. However, I used the disposition method code of 9-judgment on court trial- to define judge trial usage. The reason for abandoning the procedural progress code forjudge trials was that the AO unfortunately defines "trial" for procedural progress purposes to include all contested proceedings in which evidence is introduced, thus distortingly including a good number of motion hearings as judge trials. See Higginbotham, supra note 186, at 1405-06. However, the disposition method code did not become consistent until fiscal year 1979.
335. 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 (2004);
336. Hadfield, supra note 179; Margo Schlanger, What We Know and What We Should Know About American Trial Trends, 2006 J. Disp. Resol. 35.
337. Compare Paul Butler, The Case for Trials: Considering the Intangibles, 1 J. Empirical Legal Stud. 627, 629-35 (2004) (emphasizing the important "intangible" value trials have in society and expressing concern for the vanishing civil trial)
338. Stephen C. Yeazell, Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial, 1 J. Empirical Legal Stud. 943, 964-71 (2004) (offering an "equally plausible" view of the vanishing trial- that it is a natural and desirable sign of a maturing procedural system).
339. See supra note 184.
340. See supra note 145 and accompanying text.
341. See supra text accompanying notes 152-55.
342. See supra note 186.
343. See Diamond & Bina, supra note 184, at 654-57 (observing that the civil trial rate varies inversely with the civil caseload per judge, while arguing generally that the perceived lack of the judicial system's capacity rather than the lack of demand by litigants for trial has driven the civil trial's decline).
344. Harry Kalven, Jr. & Hans Zeisel, The American Jury (2d ed. 1971);
345. see also Harry Kalven, Jr., The Dignity of the Civil fury, 50 Va. L. Rev. 1055, 1063-68 (1964) (comparing jury verdicts and judges' desired outcomes in surveyed trials). For early reviews of Kalven and Zeisel's study
346. John Kaplan, Book Review, 115 U. Pa. L. Rev. 475 (1967) (reviewing the first edition), and Michael H. Walsh, The American Jury: A Reassessment, 79 Yale L.J. 142 (1969) (same)
347. Valerie P. Hans & Neil Vidmar, The American Jury at Twenty-Five Years, 16 Law & Soc Inquiry 323 (1991) (assessing The American Jury twenty-five years after its publication).
348. Kalven & Zeisel, supra note 200, at 63-64.
349. Michael J. Saks, Enhancing and Restraining Accuracy in Adjudication, Law & Contemp. Probs., Autumn 1988, at 243, 246-48 (reporting research by Shari S. Diamond).
350. Kalven & Zeisel, supra note 200, at 59.
351. Id. at 64.
352. Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124 (1992).
353. See id. at 1136-37.
354. See id. app. A, at 1175.
355. See id. app. B. On the later perceived dangers of using mean recoveries with the AO data
356. 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, 1489-90 (2003).
357. See Clermont & Eisenberg, supra note 205, at 1140-43.
358. See id. at 1148-57.
359. See id. at 1149-51.
360. Neil Vidmar & Valerie P. Hans, American Juries 147-89, 267-338 (2007);
361. Theodore Eisenberg et al., Juries, Judges, and Punitive Damages: An Empirical Study, 87 Cornell L. Rev. 743, 779 (2002)
362. Chris Guthrie et al., Inside the Judicial Mind, 86 Cornell L. Rev. 777, 778, 826-27 (2001);
363. Valerie P. Hans & Stephanie Albertson, Empirical Research and Civil Jury Reform, 78 Notre Dame L. Rev. 1497, 1506-11 (2003).
364. See Clermont & Eisenberg, supra note 205, at 1156-57.
365. See id. at 1174.
366. Numerous smaller studies give fairly consistent support to our results. See, e.g., Kevin M. Clermont & Theodore Eisenberg, Appeal from Jury or Judge Trial- Defendants' Advantage, 3 Am. L. & Econ. Rev. 125,144-45 (2001) [hereinafter Clermont & Eisenberg, Defendants' Advantage] (citing sources)
367. Clermont & Eisenberg, supra note 205, at 1151-55 (same);
368. Eric Helland & Alexander Tabarrok, Runaway Judges? Selection Effects and the Jury, 16J.L. Econ. & Org. 306, 329-30 (2000) (similarly attributing most jury/judge differences to selection effect). The same is true in studies of most specific case categories.
369. See, e.g., Clermont & Eisenberg, supra note 205, at 1154 n.78 (citing sources);
370. Elizabeth Graddy, Juries and Unpredictability in Products Liability Damage Awards, 23 Law & Pol'y 29 (2001) (comparing judge and jury awards in product liability cases). Although one commentator concluded that some significant jury/ judge differences do exist
371. Kimberly A. Moore, Judges, Juries, and Patent Cases-An Empirical Peek Inside the Black Box, 99 Mich. L. Rev. 365, 383-408 (2000);
372. Kimberly A. Moore, Jury Demands: Who's Asking?, 17 Berkeley Tech. LJ. 847, 870-75 (2002), that result seems attributable to the uniqueness of the patent litigation that she studied.
373. Kevin M. Clermont & Theodore Eisenberg, Xenophilia or Xenophobia in U.S. Courts? Before and After 9/11, 4 J. Empirical Legal Stud. 441, 447-51 (2007) [hereinafter Clermont & Eisenberg, Xenophilia II];
374. Philippe Signore, On the Role of Juries in Patent Litigation (pt. 1), 83 J. Pat. & Trademark Off. Soc'y 791, 821-24 (2001) (citing statistics indicating judge/jury differences in patent litigation outcomes and suggesting explanations for such differences that are unique to patent cases);
375. Clermont & Schwab, Employment Discrimination Update, supra note 141, at 130-31 (finding judges seemingly less favorable than juries in another case category).
376. Theodore Eisenberg & James A. Henderson, Jr., Inside the Quiet Revolution in Products Liability, 39 UCLA L. Rev. 731, 784-86 (1992);
377. Theodore Eisenberg & Stewart J. Schwab, What Shapes Perceptions of the Federal Court System?, 56 U. Chi. L. Rev. 501, 501-02 (1989);
378. Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 Ariz. L. Rev. 717, 717 (1998);
379. James A. Henderson, Jr. & Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 UCLA L. Rev. 479, 541 (1990).
380. See generally Thomas Gilovich, How We Know What Isn't So (1991);
381. Richard Nisbett & Lee Ross, Human Inference 195-296 (1980).
382. Marc Galanter, The Civil Jury as Regulator of the Litigation Process, 1990 U. Chi. Legal F. 201, 227-51.
383. See, e.g., supra Part LB (using win rate data to unearth the forum effect)
384. See generally Clermont & Eisenberg, supra note 19, at 587-92 (cautioning about difficulties inherent in using win rates to generate conclusions about how an underlying factor affects outcomes generally).
385. See, e.g., 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, 235-36 (1996); (Pubitemid 126406450)
386. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 j. Lecal Stud. 1 (1984).
387. See sources cited supra note 141, with results applied supra notes 190, 215, and infra text accompanying notes 236, 246.
388. Time trends remain key, as the jobs category has seen a startling drop as a percentage of the docket every year after fiscal year 2001, so that in fiscal year 2006 it accounted for under six percent of the federal civil docket. The category has dropped in absolute number of terminations every year after fiscal year 1999. Clermont & Schwab, Employment Discrimination Update, supra note 141, at 104.
389. See Clermont & Schwab, Employment Discrimination, supra note 141, at 432-38.
390. See Clermont & Schwab, Employment Discrimination Update, supra note 141, at 127.
391. See id at 118, 131-32.
392. Kevin M. Clermont & Theodore Eisenberg, Xenophilia in American Courts, 109 Harv. L. Rev. 1120 (1996)
393. Clermont & Eisenberg, Xenophilia II, supra note 215;
394. see also Christopher A. Whytock, Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. Rev. (forthcoming 2009) (manuscript at 37), available at http://ssrn.com/abstract=l257096 (presenting results of an empirical study, which strongly suggests that choice-of-law decisions are not motivated by judicial biases in favor of domestic litigants).
395. Clermont & Eisenberg, Xenophilia II, supra note 215, at 456-57.
396. Id.
397. Id.
398. See Clermont & Eisenberg, supra note 225, at 1132-33.
399. See id. at 1133-35.
400. See, e.g., Clermont & Schwab, Employment Discrimination, supra note 141, at 444 fig.9 (showing the decline in plaintiff win rate by pretrial adjudication in all civil cases);
401. Clermont & Eisenberg, Xenophilia II, supra note 215, at 456 & fig.2, 463 fig.5 (demonstrating downward time trends in diversity plaintiff win rate and in rate of diversity cases that end in judgment);
402. supra Part IA (discussing the upward time trend in removal rate);
403. supra text accompanying notes 120-49 (noting the rise in summary judgment grants);
404. supra Part IV.A (discussing the decline in trial rate).
405. See, e.g., supra Part I.A (recognizing a sudden reversal in the trend of the remand rate);
406. supra Part IV.A (describing the leveling off of the ratio of jury trials to judge trials);
407. supra note 221 and accompanying text (noting the peak in number of employment discrimination cases).
408. Clermont & Eisenberg, supra note 225, at 1125. Only since fiscal year 1986 and only in diversity cases have the AO codes indicated whether the principal parties were American or foreign.
409. See Clermont & Eisenberg, Xenophilia II, supra note 215, at 456. Figure 5 comes from the second Xenophilia article, and here replaces a graph showing the steadiness of damage awards in federal civil trials over the years that appeared in Clermont & Eisenberg, supra note 1, at 148.
410. Others have looked at just a sliver of the recent years and so have drawn shaky conclusions. See, e.g., Utpal Bhattacharya et al., The Home Court Advantage in International Corporate Litigation, 50 J.L. & Econ. 625, 650-53 (2007);
411. see also Clermont & Eisenberg, Xenophilia II, supra note 215, at 450-51, 453-55 (discussing Bhattarcharya et al., supra).
412. Only since fiscal year 1979 do the AO codes indicate which party prevailed by judgment in the district court. In any event, jobs was an insignificant case category in earlier years. The affirmance rate, which is the complement of the reversal rate, means the percentage of appeals that reach a decisive outcome and emerge as affirmed rather than reversed. I narrowly define "affirmed" as affirmed or dismissed on the merits. I define "reversed" as reversed, remanded, or modified, in part or completely.
413. This high number is characteristic of appellate courts with a predominantly mandatory docket, such as the federal courts of appeals. See Theodore Eisenberg & Geoffrey P. Miller, Reversal, Dissent, and Variability in Stale Supreme Courts: The Centrality of Jurisdictional Source 2, 8, 15-23, 37-38 (N.Y.U. Law & Legal Theory Research Paper Series, Working Paper No. 08-01, 2008), available at http://ssrn.com/abstract=1080563 (finding, by contrast, a 52% reversal rate for state appellate courts with discretionary jurisdiction, and attributing this to the selection effect of judges picking which cases to hear). Selection effect is more prevalent, and a bigger impediment to statistical analysis, at the level of the U.S. Supreme Court than for the federal courts of appeals.
414. Jonathan P. Kastellec & Jeffrey R. Lax, Case Selection and the Study of Judicial Politics, 5 J. Empirical Legal Stud. 407 (2008) (stressing problems in studying the Supreme Court).
415. See Clermont & Eisenberg, Defendants' Advantage, supra note 215, at 130-34
416. Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U. III. L. Rev. 947, 968-71.
417. See Clermont & Eisenberg, supra note 205, at 1153-54.
418. Chris Guthrie & Tracey E. George, The Futility of Appeal: Disciplinary Insights into the "Affirmance Effect" on the United States Courts of Appeals, 32 Fla. St. U. L. Rev. 357 (2005) (adding political science and psychology explanations of the tendency to affirm);
419. Harlon Leigh Dalton, Taking the Right to Appeal (More or Ijess) Seriously, 95 Yale LJ. 62, 73-86 (1985) (questioning the worth of appellate courts as an error-correction device).
420. See Clermont & Eisenberg, Defendants' Advantage, supra note 215, at 132 nn.11-12; supra text accompanying note 219.
421. See Clermont & Eisenberg, Defendants' Advantage, supra note 215, at 130-31, 154 (showing an appeal rate just over 20% for a selection of litigated judgments, and indicating 11.3% went all the way to affirmance or reversal)
422. Clermont & Eisenberg, supra note 238, at 951-52, 967 (showing an appeal rate well under 20%, and indicating that 7.4% of all AO judgments go to affirmance or reversal). Both studies used data from fiscal years 1988-1997.
423. Other evidence seems to confirm a limited effect of case selection on appeal. See, e.g., supra note 237. Most notably, a rich literature shows that appellate judges' attitudes (or ideologies) and other factors including case strength do influence success rates.
424. See Jeff Yates & Elizabeth Coggins, The Intersection of Judicial Attitudes and Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making, 27 Wash. U. J.L. & Pol'y (forthcoming 2009) (manuscript 7-13, 19-21, 30-31), available at http://ssrn.com/abstract=l120065. The role of attitudes would be hidden if case selection were robust on appeal.
425. For another example, see the state data from the National Center for State Courts, http://www.icpsr.umich.edu/cocoon/NACJD/STUDY/04539.xml, which indicate that the affirmance rate when a deferential standard of review governs is considerably higher than when a nondeferential standard governs.
426. Frank B. Cross, Decision Making in the U.S. Courts of Appeals 49-53 (2007) (showing indirectly a similar result for the federal courts of appeals, while generally finding that case strength and judicial attitudes influence affirmance rates for those courts). That the standard of review should matter is not too surprising, one might respond. But if case selection were operating, the affirmance rates under different standards of review should tend to equate. Some evidence goes the other way, however.
427. See Kess- ler et al., supra note 219, at 254, 256-57 (finding some selection effects on appeal).
428. See supra note 242.
429. Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J. Legal Stud. 379, 385, 421, 424 (1995) (suggesting a need for increased court fees on appeal).
430. Scott Barclay, Posner's Economic Model and the Decision to Appeal, 19 Just. Sys. J. 77, 95-96 (1997) (suggesting that taking an appeal is not an economic decision). Such reform would have the added benefit of lessening the workload of the appellate courts, a heavy workload having all sorts of deleterious effects on the appellate function.
431. Paul D. Carrington, The Function of the Civil Appeal: A Late- Century View, 38 S.C. L. Rev. 411, 428-29 (1987).
432. Kevin M. Clermont & Theodore Eisenberg, Anti-Plaintiff Bias in the Federal Appellate Courts, 84 Judicature 128, 130 tbl.l (2000)
433. Kevin M. Clermont & Theodore Eisenberg, Judge Harry Edwards: A Case in Point!, 80 Wash. U. L.Q. 1275, 1283 (2002);
434. Clermont & Eisenberg, Defendants' Advantage, supra note 215, at 135;
435. Clermont & Schwab, Employment Discrimination, supra note 141, at 446-56;
436. Clermont & Eisenberg, supra note 238, at 952 tbl.l. As to this effect, the state data tell a similar story.
437. Theodore Eisenberg & Michael Heise, Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal, 38 J. Legal Stud. 121 (2009).
438. Clermont & Eisenberg, supra note 238, at 952 tbl.l.
439. Theodore Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. Empirical Legal Stud. 659, 677-82 (2004) (strengthening the counterargument by making strong assumptions, including an assumed but unrealistic selection effect on appeal).
440. See id. at 682-85 (finding a residual attitudinal effect in the data even for the example of employment discrimination cases with their extremely low win rate). Appellate/trial court differences in attitude surely have an effect in certain types of cases.
441. Timothy Davis Fox, Right Back "In Facie Curiae "-A Statistical Analysis of Appellate Affirmance Rates in Court-Initiated Attorney-Contempt Proceedings, 38 U. Mem. L. Rev. 1, 2 (2007) ("The affirmance rate for the general appellate case population is in excess of 70%. The affirmance rate of the 932 court-initiated attorney-contempt [findings in Westlaw] cases included in this study is only about 32%.").