Accuracy Of Adjudication Research Articles

Information Costs and the Civil Justice System

Abstract Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features and probes its implications for compliance with the law, efficiency of law, accuracy in adjudication, trial outcome statistics, and the evolution of legal standards. The model’s claims are applied to and tested against the relevant empirical and legal literature.

Fee shifting and accuracy in adjudication

When adjudication is not perfectly accurate, litigants with unmeritorious cases may benefit from court errors, which in turn may result in a dilution of incentives for primary behavior and frivolous litigation. We study how shifting the court fees to the loser may improve the accuracy of adjudication. If litigation costs are high, the American rule performs better than the English rule, and vice versa if litigation costs are low. Yet, the optimal rule typically lies in between the American and the English rule, allowing the court to modulate fee shifting based on the accuracy of the evidence submitted by the parties. Our results rationalize observed patterns of use of fee shifting. In the United States, fee shifting is less common than in Europe, where litigation costs are lower. When used, fee shifting commonly depends on the accuracy of the evidence. Moreover, fee shifting filters extreme cases out of litigation, resulting in a more representative set of cases—including also more extreme ones—being adjudicated under the American rule as compared to the English rule. Finally, we identify a characteristic of fee-shifting rules, their “flatness”, which guarantees that fee shifting does not affect the settlement rate and show that flatness is a feature of an optimal mechanism.

Investing in Private Evidence

Technological advances have changed our ability to acquire and save information, with far-reaching implications in legal discovery and evidence. In this paper, we analyze the interrelated effect of legal presumptions and discovery rules in incentivizing the voluntary adoption of private evidence technology. We show that, under any legal presumption, by making private evidence investments not discoverable, more evidence, rather than less, would be made available to courts, with a likely increase in the accuracy of adjudication. Alternative legal presumptions and asymmetries in role-probabilities affect the type of evidence technology likely to be adopted. We compare the legal presumptions and discovery rules adopted in the U.S. and Europe and consider which evidence regime is likely to foster greater investments in private evidence.

Information Costs and the Civil Justice System

Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features of the real world and probes its implications for compliance with the law, efficiency of law, accuracy in adjudication, trial outcome statistics, and the evolution of legal standards. The model’s claims are applied to and tested against the relevant empirical and legal literature.

Fee Shifting and Accuracy in Adjudication

When adjudication is not perfectly accurate, litigants with unmeritorious cases may benefit from court errors, which in turn may result in a dilution of incentives for primary behavior and frivolous litigation. We study how shifting the court fees to the loser may improve the accuracy of adjudication. If litigation costs are high, the American rule performs better than the English rule, and vice versa if litigation costs are low. Yet, the optimal rule typically lies in between the American and the English rule, allowing the court to modulate fee shifting based on the accuracy of the evidence submitted by the parties. Our results rationalize observed patterns of use of fee shifting. In the United States, fee shifting is less common than in Europe, where litigation costs are lower. When used, fee shifting commonly depends on the accuracy of the evidence. Moreover, fee shifting filters extreme cases out of litigation, resulting in a more representative set of cases—including also more extreme ones—being adjudicated by American courts as compared to European ones. Finally, as an aside, we identify a characteristic of fee-shifting rules, their “flatness”, which guarantees that fee shifting does not affect the settlement rate and show that flatness is a feature of an optimal mechanism.

Competence to stand trial: An overview

The legal concept of competence to stand trial has ancient roots. The history of this legal construct in Anglo-Saxon law will be reviewed. A competent defendant is a requirement of the criminal justice system because it reflects interests related to the dignity of the process, the accuracy of adjudication, and respect for the autonomy of defendants. In the United States, legal decisions have established the contours of the requirements related to competent participation in adjudication. Forensic psychiatrists have operationalized the requirements for assessment purposes. Recent decisions in the United States have expanded earlier notions of competence to include decision-making during the course of adjudication. These decisions will be reviewed. The process of clinical evaluation, the use of collateral information, and other aspects of expert opinion formation will be reviewed. In addition, the special problems posed by amnesia, pro se defendants, competence to plead insanity, and unrestorable defendants will be discussed. The use of standardized assessment tools will also be reviewed. The application to the Indian criminal justice system will be discussed.

Ohio v. Clark: Brief of amicus curiae American Professional Society on the Abuse of Children in support of petitioner.

“Testimonial” statements are inadmissible against criminal defendants under the Confrontation Clause unless the declarant was subject to cross-examination. Statements are testimonial if the primary purpose of the speaker and the interrogator was to create an out-of-court substitute for trial testimony. Ohio v. Clark (2015) considered whether a 3-year-old’s disclosure of abuse to his teacher is testimonial. This brief surveyed case law, statutory law, and psychological and criminological research in arguing that it is not. First, young children do not appreciate that their disclosures may be used at trial, because they do not fully understand the legal system. Furthermore, many children do not want their disclosures to lead to criminal punishment because of their relationship with the abuser. In other contexts, the court has recognized that children often lack the same purpose and understanding as adults. Second, the primary purpose of teachers and other mandated reporters is to protect children rather than to punish abusers. The statutory purpose of mandated reporting laws is to protect children and rehabilitate the family, and, as a practical matter, states achieve this primarily through child-protective services investigations and civil proceedings in juvenile court. The court has recognized the distinction between a protective and punitive purpose in defining other constitutional rights. Third, finding children’s statements nontestimonial will promote accuracy in adjudication. The courts assess the reliability of statements before admitting them into evidence, and defendants are free to challenge their credibility. Flexibility in classifying children’s statements as testimonial will encourage the states to videotape investigative interviews with children.

The Perils of Comparative Law Research

This article is part of a festschrift in honor of Michele Taruffo’s remarkable career, and the astonishing erudition reflected in his wide ranging and significant corpus. One criticism is advanced, to-wit that he has too readily accepted as true the persistent rhetoric to the effect that the American adversarial system does not pursue accuracy in adjudication and is dominated by a sporting model in which the stronger and smarter wins regardless of truth and that Continental legal systems are much more geared toward truth determination. This rhetoric is examined and found to rest on striking mischaracterizations of both approaches to litigation. A more accurate, although quite general, description of both approaches is provided that suggests the rhetoric has it exactly backwards. Suggestive data concerning American and Continental legal systems are presented that directly conflict with the rhetoric. In addition, the obvious prediction is that accurate and efficient legal systems should lead to economic growth and innovation. Some suggestive data is presented, which shows that since 1980 the United States has dominated France, Germany, Spain, and Italy in both regards, tending to disconfirm the comparative effectiveness of the European legal systems. Compounding variables are mentioned, and hence the title, “The Perils of Comparative Law Research.”

Review of the Merits in Class Action Certification

In Eisen v. Carlisle & Jacquelin, the Supreme Court declared that federal courts may not conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. This proscription - sometimes known as the Eisen rule - has become a pillar of class action practice, both under Federal Rule of Civil Procedure 23 and under state-court class action procedures. The rule can have a crucial influence on whether a case is certified as a class action - and, given the importance of certification, on the success or failure of the litigation. This Article analyzes the proper scope of a court's inquiry into merits issues when ruling on motions to certify a class. Part I of the Article distinguishes three approaches to this question: strong-form rules that prohibit inquiries into the merits and require the court to accept as true the well-pleaded allegations in the complaint; weak-form rules that permit reasonable inquiries into the merits as relevant to certification and usually place burdens of production and persuasion on the plaintiff; and super-weak rules which permit or require the court to investigate the class's chances of success in the litigation and place burdens of production and persuasion on the plaintiff. Parts II-VI compare these rules with respect to the values of fidelity to law, accuracy in adjudication, fairness in judgments, fairness in settlements, and judicial economy. Part VII argues that weak-form rules are superior to the alternative approaches.

Economic Analysis of Litigation and the Legal Process

This paper contains the chapters on litigation and the legal process from a general, forthcoming book, Foundations of Economic Analysis of Law (Harvard University Press, 2003). In chapter 17, I consider the basic theory of litigation. Here I describe the three phases of litigation: its initiation through suit, the determination of whether the parties will settle their case or proceed to trial, and, if trial results, the trial expenditures. I also analyze the social desirability of their decisions, a major theme being that the private incentives to litigate may diverge from what is socially desirable. In chapter 18, I extend the basic theory of litigation, examining among other issues the bringing of negative value suits, shifting of legal fees to losers at trial, lawyer-client fee arrangements, and the influence of insurers on litigation. Then, in chapter 19, I discuss several general aspects of the legal process not considered in the basic theory and its extensions, including private systems of adjudication, the value of accuracy in adjudication, the appeals process, and the function of legal advice.

The Value of Accuracy in Adjudication: An Economic Analysis

The Value of Accuracy in Adjudication: An Economic Analysis

Suing Solely to Extract a Settlement Offer

Suing Solely to Extract a Settlement Offer

Enhancing and Restraining Accuracy in Adjudication

Enhancing and Restraining Accuracy in Adjudication

Suit, Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs

Suit, Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs