Does Procedure Stand Alone?
This Article collects and maps Supreme Court citations between different subject areas. Such mapping reveals which cases are central to a given subject matter and which represent cases that bridge subject matters. I am particularly interested here in civil procedure cases and how they relate to other doctrinal areas. Is civil procedure systematically informed by developments in other areas and does it, in return, engage them in dialogue? Or does civil procedure stand alone and develop doctrine that is rarely applied elsewhere?
This question is interesting statically, but even more so across time. For example, how close to each other are criminal and civil procedure? And has the relation between these two areas changed over time? This paper will provide a better understanding of how different areas of Supreme Court doctrine relate to one another and lays the groundwork for future large-scale research on citation patterns.
Close-ups: (each dot represents one of 8500 Supreme Court cases, each line one of 130,000 citations to another Supreme Court case)
This paper contributes to the empirical literature on pleading standards by studying the effect of Twombly and Iqbal at the state level. States account for the majority of civil litigation, yet they are understudied doctrinally and empirically. By examining pleading at the state level, we can leverage differences across space and time in a way that is impossible with studies at the federal level.
Using an array of principled empirical approaches, we find evidence that states that raised their pleading standards in the wake of Twombly and Iqbal experienced no decrease in filings, no evidence that plaintiffs changed how they wrote complaints, no evidence of an increase in motions to dismiss, and no increase in the grant rate on motions to dismiss. Until now, we simply did not know whether the existing literature at the federal level analyzed an outlier jurisdiction or whether pleading functions similarly in both state and federal courts. This paper fills that gap and lays the groundwork for future empirical research on national procedural uniformity and divergence.
A draft is a available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2468864
An Empirical Account of Federal Transfers in the Wake of Atlantic Marine.
This paper presents empirical findings on motions to transfer in the wake of last year’s Supreme Court decision in Atlantic Marine Construction Co. Inc. v. United States District Court for the Western District of Texas. Based on an original dataset of roughly 14,500 transfers, it traces the evolving patterns of inter-district transfers and how doctrinal changes affect the flow of cases between districts.
Transfers under §1404 might be innocent procedural vehicles to realize litigation efficiencies completely divorced from affecting the underlying suits. Or transfers under §1404 might chill litigation by vulnerable plaintiffs and exacerbate litigation advantages to the point where litigation outcomes have little connection to the underlying merits of the suit. Doctrinally, both of these extremes are imaginable. But until we have more empirical answers to how §1404 works in the various Circuits we will simply not know.
An Empirical Account of How Procedure Shapes the Way Individuals, Corporations, and the Government Litigate.
Building on my previous doctrinal work, this Article empirically analyzes how different entities (e.g. corporations, labor unions, federal agencies, individuals, municipalities, etc.) alter their litigation patterns and behaviors in response to procedural change.
In doing so, this paper breaks new ground in several ways. First, it introduces an original dataset, based on extensive archival research, centered around the transformative year 1938; a year that not only saw the promulgation of the Federal Rules of Civil Procedure but also the seminal Erie decision. Thus, this data is the first empirical examination of the key founding moment in modern civil procedure. Second, the Article is the first to demonstrate that facially neutral procedures shape which entities sue, get sued, how they litigate, and how cases are resolved. No longer can lawmakers and courts presume that procedure is neutral. Rather, this research shows that procedural change has a disparate impact on different entities. Procedures can be optimized for one kind of entity or another. This choice should not be, and need not be, made blindly. Instead, informed by empirical analysis, we can design procedural systems that accurately reflect our normative commitments.
Should civil litigation be fast, inexpensive or accurate? When these goals clash, which one should prevail? These questions are the subject of countless court opinions, policy arguments, academic debates, and civil procedure exams. Yet discussion of procedural values to date has taken place in the dark, lacking vital information about which procedural values matter to actual litigants.
This Article fills that void with empirical analysis. It analyzes an original dataset based on 1200 surveys mailed to a broad range of litigants and judges asking for their views on procedural values. It interprets survey responses by introducing to legal scholarship a novel combination of methodological tools: multi-dimensional scaling and circular regressions.
The analysis reveals a consensus among surveyed groups for not valuing highly speed, cost, and privacy. This consensus cuts against the prevailing wisdom in policy-making circles, court opinions, and academic literature.
Beyond this consensus, this Article also reveals significant conflict between groups over which of the remaining procedural values are most important. Federal judges prioritize fairness and participation. Large corporations value accuracy and finality. Pro se litigants stress the importance of accessibility and simplicity.
These findings raise pressing concerns: whenever we favor one procedural value over another, we favor some litigants over others. Conflict over prioritizing procedural values is, ultimately, conflict about prioritizing litigants themselves.