Israel's Supreme Court appellate jurisdiction: An empirical study

Cornell Law Review

Volumn 96, Issue 4, 2011, Pages 693-725

  Eisenberg, Theodore ^a,b   Fisher, Talia ^c   Rosen Zvi, Issi ^c  

^a MIT Sloan School of Management   (United States)

^b Cornell University ^*  (United States)

^c TEL AVIV UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79959401374     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (144)

1. See, e.g., Steven Shavell, On the Design of the Appeals Process: The Optimal Use of Discretionary Review Versus Direct Appeal, 39 J. LEGAL STUD. 63 (2010).
2. Theodore Eisenberg & Geoffrey P. Miller, Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source, 89 B. U. L. REV. 1451, 1454-55 (2009).
3. See Anna Harvey & Barry Friedman, Ducking Trouble: Congressionally Induced Selection Bias in the Supreme Court's Agenda, 71 J. POL. 574, 574-76 (2009) (demonstrating that congressional preferences influence the Supreme Court's decisions on grants of certiorari);
4. Jonathan P. Kastellec & Jeffrey R. Lax, Case Selection and the Study of Judicial Politics, 3 J. EMPIRICAL LEGAL STUD. 407, 408 (2008) ("[T]he Court's selection process raises the potential for selection bias in the inferences we draw from its cases."). Failure to account for the mechanism by which courts filter the opinions that are publicly available can also lead to questionable results.
5. See Denise M. Keele, Robert W. Malmsheimer, Donald W. Floyd & Lianjun Zhang, An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions, 6 J. EMPIRICAL LEGAL STUD. 213, 234-36 (2009).
6. Kevin M. Clermont & Theodore Eisenberg, Appeal from Jury or Judge Trial: Defendants'Advantage, 3 AM. L. & ECON. REV. 125, 125 (2001) [hereinafter Appeal from fury or fudge Trial];
7. Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U. ILL. L. REV. 947, 947 [hereinafter Plaintiphobia];
8. Theodore Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. EMPIRICAL LEGAL STUD. 659, 659 (2004);
9. Theodore Eisenberg & Michael Heise, Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal, 38 J. LEGAL STUD. 121, 137 (2009).
10. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 125 (1974) (explaining the litigation advantages enjoyed by wealthy, professional, and culturally dominant "repeat players").
11. Previous empirical studies conducted with respect to the ISC include the following: GAD BARZILAI, EPHRAIM YUCHTMAN-YAAR & ZEEV SEGAL, THE ISRAEU SUPREME COURT AND THE ISRAELI PUBUC (1994) (Hebrew);
12. Yoav Dotan, Do the "Haves" Still Come Out Ahead? Resource Inequalities in Ideological Courts: The Case of the Israeli High Court of Justice, 33 LAW & SOC'Y REV. 1059 (1999);
13. Yoav Dotan & Menachem Hofnung, Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out-of-Court Settlements, 23 LAW & POL'Y 1 (2001);
14. Meron Gross & Yoram Shachar, How Are Supreme Court Panels Selected - A Quantitative Analysis, 29 HEBREW U. L. REV. 567 (1999) (Hebrew);
15. Menachem Hofnung & Keren Weinshall Margel, Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice, 7 J. Empirical Legal Stud. 664 (2010);
16. Eli Salzberger, Acting Justices in the Supreme Court and Judicial Independence - Theoretical Analysis and Empirical Findings, 19 BAR ILAN L. REV. 541 (2003) (Hebrew);
17. Yoram Shachar, Meron Gross & Ron Haris, Anatomy of Discourse and Disagreements in the Israeli Supreme Court - A Quantitative Analysis, 20 TEL AVTV U. L. REV. 749 (1997) (Hebrew);
18. Yoram Shachar, Ron Haris & Meron Gross, Reference Patterns of the Supreme Court - A Quantitative Analysis, 27 HEBREW U. L. REV. 119 (1996);
19. Yoram Shacher, Meron Gross & Chanan Goldshmidt, 100 Leading Precedents - A Quantitative Analysis, 7 HAIFA U. L. REV. 243 (2003) (Hebrew);
20. Keren Weinshall-Margel, Supreme Court Decision-Making: An Empirical and Comparative Perspective from Israel (June 29, 2010) (unpublished manuscript) (on file with authors) [hereinafter Comparative Perspective], available at http://ssrn. com/abstract=l 632646.
21. See Courts Law (Consolidated Version), 5744-1984, 38 LSI 271, §41 (a) (1983-1984).
22. See id. § 41 (b).
23. Plaintiphobia, supra note 4, at 954 tb1.2.
24. Until the early 1990s, the ISC enjoyed a high level of legitimacy among the Israeli public and was one of the most popular state institutions. In a 1994 study, over two-thirds of respondents viewed the ISC as representative of the common citizen.
25. See BARZILAI ET AL., supra note 6, at 211. Over the course of the last decade, we have been witness to a decrease in public trust of the ISC. In a 2008 study conducted by Arye Rattner and Meir Ya'ish, only 48% of Jewish respondents and 53% of Arab respondents expressed trust in the ISC, while a parallel study, conducted by Rattner in 2000, showed that 80% of Jewish respondents and 66% of Arab respondents expressed trust in the ISC.
26. See Poll: Decline in Public Confidence in Government Institutions, HAARETZ. COM http://www.haaretz.co.il/hasite/spages/972853.html (last visited Mar. 13, 2011) (Hebrew). Due to the decrease in public legitimacy, the role and status of the ISC became much more controversial and moved, in recent years, to the center stage of the political debate. Questions regarding the nomination of justices, the ISC jurisdiction, its power of judicial review, and, more generally, judicial activism, are currently hotly debated among Israeli politicians, raising great public and media interest For an elaborate discussion
27. see MENACHEM MAUTNER, LAW & CULTURE IN ISRAEL IN THE BEGINNING OF THE 21ST CENTURY (2008) (Hebrew).
28. Yoram Shachar & Miron Gross, Acceptance and Rejection of Appeals to the Supreme Court: Quantitative Analyses, 13 LEGAL STUD. 329, 335-38 (1996) (Hebrew).
29. See sources cited supra note 4.
30. Eisenberg & Miller, supra note 2, at 1454.
31. Theodore Eisenberg & Stewart J. Schwab, What Shapes Perceptions of the Federal Court System?, 56 U. CHI. L. REV. 501, 517-18 (1989).
32. Note, Courting Reversal: The Supervisory Role of State Supreme Courts, 87 YALE L. J. 1191, 1201 (1978).
33. See Appeal from fury or fudge Trial, supra note 4, at 131 (showing overall reversal rate of 20.7% of federal tort and contract trials from fiscal years 1988 through 1997);
34. Plaintiphobia, supra note 4, at 952 tb1.1 (showing overall reversal rate of 18.4% of federal civil trials from fiscal years 1988 through 1997).
35. Eisenberg & Heise, supra note 4, at 134 tb1. 2 (showing overall trial reversal rate of 32.1% of state tort, contract, and property trials disposed of in 2001).
36. Eisenberg & Miller, supra note 2, at 1454.
37. Note, supra note 15, at 1201.
38. See, e.g., The Supreme Court, 2003 Term-The Statistics, 118 Harv. L. Rev. 497, 505 tbl. II (D) (2004) (showing that out of the seventy-six cases the Court reviewed on writ of certiorari and disposed of by full opinion, it reversed 64.5% and vacated 13.2%). The Court vacated 95.2% of the forty-two cases it disposed of by memorandum orders.
39. Id. This figure excludes a handful of specialized dispositions.
40. Id. at 505 n. o.
41. Theodore Eisenberg & Kuo-Chang Huang, The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary-An Empirical Lesson from Taiwan, INT'L REV. L. & ECON. (forthcoming 2011) (manuscript at 12 tb1.2).
42. Id. Interestingly, the reversal rate was not significantly influenced by legislation seeking to give the TSC greater control over its docket apparendy because the TSC had already seized de facto control over its docket before the legislative reform.
43. See id. at 30-31.
44. About the Court, COUR DE CASSATION, www.courdecassation. fr/about-the-court-9256.html (last visited Mar. 5, 2011).
45. SECRETARIAT GENERAL, ANNUAIRE STATISTIQUE DE LA JUSTICE 27 (2008) (Fr.) (2006 data) (reporting annually on statistics of the French legal system).
46. Plaintiphobia, supra note 4, at 952 tb1.1.
47. See id. at 952-54 (showing prodefendant differential for nearly every case category);
48. see also Eisenberg, supra note 4, at 672 tb1.4 (showing prodefendant differential for each major case category).
49. Eisenberg & Heise, supra note 4, at 134 tb1.2.
50. Id. (product liability).
51. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 52-53 (1984) (comparing prior studies and noting higher government success rate).
52. 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, 775-76 (1988).
53. Theodore Eisenberg & Henry Farber, The Government as Litigant: Further Tests of the Case Selection Model, 5 AM. L. & ECON. REV. 94, 119-27 (2003).
54. See id.
55. See Stanton Wheeler, Bliss Cartwright, Robert A. Kagan & Lawrence M. Friedman, Do the "Haves" Come Out Ahead? Winning and Losing in Slate Supreme Courts, 1870-1970, 21 LAW & SOCV REV. 403, 418 (1987).
56. Eisenberg & Heise, supra note 4, at 141-44 (finding no significant government variable in regression models of reversal of trial outcomes on appeal).
57. See Shachar & Gross, supra note 11. The findings reported below can be understood as compatible with the findings of the Shachar-Gross study. However, one must proceed with caution in comparing the two studies, which were conducted using different methodologies and on very different databases. Our study included all Israeli Supreme Court cases both published and unpublished, whereas the Shachar-Gross study referred to 40% of published cases.
58. See generally Courts Law (Consolidated Version), 5744-1984, 38 LSI 271 (1983-1984) (setting forth provisions governing the composition and operation of the Israeli judiciary).
59. This study does not include cases in which the ISC functions in its capacity as the High Court of Justice.
60. Courts Law (Consolidated Version) ch. 2, art 3.
61. Ordinances of Courts (Establishment of the Central District Court), 2007, KT 6585, 824.
62. Courts Law (Consolidated Version) ch. 2, art 2.
63. Id. § 40;
64. Basic Law: Judicature, 5744-1984, 38 LSI 101, ch. 2 (1983-1984).
65. See Basic Law: Judicature § 20.
66. See Courts Law (Consolidated Version) §§ 26, 30.
67. See, e.g., CrimA 125/50 David Ya'akobovich v. State of Israel 5 (1) PD 519 [1950].
68. This was the legal situation at the time period relevant for this study. See Courts Law (Consolidated Version) §§ 41, 52 (effective prior to the amendment described below). As of 2009, litigants in civil cases can no longer petition the court for discretionary appeal in all interim decisions. In 2008, the Courts Law was amended to include a restriction according to which the Minister of Justice is authorized to issue a decree stating types of decisions that are immune from interlocutory appeal. The Minister issued such a decree on March 7, 2009, stating such types of decisions including postponement of court hearings, size of judicial documents, and the like.
69. See Courts Decree (Types of Decisions on Which No Interlocutory Appeal Would Be Granted), 2009.
70. See Courts Law (Consolidated Version) § 41 (b).
71. CA 103/82 Chenion Haifa v. Matzat Or 36 (3) PD 123 [1982].
72. According to Dinim Veod, an Israeli online legal database, the case has been cited in 1, 187 cases-more dian any other Israeli court ruling.
73. See Search Results, DINIM VEOD, http://www.dinimveod.co.il (last updated Feb. 27, 2011) (search "case No. 103/82") (Hebrew).
74. See CA 103/82 Chenion Haifa v. Matzat Or 36 (3) PD 123, 127-28 [1982].
75. See id.
76. See Courts Law (Consolidated Version) § 41 (a).
77. Israeli law, which does not differentiate between appeals of acquittals and convictions, grants the prosecution the authority to appeal a defendant's acquittal. This authority is a matter of public debate in Israel. Just recendy, a committee that was established to reexamine the authorization has delivered its report, approving the current situation.
78. See THE REPORT OF THE COMM. TO RE-EXAMINE CRIMINAL CONVICTIONS BASED ON MAJORITY-OPINIONS & APPEALS OVER ACQUITTALS IN CRIMINAL TRIALS, http://www.justice.gov. il/MOJHeb/YeutzVehakika/News/Dochankar.htm (last visited Nov. 12, 2010) (Hebrew).
79. Parties to the criminal trial sometimes try to bypass the prohibition on interlocutory appeals by filing petitions to the High Court of Justice, which is authorized to review petitions against state agents (including the judicial branch). The High Court of Justice is very reluctant to grant such petitions and does so only in very rare cases.
80. Criminal Procedure Law (Consolidated Version), 5742-1982, 36 LSI 35, §§ 146-147 (1981-1982).
81. See DC 4927/92 State of Israel v. Ben Yehuda (1992) (unpublished opinion).
82. CrimA 1245/93 Shtarkman v. State of Israel 47 (2) PD 177 [1993].
83. DC 3251/91 Yishai v. State of Israel, PD 45 (5) 441 (1991).
84. Criminal Procedure Rules, 5734-1974, § 44 (7).
85. Criminal Procedure Law (Consolidated Version), 5742-1982, 36 LSI 35, § 205 (1981-1982).
86. Appeal from Jury or Judge Trial, supra note 4, at 131-34.
87. Priest & Klein, supra note 29, at 29 (stating that selection model "applies indistinguishably to trial and appellate disputes").
88. Appeal from Jury or Judge Trial, supra note 4, at 132-33. A subvariety of selection theory stresses information asymmetries between appellants and appellees and can forecast affirmance rates substantially different from 50%. The available data seem inconsistent with this theory.
89. Id. at 132 n. 12.
90. See sources cited supra note 4.
91. Appeal from Jury or Judge Trial, supra note 4, at 133.
92. Id.
93. Id. (citing RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 195 (1996)). Priest and Klein observe that a party's (presumably a defendant in most civil cases) greater interest in precedent might create differential stakes.
94. Priest & Klein, supra note 29, at 54. This suggests that defendants would appeal less often for fear of establishing adverse appellate precedents. But prior work does not find a pronounced difference in the appeal rates of plaintiffs and defendants; thus this source of possible differential stakes or case selection is likely not substantial.
95. See Appeal from Jury or Judge Trial, supra note 4, at 132 n. 11.
96. Cf. Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 CORNELL L. REV. 1124, 1153-54 (1992) (discussing the surprising rate of agreement between judges and juries).
97. See Lewis A. Komhauser, Modeling Collegia! Courts. II. Legal Doctrine, 8 J. L. ECON. & ORG. 441, 445-46 (1992);
98. see also Lewis A. Komhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegia! Courts, 81 CALIF. L. REV. 1, 1 (1993) (explaining that casebased outcomes and issue-based outcomes may differ). As Eisenberg and Miller note, "The relationship is not perfect, of course. Judges with discretionary jurisdiction may select some cases on the basis of the facts, especially if they consider the matter important.... Conversely, judges in mandatory cases will sometimes be primarily concerned with an issue rather than a case's outcome."
99. Eisenberg & Miller, supra note 2, at 1460.
100. Eisenberg & Miller, supra note 2, at 1461.
101. Id.
102. See Comparative Perspective, supra note 6, at 16.
103. See Eisenberg & Huang, supra note 21, at 3.
104. See Note, supra note 15, at 1201-02.
105. See Plaintiphobia, supra note 4.
106. To account for interlocutory appeals, we first surveyed 298 discretionary civil appeals (approximately half of all such appeals in our sample), finding 79 interlocutory appeals. We then assessed whether the interlocutory appeals systematically differed from other appeals. Interlocutory appeals did not materially differ in the distribution of case types and types of litigants reported in Table 1, in the pattern of outcomes reported in Table 2, or in the impact of having a government litigant reported in Table 6. Interlocutory appeals did, however, incur a higher rate of reversal in cases granted review than that reported in Table 3. Accordingly, we estimate that excluding all interlocutory appeals would reduce the discretionary civil case reversal rate in Table 3 to approximately 52% from 68.5%, which is still statistically significanily higher than the reversal rate in mandatory civil cases. Similarly, the rate of granting review for interlocutory appeals was higher than for other appeals. We estimate that, if interlocutory appeals were excluded, the rate of granting review would fall to approximately 13% from the 15.3% reported in Table 6. In 2008, the Courts Law of 1984 was amended, enabling the Minister of Justice to issue a decree announcing types of decisions for which interlocutory appeals would not be allowed. In 2009, the Minister issued such a decree thereby limiting the scope of interlocutory appeals.
107. See sources cited supra note 45.
108. Parties occasionally attempt to bypass this prohibition by filing petitions to the Supreme Court sitting as the High Court of Justice.
109. See, e.g., HCJ 11339/05 The State of Israel v. The District Court of Beer Sheba (July 11, 2006) (unpublished decision) (petitioning to the High Court of Justice against the district court, to circumvent the lack of interlocutory appeals in criminal trials). However, these cases are both negligible in volume and external to the criminal appellate system.
110. The website does not include cases decided in camera, but since those cases are but a fraction of the cases decided by the Court, the omission does not materially affect the analysis here.
111. See Courts Law (Consolidated Version), 5744-1984, 38 LSI 271, § 70 (a) (1983-1984).
112. Plaintiphobia, supra note 4, at 948-49;
113. see also Eisenberg & Heise, supra note 4, at 121.
114. A total affirmance is more restrictive than an affirmance. It treats as nonaffirmances, and hence as reversals, some results treated as missing in defining affirmed. These results are "affirmed and reversed", "affirmed, reversed, and vacated", and "affirmed and vacated." Using total affirmance rather than affirmance does not materially change our results.
115. See, e.g., Theodore Eisenberg & Charlotte Lanvers, What Is the Settlement Rate and Why Should We Corel, 6 J. EMPIRICAL LEGAL STUD. 111, 128 tb1.2 (2009) (showing twenty-nine different codes for outcomes of U. S. federal district court cases).
116. See, e.g., Eisenberg & Heise, supra note 4, at 123 (noting that just over one-half of appeals from trials culminated in a final appellate court decision).
117. Galanter, supra note 5, at 125.
118. For studies conducted in the United States see, for example, Donald R. Songer & Reginald S. Sheehan, Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals, 36 AM. J. POL. SCI. 235, 241 (1992) (analyzing both the published and unpublished decisions of the U. S. courts of appeals and finding that the overall success rate of the government was roughly four times higher than the success rate of individuals and two one-half times the success rate of businesses).
119. A study of federal civil cases between the years 1971 and 1991 revealed that big businesses (Fortune 2000 companies) had a success rate of 71% as plaintiffs and 61% as defendants when facing all types of litigants in court, whereas nonbusiness litigants won only 64% of the time as plaintiff and a mere 28% of the time as defendant.
120. See Terence Dunworth & Joel Rogers, Corporations in Court: Big Business Litigation in U. S. Federal Courts, 1971-1991, 21 LAW & SOC. INQUIRY 497, 558 (1996). Similarly, a study of diversity cases in federal courts found that in instances where litigants are of the same type (individual versus individual or corporate versus corporate), the plaintiff prevails 72% and 75% of the time, respectively; however, when corporate plaintiffs sue individuals, they win 91% of the time, but when individuals sue corporate plaintiffs, they win only 50% of the time.
121. See Theodore Eisenberg & Henry S. Farber, The Litigious Plaintiff Hypothesis: Case Selection and Resolution, 28 RAND J. ECON. (SPECIAL ISSUE) S92, S103 tb1.3 (1997). More recent empirical work assessing Galanter's theory has focused on appellate courts at the state and federal levels.
122. See Paul Brace & Melinda Gann Hall, "Haves" Versus "Have Nots" in State Supreme Courts: Allocating Docket Space and Wins in Power Asymmetric Cases, 35 LAW & SOCV REV. 393 (2001);
123. Plaintiphobia, supra note 4;
124. Donald R. Songer, Reginald S. Sheehan & Susan Brodie Haire, Do the "Haves" Come Out Ahead over Time?: Applying Galanter's Framework to Decisions of the U. S. Courts of Appeals, 1925-1988, in IN LITIGATION: DO THE "HAVES" STILL COME OUT AHEAD? 85, 93 tb1.3.2 (Herbert M. Kritzer & Susan S. Silbey eds., 2003) (describing a study of decisions from all circuits in the U. S. courts of appeals for a sixty-four-year period between 1925 and 1988 and finding that the federal government had a net advantage of 25.6%, state and local governments had a net advantage of 15.6%, businesses had a net advantage of negative 2.8%, and, at the bottom, individuals, with a net advantage of negative 12.6%);
125. see also Eisenberg, supra note 4, at 681 ("The 'haves' may come out ahead on appeal but their greater success rate may be completely attributable to dieir having come out ahead below."). Several studies applying Galanter's dieory to court decisions in other common law countries have generated similar findings.
126. See, e.g., Burton M. Addns, Party Capability Theory as an Explanation for Intervention Behavior in the English Court of Appeal, 35 AM. J. POL. SCI. 881, 894-95 (1991) (surveying the English Court of Appeal and finding that the government enjoyed a 25% advantage over corporate litigants and corporations enjoyed a 14% advantage over individuals);
127. Peter McCormick, Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949-1992, 26 CAN. J. POL. SCI. 523, 532 (1993) (describing a study of the Canadian Supreme Court revealing that the government's net advantage was approximately 5% higher than that enjoyed by big business, 26% higher than the net advant age found for odier businesses, and 30% higher than the success rate for individuals).
128. See Dotan, supra note 6, at 1059 ("[I]n litigation before the Israeli High Court of Justice, the 'haves' enjoyed only a limited advantage over 'have nots' in litigation outcomes.").
129. See id. at 1069-71.
130. Dotan, supra note 6, at 1071-72, 1077.
131. These findings support the claim that the state is a unique type of litigant, qualitatively different from all nonstate litigants, including ouher repeat players.
132. See, e.g., Herbert M. Kritzer, The Government Gorilla: Why Does Government Come Out Ahead in Appellate Courts), in IN LITIGATION: DO THE "HAVES" STILL COME OUT AHEAD?, supra note 83, at 343.
133. See supra note 52.
134. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002).
135. For a study of the effect of judges' personal characteristics at the Israeli trial court level
136. see Oren Gazal-Ayal & Raanan Sulitzeanu-Kenan, Let My People Go: Ethnic In-Group Bias in Judicial Decisions-Evidence from a Randomized Natural Experiment, 7 J. EMPIRICAL LEGAL STUD. 403 (2010).
137. See Courts Law (Consolidated Version), 5744-1984, 38 LSI 271, §26 (4) (1983-1984).
138. CA 103/82 Chenion Haifa v. Matzat Or 36 (3) PD 123 [1982].
139. Eisenberg & Miller, supra note 2, at 1479-80 tbl.4 (finding an average reversal rate of 28.1% for mandatory-jurisdiction cases in U. S. state supreme courts).
140. See id.
141. The reversal rate for the SSCs excluding capital punishment cases was 21.0%, with a 95% confidence interval of 17.0% to 25.3%.
142. Eisenberg & Miller, supra note 2, at 1492 tb1.7 (including capital punishment cases).
143. See sources cited supra note 4;
144. see also supra Table 4.