Resolving Malpractice Disputes: Imaging the Jury’s Shadow

The ability of juries to resolve malpractice suits was studied. Results showed that most of the time, jury outcomes represent a fair resolution of the claim, but the risk that the result will not be fair is real and troubling

Resolving Malpractice Disputes: Imaging the Jury’s Shadow

The ability of juries to resolve malpractice suits was studied. Results showed that most of the time, jury outcomes represent a fair resolution of the claim, but the risk that the result will not be fair is real and troubling

Judicially Compelled Disclosure of Researchers’ Data: A Judge’s View

Crabb looks at the approach one court has established to balance the demands of the legal system with the legitimate concerns of researchers

Continuous Monitoring of A/B Tests without Pain: Optional Stopping in Bayesian Testing

A/B testing is one of the most successful applications of statistical theory in modern Internet age. One problem of Null Hypothesis Statistical Testing (NHST), the backbone of A/B testing methodology, is that experimenters are not allowed to continuously monitor the result and make decision in real time. Many people see this restriction as a setback against the trend in the technology toward real time data analytics. Recently, Bayesian Hypothesis Testing, which intuitively is more suitable for real time decision making, attracted growing interest as an alternative to NHST. While corrections of NHST for the continuous monitoring setting are well established in the existing literature and known in A/B testing community, the debate over the issue of whether continuous monitoring is a proper practice in Bayesian testing exists among both academic researchers and general practitioners. In this paper, we formally prove the validity of Bayesian testing with continuous monitoring when proper stopping rules are used, and illustrate the theoretical results with concrete simulation illustrations. We point out common bad practices where stopping rules are not proper and also compare our methodology to NHST corrections. General guidelines for researchers and practitioners are also provided

Class Certification and the Substantive Merits

The United States Supreme Court, in its 1974 decision, Eisen v. Carlisle & Jacquelin, held that judges should not conduct a preliminary inquiry into the merits of a suit as part of the decision whether to certify a class. The federal courts have struggled ever since to honor Eisen\u27s bar while still conducting a credible certification analysis-a task complicated by the fact that merits-related factors are often relevant to Rule 23 requirements. The result is a muddled body of case law in which courts tend to certify generously and avoid inquiring into the merits of substantive issues even when those issues are crucial to the certification analysis. This approach creates high social costs by inviting frivolous and weak class action suits. This Article argues that the Eisen rule should be abolished. Trial judges should assess competing evidence, not just allegations, and should evaluate case strength whenever the specific requirements of Rule 23 call for an inquiry into merits-related factors. For example, a party relying on a substantive issue to show commonality or predominance should have to demonstrate a likelihood of success on the issue. The Article also goes further and recommends that judges always conduct a preliminary inquiry into the merits before certifying a class, regardless of whether merits-related factors are directly relevant to a specific requirement of Rule 23. The Article first reviews the history of the Eisen rule and surveys the current state of the law, before turning to a policy analysis of the rule\u27s effects. The policy discussion criticizes the traditional arguments and then offers a systematic evaluation of error and process costs. Error costs must be evaluated in light of the extremely high probability of postcertification settlement. Eisen\u27s liberal approach creates a substantial risk of erroneous certification grants that cannot be corrected later when a case settles. This risk coupled with the high likelihood of settlement invites frivolous and weak class action suits. The result is a serious error-cost problem with regard to certification. At the same time, requiring a merits review at the certification stage increases the risk of erroneous certification denials. But for several reasons this risk is not likely to increase dramatically, and the associated costs are not likely to be large. The net result therefore supports a merits inquiry, and this conclusion remains valid even after process costs are added to the policy mix

Analog Solutions: E-discovery Spoliation Sanctions and the Proposed Amendments to FRCP 37(e)

The ever-increasing importance of digital technology in today’s commercial environment has created several serious problems for courts operating under the Federal Rules of Civil Procedure’s (FRCP) discovery regime. As the volume of discoverable information has grown exponentially, so too have the opportunities for abuse and misinterpretation of the FRCP’s outdated e-discovery rules. Federal courts are divided over the criteria for imposing the most severe discovery sanctions as well as the practical ramifications of the preservation duty as applied to electronically stored information. As a result, litigants routinely feel pressured to overpreserve potentially discoverable data, often at great expense. At a conference at the Duke University School of Law in 2010, experts from all sides of the civil-litigation system concluded that the e-discovery rules were in desperate need of updating. The subsequent four years saw a flurry of rulemaking efforts. In 2014, a package of proposed FRCP amendments included a complete overhaul of Rule 37(e), the provision governing spoliation sanctions for electronically stored information. This Note analyzes the proposed Rule and argues that the amendment will fail to accomplish the Advisory Committee’s goals because it focuses too heavily on preserving the trial court’s discretion in imposing sanctions and focuses too little on incentivizing efficient and cooperative pretrial discovery. The Note concludes by offering revisions and enforcement mechanisms that would allow the new Rule 37(e) to better address the e-discovery issues identified at the Duke Conference

Empirical Perspectives on Mediation and Malpractice

The use of mediation in the medical malpractice context is examined. The impact of any court-related alternative dispute resolution program is also discussed

Navigating Troubled Waters: Dealing with Personal Values When Representing Others

Legal academics have long struggled to define the appropriate role a lawyer\u27s moral judgment ought to play in client representation. In its simplest terms, the question is: Must a lawyer be a hired gun, seeking all lawful objectives sought by a client, or may a lawyer act independently to avoid the harm a client\u27s actions will cause innocent parties? Following disclosure of lawyer involvement in the Savings and Loan, Enron and WorldCom failures, many in society joined those scholars calling for greater moral responsibility. In this article, I provide an analytical approach consistent with existing law and practice that seeks to find a place for an individual lawyer\u27s moral principles. Lawyers, particularly new lawyers, need to know just how much discretion they will have to follow their consciences. Understanding the limits on one\u27s moral discretion will affect the way a lawyer practices and should influence her choice of practice environment. Prior to accepting a position, a lawyer should know whether she will be comfortable with the prevailing standards of practice