Mass Tort multidistrict litigation (MDL) cases have gradually become a dominant component of the U.S. federal civil caseload. At the same time, plaintiffs’ lawyers who specialize Mass Tort MDLs have spent millions of dollars on TV advertisements seeking clients. What is the effect of Mass Tort TV advertisements on MDL filings? We use proprietary data on the universe of mass tort TV advertisements since 2012, at the media market level, and we match it to Federal Judicial Center data on all filings that are transferred to an MDL. Since spending on TV advertisements is endogenous, we instrument for Mass Tort advertisements using political advertisements. We find that Mass Tort advertisements have a sizable effect on MDL filings.

When faced with financial uncertainty, rational agents have incentives to take steps ex ante to reduce the probability (self-protection) or size (self-insurance) of a loss. However, in the case of liability risk, especially physician responses to malpractice risk, most empirical analyses have focused exclusively on measuring self-protection. This paper studies whether physicians invest in self-insurance by exploring how they respond to policies that allow them to lower the financial cost of malpractice liability. Specifically, we test whether physicians exploit provisions of bankruptcy laws and adjust the value of their home purchases to protect assets from liability claims exceeding their malpractice policy limits. We find that in states with unlimited “homestead” exceptions—provisions of state law that protect home equity when individuals file for bankruptcy—physicians invest 13% more in the value of their homes compared to what they would have invested in the absence of an exemption, whereas no such effect is true for other professionals of similar family income, family size, demographics, and city of residence. Additionally, the response of physicians to unlimited homestead exemptions is larger in areas with higher liability risk, where physicians would have greater incentive to insure against financial risks. Our findings suggest that physicians take financially costly decisions to protect themselves from uninsured malpractice risk, implying more generally that individuals self-insure against liability risk when insurance markets are incomplete.

Administrative law judges' (ALJs') relative lack of formal independence has engendered worries that they give agencies a home-court advantage. We examine the 2010 Dodd-Frank Act, which allowed the Securities and Exchange Commission (SEC) to move cases into its administrative court. The problem with this policy experiment is that the SEC retains the discretion to bring cases in federal court, so it is impossible to identify which cases the policy treats. We propose a difference-in-differences design, using natural-language-processing methods to create control and treatment groups. We construct propensity scores using random-forest methods. After binning cases into likely or not likely to be affected by the courts' expansion, the difference-in-differences estimation indicates that the expansion made defendants 30 percentage points more likely to settle and 36 percentage points more likely to receive a nonmonetary penalty. There is a 24-percentage-point reduction in the likelihood of a monetary penalty.

Discovery is the formal process of exchanging information under the supervision of the courts. Since managing discovery is costly, courts have implemented case management techniques to reduce motion practice in discovery. This study examines whether case management techniques can reduce the likelihood of a discovery dispute. We attempt to untangle the impact of specific judges from the use of a particular case management technique. We focus on the use of informal discovery conferences (IDCs) in which parties meet with the judge before filing a motion to compel. The problem with simply testing whether IDCs reduce the number of discovery motions is that the use of an IDC is likely endogenous. Our solution to this endogeneity is to use the random assignment of judges. Since some judges have a higher propensity to use IDCs and some courts have begun requiring them, we have two sources of policy variation. Using this estimation strategy, we find that IDCs reduce the number and presence of discovery motions. (JEL K13, K40, K41)

The value of lawyers to their clients is notoriously difficult to estimate due to endogeneity. We utilize modifications to the collateral source (CS) rule that require reducing trial awards by the amount of payments from first-party insurance as an instrument for hiring a lawyer. The problem with our instrument is that modifications to the CS rule have a direct effect on recovery, and hence violate the exogeneity requirement for a valid instrument. We develop a new identification and estimation method that uses CS rule changes as an invalid instrument and bounds the impact of lawyers. We find that the upper and lower bounds of our estimated impact are lower than estimates that do not correct for endogeneity. Our estimates of the impact of lawyers on total payment are uniformly negative. The upper bound of the effect of hiring a lawyer on total payment received is -$26,000 after fees in our preferred specification, which suggests that even in the most optimistic scenario lawyers appear to reduce total recovery.

The opioid epidemic has claimed the lives of more than 450,000 Americans since 1999. Amid claims that the pharmaceutical industry used misleading tactics to downplay the known harms of prescription opioids, more than 2,000 plaintiffs have joined the largest civil trial in U.S. history: National Prescription Opiate Litigation (MDL 2804). In this symposium, experts discuss the opioid litigation and its effects on the future of mass litigation.

We show that data on DNA exonerations can be informative about racial differences in wrongful-conviction rates under some assumptions regarding the DNA-exoneration process. We argue that, with respect to rape cases, the observed data and the plausibility of the required assumptions combine to strongly suggest that the wrongful-conviction rate is significantly higher among black convicts than white convicts. By contrast, we argue that the ability of data on DNA exonerations to reveal information about racial differences in wrongful-conviction rates for murder is much more limited.

In a complex economy, production is vertical and crosses jurisdictional lines. Goods are often produced by an upstream national or global firm and improved or distributed by local firms downstream. In this context, heightened products liability may have unintended consequences on product sales and consumer safety. Conventional wisdom holds that an increase in tort liability on the upstream firm will cause that firm to (weakly) increase investment in safety or disclosure. However, this may fail in the real-world, where upstream firms operate in many jurisdictions, so that the actions of a single jurisdiction may not be significant enough to influence upstream firm behavior. Even worse, if liability is shared between upstream and downstream firms, higher upstream liability may mechanically decrease liability of the downstream distributor and encourage more reckless behavior by the downstream firm. In this manner, higher upstream liability may perversely increase the sales of a risky good. We demonstrate this phenomenon in the context of the pharmaceutical market. We show that higher products liability on upstream pharmaceutical manufacturers reduces the liability faced by downstream doctors, who respond by prescribing more drugs than before.

Journal of Empirical Legal StudiesVolume 17, Issue 4 p. 644-645 Foreword Foreword: The 2019 Conference on Empirical Legal Studies David Bjerk, David Bjerk 2019 Co-President of the Society for Empirical Legal StudiesSearch for more papers by this authorEric Helland, Corresponding Author Eric Helland eric.helland@cmc.edu William F. Podlich Professor of Economics, George R. Roberts Fellow, Claremont McKenna College, Department of Economics, 500 E. 9th Street, Claremont, CA, 91711 Address correspondence to Eric A. Helland, William F. Podlich Professor of Economics, George R. Roberts Fellow, Claremont McKenna College, Department of Economics, 500 E. 9th Street, Claremont, CA 91711; Email: eric.helland@cmc.edu.Search for more papers by this authorDan Krauss, Dan Krauss 2019 Co-President of the Society for Empirical Legal StudiesSearch for more papers by this author David Bjerk, David Bjerk 2019 Co-President of the Society for Empirical Legal StudiesSearch for more papers by this authorEric Helland, Corresponding Author Eric Helland eric.helland@cmc.edu William F. Podlich Professor of Economics, George R. Roberts Fellow, Claremont McKenna College, Department of Economics, 500 E. 9th Street, Claremont, CA, 91711 Address correspondence to Eric A. Helland, William F. Podlich Professor of Economics, George R. Roberts Fellow, Claremont McKenna College, Department of Economics, 500 E. 9th Street, Claremont, CA 91711; Email: eric.helland@cmc.edu.Search for more papers by this authorDan Krauss, Dan Krauss 2019 Co-President of the Society for Empirical Legal StudiesSearch for more papers by this author First published: 03 November 2020 https://doi.org/10.1111/jels.12273Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat No abstract is available for this article. Volume17, Issue4December 2020Pages 644-645 RelatedInformation

I provide a test of the legal realist theory of judicial behavior, which posits that judges' ideology impacts their legal decisions but that the law constrains the judges' ability to exercise those preferences. Two competing theories, legal skepticism and formalism, posit that the law either provides a minimal constraint on judges' preferences or allows only minimal discretion by judges. The difficulty in testing these theories is a lack of data on the legal constraints judges face. I examine Daubert/Rule 702 rulings to exclude scientific testimony by plaintiffs' experts in a series of lawsuits. Because I have multiple observations across experts, I can give each expert a fixed effect, which removes any constant features of the expert's testimony. Even after controlling for law, I find robust evidence that ideology plays an important role in the decision to grant a motion to exclude a witness.

ABSTRACTIn many states, auto insurers rather than health insurers pay for a substantial fraction of the medical care following auto crashes. We examine whether payer identity affects the care received by auto injury patients. A 2003 Colorado reform shifted a large fraction of auto injury patients from coverage through auto insurers to the traditional health insurance system. Despite negligible changes in auto injury characteristics during this period, treatment supply increased following the reform. Procedure use rose by 5–10 percent and billed charges rose by 5 percent. These changes reflect an increase in resources devoted to treatment, yet do not improve mortality.

We explore why prices in some sectors are increasing dramatically even as economy-wide technology and productivity improves. Education and healthcare are notable examples of sectors seemingly stricken by constantly rising prices. At the same time, home appliances and telecommunications have become much cheaper. This piece examines and rejects explanations such as bloat and administrative costs and focuses attention on rising labor costs driven by productivity improvements in progressive sectors of the economy, an explanation known as Baumol's Cost Disease.

Third-party liens have increasingly become an issue in resolving mass litigation events. This is potentially problematic if liens become sufficiently burdensome or costly that potential litigants do not pursue cases. This paper examines the different types of health care liens and trends in prevalence, as well as how liens have changed the landscape of claim resolution.

Under the Hatch-Waxman Act, generic drug makers can challenge a manufacturer's patents and if successful can market a generic alternative before the manufacturer's patents expire. Proponents of this process, known as a Paragraph IV challenge, argue that it is an important check on "evergreening," whereby manufacturers can delay generic entry by filing sequential patents. Proponents claim these sequential patents are weaker than the initial patents and serve to preserve monopoly rents. Opponents of the Paragraph IV system argue that it encourages generic manufacturers to target drugs which are lucrative but may not have particularly weak patents. The system, they claim, shortens exclusivity periods and reduces incentives for innovation. Testing the importance of patent quality in determining the likelihood of a Paragraph IV challenge requires measuring patent quality. In this study, we utilize a machine-learning and natural language measure of patent quality. Using this measure, based on the number of new words contained in the patent relative to the patent corpus, we find that patent quality is an important deterrent to Paragraph IV challenges even when controlling for sales.

The selection effects in litigation data are one of the most daunting problems facing legal researchers. We develop a bounds approach to dealing with multiple levels of selection. We build on work by Helland and Yoon on the English rule's effect on litigation outcomes. The English rule prescribes that the loser of a lawsuit pays the winner's litigation costs. When we take selection due to settlement and to drops into account, the bounds analysis suggests that some conclusions in the works of Hughes and Snyder (1990 and 1995)) may not be robust to the most extreme forms of selection.

We show that under arguably plausible assumptions regarding the DNA exoneration process, in expectation, the ratio of DNA exoneration rates across races among defendants convicted for the same crime in the same state provides an upper bound on the ratio of wrongful conviction rates across races among these defendants. Our estimates of this statistic reveal that among those sentenced to incarceration for rape in the United States between 1983 and 1997, the wrongful conviction rate among white defendants was less than two-thirds of what it was for black defendants. Our results with respect to murder are inconclusive.

IntroductionSince 1957, most contingent fee lawyers in New York City have been required to file a "closing statement" with the clerk of the appellate division when a case is resolved, whether the case is resolved by settlement, judgment, or abandonment by the client. The closing statement includes the amount of any settlement or judgment, the amount paid to the lawyer, and an itemization of the lawyer's expenses. Because they provide information on issues not generally available elsewhere, closing statements provide a unique window into contingent fee litigation. This Article aims to provide a preliminary analysis of the data in the closing statements.in the next part we provide information on the origin and content of the data. In Part II we provide evidence on rates at which claims are abandoned, settled, or adjudicated. We find that the settlement rate in the New York data is significantly higher than previous estimates. In Part III we provide information on plaintiff recovery rates. We find that once we account for the riskiness of going to trial, there is relatively little difference between settlement amounts and amounts received in adjudication. In Part IV we provide evidence on the size and composition of expenses and fees. In Part V we present evidence on the demographic distribution of tort claims. Specifically we find that the number of claims is negatively correlated with income. The final Part concludes.I.Retainer and Closing StatementsIn the 1920s, the bar and bench in New York City became increasingly concerned about the conduct of contingent fee lawyers. In 1928, the bar associations for New York City, Manhattan, and the Bronx petitioned the Appellate Division of the First Judicial Department of the New York Supreme Court, which had supervisory powers over state courts in Manhattan and the Bronx, to conduct an investigation. The Appellate Division ordered Justice Wasservogel to produce a report.Judge Wasservogel held hearings, and, in 1928, issued a report that concluded:The evidence adduced before me bears out the truth of the allegations contained in the petition of the three bar associations, to the effect that there exists in this Judicial Department a practice commonly known as "ambulance chasing."Personal injury cases have,in the main, come into the hands of relatively few lawyers, some of whom have conducted their practice purely as a business, to the detriment of the public and the profession.1To "prevent a recurrence of the improper practices by which attorneys secure retainers from injured persons," the report recommended that attorneys be required to file "a copy of the retainer by which the attorney for the plaintiff was engaged, and also an affidavit by such attorney stating that the case was not solicited directly or indirectly, and setting forth how the retainer was obtained."2 The report also recommended that all settlements be approved by the court.3In 1929, the First Department implemented some of the recommendations of the report. In particular, they required plaintiffs' lawyers to file "retainer statements" with the court within ten days of signing the contingent fee agreements. The retainer statement sets out "the terms of compensation."4 Regulations also required lawyers to mail their clients a written statement accounting for any judgment or settlement within ten days of receiving the money.5 If the lawyer was unable to find the client, the lawyer was required to send the accounting to the court, but otherwise the accounting was sent only to the client.6In 1955, Judge Wasservogel, then retired from his judgeship and back in private practice, was again asked to produce a report on contingent fee lawyers, this time with a charge to consider capping contingent fees. This report was commissioned not only by the First Department (Manhattan and the Bronx), but also by the Second Department, which covers the rest of New York City as well as Long Island and five counties immediately north of New York City (Duchess, Orange, Putnam, Rockland, and Westchester). …