Quo Vadis? From the Schoolyard to the Courtroom

Existing theories exploring how companies interact with the law stop short of unveiling whether and why companies can differentially pursue, interact with, and benefit from a particular legal environment. We theorize that companies can use social structures—shared educational and professional affiliations—between lawyers and judges to strategically pursue specific legal jurisdictions, influence judges’ discretion, and ultimately reap different legal outcomes from the same legal environment. Using data on such affiliations between lawyers and federal judges, we examine companies’ choice of U.S. federal district courts and their legal outcomes in patent infringement litigation from 1990 to 2013. Our results reveal that companies strategically pursue courts in which their lawyers have past educational or professional affiliations with the courts’ judges. If a desired judge is assigned to the case, a company leverages its lawyers’ social structures to tailor any legal communication to match that judge’s style. While such behavior results in a higher likelihood of winning a lawsuit, it also creates an inherent risk. In stacking their legal teams with lawyers who have connections to judges, companies often shortchange the human capital—lawyers’ skillsets—required to win a case, which adversely affects legal outcomes if the desired judge is not assigned to the case.

There is no impending crisis: a look beyond the Sixth Circuit’s decision to permit Section 1782 discovery for use in international commercial arbitration

There are few topics in international arbitration that engender more intense sentiments amongst practitioners than discovery. While debate endures over the applicability, suitability and extent of discovery within this autonomous system of justice, it is impossible to escape the reality that national laws and courts will and do have a role—often a significant one—to play in international arbitration proceedings, most notably to assist in the arbitral process. One US federal law in particular, 28 USC § 1782, has become increasingly relevant in recent years, as more parties attempt to harness its potency in facilitating discovery of evidence in aid of foreign arbitration. The application of the statute to foreign or international arbitral tribunals, however, is a murky question, and not one on which all US federal courts agree. Most recently, the US Court of Appeals for the Sixth Circuit broke with some of its sister circuits in finding that discovery under section 1782 is permissible for use in foreign or international commercial arbitrations. While many have denounced the decision as contrary to, or arguably likely to render less effective, principles or aspects of international arbitration deemed sacrosanct by arbitration enthusiasts, the effect of the Sixth Circuit’s decision on the broader practice of arbitration must not be overstated. Practitioners, tribunals, and the US federal district courts in particular already have ample means at their disposal to thwart section 1782’s potentially broad reach and effectiveness in creating inequities or turmoil in arbitration proceedings. Channeled effectively, these tools and proper considerations of discretion can ensure an appropriate balance between the need for critical evidence and the prevention of drawn-out, inequitable, and inefficient arbitral proceedings.

(Un)Changing Rates of Pro Se Litigation in Federal Court

There is widespread concern among scholars, court actors, and policy makers that the number of pro se litigants is increasing. However, we have little empirical evidence of the scope of pro se litigation, especially in the federal court system. Using data from the Administrative Office of the U.S. Courts on all civil case filings since 1999, we investigate the prevalence and rate of pro se litigation in federal district courts. We find no evidence of a dramatic rise in pro se litigation, but we document substantial variation in rates of pro se litigation by type of case and circuit of filing. The results have implications for our understanding of self-representation and for the development of policies addressing access to civil justice.

The Immediate Consequences of Federal Pretrial Detention

Unlike the cash-bail regimes that are prevalent in state courts, federal courts rarely use money bail as a condition of pretrial release. Nonetheless, this article presents evidence that pretrial release influences case outcomes for federal defendants. Using case data spanning 71 federal district courts, the article suggests that pretrial release reduces a defendant’s sentence and increases the probability that they will receive a sentence below the recommended sentencing range. Pretrial release also appears to lessen the probability that a defendant will receive a mandatory minimum sentence when one is charged. The analysis exploits variation in magistrate judges’ propensities to release defendants pending trial, which allows magistrate judge leniency to serve as an instrumental variable for pretrial release. The article also provides suggestive evidence that pretrial release affects case outcomes through two channels: first, by giving defendants the opportunity to present mitigating evidence at sentencing and second, by making it easier for defendants to earn a sentencing reduction by providing assistance to the government.

Judges on Demand: The Cognitive Case for Cameras in the Courtroom

In 2011, the federal district courts began a pilot program to record and post full-length videos from selected civil proceedings. The program was deliberately structured to preserve the quality and integrity of ongoing adjudication. Three-and-a-half years in, the program has revealed an equally important, and unanticipated, benefit: improving the quality and integrity of future adjudication. This essay describes this second benefit and explains why the pilot program should be extended beyond its scheduled sunset in July 2015.