This Article uses both impressionistic conjecture about litigation and formal litigation theory to develop and test hypotheses about factors affecting outcomes in civil rights and prisoner litigation. It examines data from nearly all federal § 1983 cases, title VII employment discrimination cases, and prisoner cases tried between 1978 and 1985 for which the Administrative Office of United States Courts reported an outcome. The Article explores four topics: success rates at trial, examined by category of case; differences in case outcomes across geographical regions; differences in success rates between cases tried by judges and those tried before juries; and differences in outcomes between litigation involving the federal government and suits in which the federal government is not a party.

Plainly, interested observers of the system have radically different views of litigation reality. This article explores why this might be so. For example, why is it that we cannot identify a civil rights explosion when judges and others perceive one? How can a Supreme Court Justice announce a geometric increase in civil rights litigation after enactment of a fee-shifting statute at a time when there was little support for even arithmetic growth? Why is it that some observers suspect that constitutional tort litigation is highly successful when, by most tangible measures, it is one of the less successful classes of federal litigation?

The paper first establishes that the Obama administration’s conception of empathy is clear, reasonable, and workable, but reviews the political considerations that seem to have stymied overtly embracing empathy as a consideration. The paper then shows that the role empathy might play for a particular justice once on the Court is uncertain, suggesting that perhaps empathy should not be the leading consideration advanced by the president in choosing a nominee. Overall, this paper reveals the arguments for why empathy is a meaningful and admirable quality and should remain a consideration. The paper also shows that for both policy and pragmatic political reasons empathy should probably not occupy the central public role initially insinuated by President Obama in the nomination of Sonia Sotomayor. In order to structure the argument the paper culls the nomination and confirmation records and testimonies of four current Justices purportedly nominated and confirmed to the Court because of the unique perspective they would bring as Justices: Clarence Thomas, appointed by George H. W. Bush; Ruth Bader Ginsburg, appointed by Bill Clinton; and Sonia Sotomayor and Elena Kagan, both nominees of Barack Obama and by default arguably symbolic of his empathy standard.

This paper was initially written for the course “Congress, the Constitution, and the Supreme Court” at University of Pennsylvania Law School while the author was a visiting student at Penn. The course was taught by former U.S. Senator Arlen Specter and former General Counsel to Senator Specter, Matthew Wiener. The views in the paper are the author’s own.

Sound policymaking requires information about how the legal system operates. Critical information about its past operation often is not available in published texts, opinions, or routinely maintained databases. This article illustrates what should be obvious-that archival sources can and should inform policymaking. This exercise may be necessary or appropriate because policymakers too often ignore available information and neglect the historical record. Neglecting the historical legal record not only deprives policymakers of useful information. Information vacuums, like natural vacuums, will be filled. Absent reliable information, special interest groups with little incentive to accurately describe the legal system's operation will fill the vacuum with self-serving information and analysis.

Part II of this article discusses long-term patterns in three areas of recent policy discussion: tort awards, trial rates, and class actions. Claims of ever-increasing awards persist, both for punitive and compensatory damages. Without access to long-term data about trial-level awards, it is impossible to know how awards have changed. Two data sets illustrate the importance of archival information in describing the long-term trends in awards. The data supply no evidence of a broad-based, real increase in tort awards. The long-term decline in trial rates needs to be assessed using historical data about the procedural stages of case disposition. Historical information is least available about class action activity. Recent analysis by researchers at the Federal Judicial Center shows that analysis of case records can illuminate modem class action discussions. Little evidence yet exists that state and federal courts process class certification significantly differently.

Part III explores the uphill struggle to allow historical legal data to tell their story. The results relating to damages awards and class actions contradict the public relations efforts and empirical studies funded by groups with policy agendas. These groups engage in disinformation campaigns that distract from empirical realities. Accurate historical information about legal cases supplies the raw data needed for valid empirical description. Disinterested analysis of the information must be promoted to assure that policymaking is not captured by the policy agendas of well-funded special interest groups.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty now damaging EMU prospects. That is the matter of how best to defend, legally speaking, continuity of contract in the event of some basic change in the current Euro regime.

The hope is that sizing up and breaking down this question into its constituent parts might accomplish at least three related aims. One is to render the hypothetical problems raised by the question more tractable than they would otherwise be. Another is to facilitate the development of provisional plans of approach to such problems in the event they should present themselves. Finally, yet another is to afford confidence to the markets by enabling contingency planning of the sort just suggested, thereby lessening the likelihood of self-fulfilling ‘run’-like activity on European debt instruments.

When given, incentive awards constituted, on average, 0.16 percent of the class recovery, with a median of 0.02 percent. Award levels varied by case category. Employment discrimination cases had large incentive awards compared to other categories. Award size was associated with the case's costs and expenses, the class recovery amount, the median recovery per class member, the case's risk, and the presence of objection to the settlement. Awards exhibited a scaling effect; their percentage of the class recovery decreased as the class recovery increased.

We examine the data in light of four hypotheses about the function of incentive awards: (1) reimbursing class representatives for nonpecuniary litigation costs; (2) rewarding class representatives for superior service; (3) facilitating self- interested behavior by class counsel; and (4) achieving proportionality between awards and other outcomes in the case. We find support for the reimbursement and proportionality hypotheses and weaker support for the attorney self-interest and reward-for-service hypotheses. We find little evidence of systematic abuse in incentive awards. Given the modest frequency and size of awards, and their possible benefits, case-by-case adjudication may be more appropriate than fixed legislative or judicial rules banning awards.

We find that the level of client recovery is by far the most important determinant of the attorney fee amount. A scaling effect exists, with fees constituting a lower percent of the client’s recovery as the client’s recovery increases. The relation between fees and recovery is remarkably regular, and can be observed both in cases in which no fee-shifting statute applies, and in cases in which the plaintiff had a right to seek reimbursement under a fee-shifting statute. The presence of high risk is associated with higher fees, as is the presence of the case in federal rather than state court. Contrary to popular belief, we find no solid evidence that attorney fees increased during the period studied.

In investigating the influence of racial bias, commentators (ourselves included) have focused on prosecutors and jurors, generally neglecting the question of whether bias affects the representation defense counsel provides his or her client. What do we know about the capital defense lawyer's racial attitudes?

Nothing. Virtually nothing is known about the racial attitudes of lawyers in general, let alone defense lawyers or capital defense lawyers specifically. The demographic characteristics, compensation patterns, career paths, and occasionally the daily activities of lawyers are studied, but researchers to date have expressed little interest in their attitudes, with the exception of attitudes concerning job satisfaction.

In contrast, quite a lot is known about the racial attitudes of the general population. The prevalence of hostile, overt racism has been declining at least since the 1960s. For the most part, however, old-fashioned, "Bull Connor-style" racism has not been replaced with colorblindness but with subtler manifestations of racial bias. Some social psychologists have labeled this newer racism "aversive racis[m]," documenting the prevalence of subjects who subscribe to a formal norm of equality, but desire to keep their distance from other racial groups, and often covertly disparage those groups. Cognitive psychologists have focused more on stereotypes, observing how thinking and judgment may be altered by stereotypes that the subject would not endorse, and often consciously rejects.

Both of these (related) conceptions of modern racism raise the troubling possibility that defense counsel, who are charged with undivided loyalty to their clients, and presumed to serve as a shield against racial bias on the part of other criminal justice system actors, may in fact experience both compromised loyalty and judgment when they serve African-American or Latino clients. On the other hand, perhaps capital defense attorneys, either by self-selection or by training, are different than the rest of the population in this regard. This Article describes preliminary data suggesting that they are not.

This Article tests these beliefs by studying the mass of tried cases. It analyzes damages awards and plaintiff win rates at trials in both federal and state courts for tort cases, products liability cases, and employment cases. Although award levels and win rates differ significantly across geographic areas, these differences often do not uniformly reflect the folk wisdom about demographic influences. In federal court trials, we find no robust evidence that award levels in cases won by plaintiffs correlate with population demographics in the expected direction. Indeed, one persistent result is a negative relation between award levels and black population percentages.

With respect to plaintiff win rates in federal trials, we again find no robust evidence that local demographics help explain trial outcomes in the mass of cases. We do, however, find a significant correlation between larger black population percentages and the likelihood of a plaintiff trial win in urban job discrimination, products liability, and tort cases.

In state court trials, we again find no robust evidence (at traditional levels of statistical significance) that race, income, or urbanization substantially help explain award levels. Poverty rates do have marginally significant correlations with increased award levels in tort and employment cases. And plaintiff win rates do correlate positively with poverty rates in state court tort cases, but this effect does not emerge in products liability or employment cases. Overall, we find little evidence of consistent demographic effects on trial outcomes.

Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. Moreover, the handful of empirical analyses that do exist rely on data gathered in simulation studies. Although valuable contributions have emerged from these experimental studies, such studies have often-rehearsed limitations that stem primarily from a lack of verisimilitude. To begin to complement the experimental findings with real-case data, we analyze the influence of VIE based on interviews with over two-hundred jurors who sat on capital trials in South Carolina between 1985 and 2001.

We pursue three VIE-related topics. First, we describe the VIE introduced at sentencing trials, using a subset of the interviews that posed questions directly focusing on VIE. Second, we analyze a factor closely related to, and influenced by, VIE—a factor we refer to as victim admirability. We find evidence of a strong correlation between victim admirability and VIE use. Victim admirability substantially increases with the increased use and refinement of VIE. In addition, we find some correlation between victim admirability and jurors' perceived seriousness of the crime.

Both increased victim admirability and increased crime seriousness might be expected to push jurors toward imposing death sentences. Our third topic therefore focuses on sentencing outcomes. We study the relation between capital sentencing outcomes and VIE itself, as well as the relation between victim admirability—found to be influenced by VIE—and capital sentencing outcomes. We find no significant relation between increased victim admirability and juror capital sentencing votes, nor do we find a significant relation between the introduction of VIE and sentencing outcomes.

What makes jurors think a defendant is remorseful? Among other things, we find that the more jurors think that the crime is coldblooded, calculated, and depraved and that the defendant is dangerous, the less likely they are to think the defendant is remorseful. Conversely, the less they think the defendant is responsible for the crime, the more likely they are to believe he is remorseful. The defendant's demeanor during trial also influences jurors' beliefs about remorse.

As for the background and the attitudes of the jurors themselves, we find that jurors with strong views in favor of the death penalty are less likely to think the defendant is remorseful. We also find that while racial factors generally do not influence jurors' beliefs about the defendant's remorse, white women are least likely to believe the defendant is remorseful.

Does a defendant's remorse or lack of remorse affect the sentence he receives? The general answer is yes. The more precise answer is sometimes. Remorse benefits some defendants, but not others. In multivariate models of sentencing outcomes that account for the perceived "viciousness" of the crime, we find that jurors' belief in the defendant's remorse noticeably improves the predictive value of the models--provided jurors do not think the crime is extremely vicious. When jurors do think the crime is extremely vicious, their belief in the defendant's remorse appears to have little influence on the sentence he receives.