The Reduced Form of Litigation Models and the Plaintiff\u27s Win Rate

In this paper I introduce what I call the reduced form approach to studying the plaintiff\u27s win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff\u27s and defendant\u27s beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties\u27 subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties\u27 beliefs. I show how models with very different-looking structure can be understood in common reduced form terms, and I then use the reduced form to prove several general results. First, a generalized version of the Priest-Klein model can be used to represent any other model\u27s reduced form, even though the Priest-Klein model uses the Landes-Posner-Gould ( LPG ) litigation rule while some other models do not. Second, Shavell\u27s famous any-win-rate result holds generally, even in models with party belief distributions that are both highly accurate and identical across plaintiffs and defendants. Third, there are only limited conditions under which the LPG litigation rule can be rejected empirically; this result undermines the case against the LPG rules\u27 admittedly non-optimizing approach to modeling litigation selection. Finally, I use the reduced form approach to clarify how selection effects complicate the use of data on the plaintiff\u27s win rate to measure changes in legal rules. The result, I suggest, is that recent work by Klerman & Lee advocating the use of such data is unduly optimistic

Can We Learn Anything About Pleading Changes from Existing Data?

In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court\u27s controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to potentially important critiques of my empirical implementation made by the FJC\u27s Joe Cecil and Professor David Engstrom. An additional contribution of the present paper is to elucidate some important challenges for empirical work in civil procedure. First, researchers should carefully consider which covariates belong in statistical models, while also taking care in assessing the empirical importance of controlling for covariates. Second, data collection protocols should be designed with behavioral assumptions in mind. But third, researchers should not let the perfect be the enemy of the good: even data protocols that are less than perfectly designed may be broadly useful

Can Simple Mechanism Design Results be Used to Implement the Proportionality Standard in Discovery?

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations

What We Don\u27t Know About Class Actions but Hope to Know Soon

Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and workers. In short, there is considerable controversy over whether class actions are an economic menace or a boon to the little guys. We have two purposes in this brief Article. First, we wish to focus continuing attention on the need for more empirical information about the actual functioning of the federal class action system. Second, we wish to share our current efforts to use a one-of-a-kind collection of docket reports, originally harvested from Public Access to Court Electronic Records (PACER), to fill the empirical gap. Presentation of empirical findings resulting from this effort awaits a future article. However, this Article includes suggestions as to how the federal judiciary and Administrative Office of the United States Courts (“AO”) could improve data management and data reporting so as to make information about federal class actions more accessible to scholars and others interested in how the class action device operates in practice and what reforms, if any, would be advisable

Can We Learn Anything About Pleading Changes from Existing Data?

In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court\u27s controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to potentially important critiques of my empirical implementation made by the FJC\u27s Joe Cecil and Professor David Engstrom. An additional contribution of the present paper is to elucidate some important challenges for empirical work in civil procedure. First, researchers should carefully consider which covariates belong in statistical models, while also taking care in assessing the empirical importance of controlling for covariates. Second, data collection protocols should be designed with behavioral assumptions in mind. But third, researchers should not let the perfect be the enemy of the good: even data protocols that are less than perfectly designed may be broadly useful