“Do You Hear What I Hear?”: Empirical Research on Earwitness Testimony

Despite recurring empirical interest in eyewitness research, legal scholars have conducted far less research exploring the significance and limitations of earwitness testimony. Nevertheless, earwitness expert testimony serves an important purpose, which dates back many centuries. This Article analyzes empirical studies regarding earwitness testimony and places them into a recognized legal framework regarding admission of expert testimony. The result of this analysis demonstrates that, if courts believe that eyewitness testimony meets the restrictions on junk science employed by both Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Federal Rules of Evidence, then the courts should also admit earwitness testimony under the same rationale. This Article, however, recognizes the many methodological issues in the study of earwitness testimony and addresses both the limitations in earwitness expert testimony and the hurdles it must face to meet the evidential standards of admissibility

Justice Stevens and Securities Law

In this Article, we tell the overlooked story of Justice Stevens\u27s important role in Supreme Court securities law decisions. In Part I, where we briefly highlight Stevens\u27s career before his 1975 appointment to the Supreme Court, we observe that we can identify no evident interest in or connection to federal securities law or the securities industry, making his contributions all the more remarkable. The only foreshadowing of his prolific opinion-writing on the subject of securities law was his voluminous writing of opinions, in general, while serving on the Seventh Circuit Court of Appeals. This commitment to authoring opinions stemmed, in turn, from Stevens\u27s unforgettable experience as general counsel to a special commission that investigated bribery on the Illinois Supreme Court in the late 1960s, as Part I relates

An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

The Civil Rules Committee of the Judicial Conference of theUnited States recently began considering the need for specificrules regarding multidistrict litigation (MDL) proceedings. Thepossibility of creating rules specifically for MDL originates withrecently proposed legislation prompted by groups typically tiedto the defense bar. One area the Civil Rules Committee isconsidering concerns the use of fact sheets in MDL proceedings.These party-negotiated questionnaires—directed at bothparties to the case—inform judges and attorneys about thescope of the proceeding. Understanding whether these casemanagement tools are currently being used and how they workwith other tools, such as bellwether trials, in MDL proceedingswill help inform a discussion of the need for specific MDL rules.Despite their importance, very little published, empirical worklooks at fact sheets in MDL proceedings. This is the firstcomprehensive study of the use of fact sheets.Using a sample of 116 mass tort proceedings—typicallyinvolving products liability—centralized through MDLbetween 2008 and 2018, we examine when fact sheets wereordered, what the procedures for complying with the casemanagement order were, what information was collected, andwhat effect fact sheets had on the termination of theproceedings. The proceedings ranged between 3 and 40,533actions and were open a minimum of 118 days and a maximumof 3811 days. Actions terminated within the proceeding at least 98% of the time, but little available information existsregarding how the actions terminated. These proceedings werecentralized in forty districts. We find that fact sheets wereordered more than half the time and were most likely to be usedin the largest proceedings. The information in fact sheets wasused in proceedings in several ways, including to identify casesfor bellwether trials and winnowing cases. Using fact sheets,moreover, led to quicker termination of the proceeding, all elsebeing equal. Our sample of proceedings suggests judges use factsheets to organize products liability proceedings when judgesperceive they are merited, after considering the size of theproceeding or the nature of the litigation. The frequency withwhich judges already employ fact sheets and the variation inuses call into question both the need for a rule and how to writeone without tying the hands of transferee judges. Many issuesregarding how fact sheets are used remain to be studied morein-depth. We encourage future studies regarding how factsheets are used across MDL proceedings

Whither Notice Pleading?: Pleading Practice in the Days Before Twombly

Most scholars mark the end of notice pleading in federal civil cases at the time of the Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly or, at the latest, at the Court’s 2009 decision in Ashcroft v. Iqbal. Scholars have noted occasional departures from the notice pleading standard in more complex civil cases, but notice pleading has been thought to remain the prevalent practice in simple negligence cases. This Article examines two sets of complaints filed in federal district courts in 2006 in cases alleging injuries from simple automobile accidents. We find that notice pleading practice, as indicated by Form 11 in the Appendix of Forms that accompany the Federal Rules of Civil Procedure, had already been abandoned in these routine cases before Twombly in favor of narrative pleading that provides a fuller expression of the factual context of the claim. If pleading practice did not follow the notice pleading standard before Twombly in simple negligence cases that had the benefit of specific Form 11 guidance, it is doubtful that attorneys adhered to notice pleading practice in other more complex federal civil cases. In this regard, our findings also raise doubts about the utility of Form 11. In discussing our findings, we also briefly explore the psychology of pleading and whether the emergence of narrative pleading was an unintended consequence of a series of amendments to the Federal Rules of Civil Procedure starting in the mid-1980s and intended to allow more effective judicial management of litigation. While the Twombly/Iqbal plausibility standard certainly presents a higher standard than notice pleading, the trend is clear: pleading additional facts beyond the requirements of notice pleading predated Twombly or Iqbal and lower courts had already started to abandon the notice pleading standard

Psychology and BAPCPA: Enhanced Disclosure and Emotion

This article describes a program of research that applies social analytic jurisprudence to test some of the assumptions in consumer bankruptcy law and policy.4 Our work first seeks to describe selected provisions from the newly enacted bankruptcy amendments that pertain to enhanced disclosure requirements, and then to locate some of the behavioral assumptions implicit in these provisions. 5 Next, we assess the accuracy of these assumptions based on an experiment that we conducted looking at a simulated online shopping trip that we constructed specifically to test the effects of enhanced disclosur

Religion at work: Evaluating hostile work environment religious discrimination claims

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\u27s race, color, religion, sex, or national origin.” Impressive bodies of research have investigated sexual harassment and gender discrimination in the workplace. Few studies address religious discrimination in the workplace, though claims have increased more than 200 percent in the last decade. This research investigated how social psychological theories can help explain perceptions of religious discrimination claims, particularly claims of a hostile work environment based upon religion. Study 1 manipulated participants\u27 focus and similarity between the participant and complainant for cases involving the victim\u27s religion (Jewish or Muslim employees facing harassment). Study 2 focused on the harasser\u27s religion (Evangelical Christian or Mormon supervisors proselytizing at work). Across the studies, self-referenced legal judgments (how you would feel if you were the victim) predicted the objective, reasonable person legal judgments. Self-referencing theory and similarity between the participant and complainant affected the outcome variables (likelihood of discrimination and likelihood of a hostile work environment). In-group/out-group perceptions affected both the outcome variables and also the process variables (the prima facie requirements for a valid claim: unwelcomeness, religious causality, severity, pervasiveness), providing support for Social Identity Theory. These findings were particularly strong in Study 2 when both the participants and harassers were Evangelical Christian, a situation with heightened similarity and in-group status. Overall, self-referencing theory helps predict whether discrimination occurred, while social identity theory also affects the legal decision making process

“Do You Hear What I Hear?”: Empirical Research on Earwitness Testimony

Despite recurring empirical interest in eyewitness research, legal scholars have conducted far less research exploring the significance and limitations of earwitness testimony. Nevertheless, earwitness expert testimony serves an important purpose, which dates back many centuries. This Article analyzes empirical studies regarding earwitness testimony and places them into a recognized legal framework regarding admission of expert testimony. The result of this analysis demonstrates that, if courts believe that eyewitness testimony meets the restrictions on junk science employed by both Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Federal Rules of Evidence, then the courts should also admit earwitness testimony under the same rationale. This Article, however, recognizes the many methodological issues in the study of earwitness testimony and addresses both the limitations in earwitness expert testimony and the hurdles it must face to meet the evidential standards of admissibility

Religion at work: Evaluating hostile work environment religious discrimination claims

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\u27s race, color, religion, sex, or national origin.” Impressive bodies of research have investigated sexual harassment and gender discrimination in the workplace. Few studies address religious discrimination in the workplace, though claims have increased more than 200 percent in the last decade. This research investigated how social psychological theories can help explain perceptions of religious discrimination claims, particularly claims of a hostile work environment based upon religion. Study 1 manipulated participants\u27 focus and similarity between the participant and complainant for cases involving the victim\u27s religion (Jewish or Muslim employees facing harassment). Study 2 focused on the harasser\u27s religion (Evangelical Christian or Mormon supervisors proselytizing at work). Across the studies, self-referenced legal judgments (how you would feel if you were the victim) predicted the objective, reasonable person legal judgments. Self-referencing theory and similarity between the participant and complainant affected the outcome variables (likelihood of discrimination and likelihood of a hostile work environment). In-group/out-group perceptions affected both the outcome variables and also the process variables (the prima facie requirements for a valid claim: unwelcomeness, religious causality, severity, pervasiveness), providing support for Social Identity Theory. These findings were particularly strong in Study 2 when both the participants and harassers were Evangelical Christian, a situation with heightened similarity and in-group status. Overall, self-referencing theory helps predict whether discrimination occurred, while social identity theory also affects the legal decision making process

Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases

Commentators have observed two apparent trends in the use of legal scholarship by the judiciary. First, judges now cite law review articles in their opinions with less frequency. Second, despite this general decline in the invocation of legal scholarship, judges now cite articles in specialty journals with more frequency. Some commentators attribute the apparent decline in the courts’ use of legal scholarship to the increasingly theoretical and impractical nature of that scholarship. A few studies even suggest that the increasing use of specialty journals by the courts reflects the gap between the content of legal scholarship in general law reviews and the practical needs of the judiciary. Others defend the academy, taking the position that academics continue to write meaningful doctrinal articles and that theoretical and interdisciplinary pieces encourage broader intellectual discourse regarding legal issues. The study underlying this article analyzes and counters the claim of the diminishing role of legal scholarship in the context of business law cases. Specifically, the study focuses on the use of legal scholarship by Delaware state courts from 1997 to 2007 and then on an interval basis dating to 1965. The study detects no general downward trend in the use of legal scholarship in business law cases. Moreover, the study undertakes a detailed analysis of factors predicting a court’s likelihood to cite legal scholarship. Overall, the study provides a unique insight into when, why, and how courts invoke legal scholarship in business law cases and, consequently, may help inform future scholarship intended to influence court decisions in this discipline