Alexandra D. Lahav (Cornell Law School), Peter Siegelman (University of Connecticut - School of Law), Charlotte Alexander (Georgia Institute of Technology - Scheller College of Business), & Nathan Dahlberg (Georgia State University) have posted No Adjudication on SSRN. Here is the abstract:
Using the complete record of all Federal civil docket sheets for a two-year period, we find that most cases (60%) are resolved with only a Complaint or Complaint and an Answer. 10% exit the system, mostly by remand or transfer. Only 30% include a filing of a dispositive motion such as a motion to dismiss or motion for summary judgment, or, in the rare case, trial. The majority of cases resolved at the Complaint or Answer stage are resolved quickly (often within 90 days) and with few docket entries (often fewer than 12). Thus the title of this paper.
Our findings require a reevaluation of the normative theories of civil litigation. The dominant theory of civil litigation is that motion practice moves cases forward to fair resolution, but this theory is not borne out by the data because there is so little motion practice. To evaluate how the system of so little adjudication is working, we document the rate of resolution by settlement and the different behavior of cases involving unrepresented parties. Our findings raise concerns that the lack of motion practice may lead to inaccurate results on a systemic level. Because the data do not bear out the dominant theory, it is time to either develop a new theory that justifies the system we have, or consider ways to improve the system of civil litigation in light of normative commitments to the just resolution of lawsuits.
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