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Henry Allen Mark Professor of Law
Working Papers
"Plaintiphobia in State Courts Redux? An Empirical Study of State Court Trials on Appeal," Cornell Legal Studies Research Paper No. 14-02 (2014).
"Four Decades of Federal Civil Rights Litigation," Cornell Legal Studies Research Paper No. 14-01 (2014).
"Why Do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates,"  American Law & Economic Review (forthcoming) (with H. Farber).
"When Courts Determine Fees in a System with a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendents," (with Talia Fisher and Issachar Rosen-Zvi) Cornell Legal Studies Research Paper No. 1308 (2013).
"Assuring Adequate Deterrence in Tort: A Public Good Experiment," ( with Christoph Engel ) Cornell Legal Studies Research Paper No. 12-27 (2012).
"The Empirical Effects of Tort Reform," Cornell Legal Studies Research Paper, No.12-26 (2012).(Research Handbook on the Economics of Torts, forthcoming)
"Case Selection and Dissent in Courts of Last Resort: An Empirical Study of the Isreal Supreme Court" (with Talia Fisher and Issachar Rosen-ZVI) Cornell Legal Studies Research Paper No. 11-23 (2011).
"The Death Penalty in Delaware: An Empirical Study" (With John H. Blume, Sherri Lynn Johnson, and Valerie P. Hans) Cornell Legal Studies Research Paper No. 08-025 (Aug 6, 2008) Available at SSRN.
Contributions to Books
"Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts" (with Charlotte Lanvers) in Empirical Studies of Judicial Systems 2008 (Institutum Iurisprudentiae, Academia Sinica; Taipei, Taiwan, Republic of China; Kuo-Chang Huang, ed., 2009) pp1-34.
"The Relation Between Punitive and Compensatory Awards: Combining Extreme Data with the Mass of Awards" (with Valerie P. Hans and Martin T. Wells), in Civil Juries and Civil Justice (New York: Springer, 2008).
"Should We Abolish Chapter 11? The Evidence From Japan" (with Shoichi Tagashira), in Current Developments in International and Comparative Corporate Insolvency Law Chapter 9 (Oxford: Clarendon Press, 1994, Jacob S. Ziegel ed.), also in Corporate Bankruptcy: Economic and Legal Perspectives (Cambridge Univ Press 1996, J. Bhandari and L Weiss eds.), and in Empirical Studies on Wagi Proceeding pp329-359 (Aoyama ed., Commercial Law Centre, Inc.) (in Japanese).
Articles
"The Delaware Death Penalty: An Empirical Study," (with Sheri Lynn Johnson, John H. Blume, Valerie P. Hans, and Martin T. Wells) 97 Iowa Law Review 1925 (2012).
"Litigation as a Measure of Well-Being," (with Nick Robinson and Sital Kalantry) 62 DePaul Law Review 247 (2012-2013).
"The English vs. the American Rule on Attorney Fees: An Empirical Study of Public Company Contracts," (with G. Miller) 98 Cornell Law Review 327 (2013).
"Does the Judge Matter? Exploiting Random Assignments on a Court of Last Resort to Assess Judge & Case Selection Effects," (with Talia Fisher & Issachar Rosen-Zvi) 9 Journal of  Empirical Legal Research 246 (2012). Cornell Legal Studies Research Paper No. 11-33.
"Actual Versus Perceived Performance of Judges," ( with Talia Fisher and Issi Rosen-Zvi ) 35 Seattle University Law Rview 695 (2012) Cornell Legal Studies Research Paper No. 12-23 (2012).
" The Effect of Contract Regulation on Franchising," (by Jonathan Klick, Bruce H. Kobayashi, and Larry E. Ribstein) (comment by Theodore Eisenberg 54-57 and Andreas Roider 58 - 61) 168  Journal of Institutional and Theoretical Economics 38 ( 2012).
"The Origins, Nature, and Promise of Empirical Legal Studies and A Response to Concerns", Illinois Law Review (forthcoming 2011) ; also translated into Hebrew in Tel Aviv University Law Review.
"The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary—An Empirical Lesson from Taiwan"(with K.C. Huang), International Review of Law & Economics (forthcoming 2011).
"Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court?" (with Michael Heise), 8 Journal of Empirical Legal Studies # 2 (2011).  
"The Predictability of Juries" (with V. Hans), 60 DePaul Law Review 375 (2011).
"Isreal's Supreme Court Appellate Jurisdiction: An Empirical Study," (with Talia Fisher & Issi Rosen-Zvi) 96 Cornell Law Review 693 (2011).
"Attorney Fees and Expenses in Class Action Settlements: 1993-2008" (with Geoffrey P. Miller), 7 Journal of Empirical Legal Studies 248-281 (2010).
"Punitive Damages in Securities Arbitration: An Empirical Study," (with Stephen J Choi) 39 Journal of Legal Studies 497 (2010).
"The Decision to Award Punitive Damages: An Empirical Study" (with Michael Heise, Nicole L. Waters and Martin T. Wells), 2 Journal of Legal Analysis 577 (2010).
"The Need for a National Civil Justice Survey of Incidence and Claiming Behavior," 37 Fordham Urban Law Journal 17-36 (2010).
"Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’s Decision in Exxon Shipping Co. v. Baker" (with M. Heise & M. Wells) 166 Journal of Institutional & Theoretical Economics 5-26 (2010).
"U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business," 6 Journal of Empirical Legal Studies 969-1002 (2009).
"Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source" (with G. Miller) 89 Boston University Law Review 1451-1504 (2009).
"The Market for Contracts," (with G. Miller) 30 Cardozo Law Review 2073 (2009).
"Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes" (with Valerie Hans), 94 Cornell Law Review 1353 (2009).
"A New Look at Judicial Impact: Attorneys' Fees in Securities Class Actions After Goldberger v. Integrated Resources, Inc." (with M. Perino and G. Miller) 29 Washington University Journal of Law and Policy 5-35(2009). 
"The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly-Held Companies' Contracts" (with Geoffrey P. Miller), 30 Cardozo Law Review 1475 (2009).
"What is the Settlement Rate and Why Should We Care?" (with Charlotte Lanvers), 6 Journal of Empirical Legal Studies 111 (2009).
"Lipitor and Women: Questionable Advertising and the Implications for FDA Preemption Claims," 35(1) Cornell Law Forum 12 (2009).
"Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal" (with Michael Heise), 38 Journal of Legal Studies 121 (2009).
"Mandatory Arbitration for Customers but not for Peers: A Study of Arbitration Clauses in Consumer and Non-Consumer Contracts" (with G. Miller, and E. Sherwin), 92 Judicature 118 (2008).
"CAFA Judicata: A Tale of Waste and Politics," (with Kevin M. Clermont) 156 University of Pennsylvania Law Review 1553 (2008).
 "Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts," (with Geoffrey P. Miller and Emily Sherwin) 41 University of Michigan Journal of Law Reform 871 (2008); reprinted in 4 Icfai University Journal of Alternative Dispute Resolution 51 (2008).
"Statins and Adverse Cardiovascular Events in Moderate-Risk Females: A Statistical and Legal Analysis With Implications for FDA Preemption Claims," (with Martin T. Wells) 5 Journal of Empirical Legal Studies 507 (2008).
"Do Juries Add Value?: Evidence from an Empirical Study of Jury Trial Waiver Clauses in Large Corporate Contracts" (with Geoffrey Miller), 4 Journal of Empirical Legal Studies 539 (2007). 
"Xenophilia or Xenophobia in American Courts? Before and After 9/11," (with Kevin Clermont) 4 Journal of Empirical Legal Studies 441 (2007).
"The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in the Contracts of Publicly Held Companies," (with Geoffrey P. Miller) 56 DePaul Law Review 335-374 (2007).
"Ex Ante Choice of Law and Forum: An Empirical Analysis of Corporate Merger Agreements" (with Geoffrey Miller), 59 Vanderbilt Law Review 1975-2013 (2006); also published in 49 Corporate Practice Commentator 323 (2007)
"Use it or Pretenders will Abuse It: The Importance of Archival Legal Information 75 UMKC Law Review 1-23 (2006).
"Incentive Awards to Class Action Plaintiffs: An Empirical Study" (with Geoffrey Miller), 53 UCLA Law Review 1303-1351 (2006).
"Assessing the SSRN-Based Law School Rankings," 81 Indiana Law Journal 285-91 (2006).
"The Significant Association Between Punitive and Compensatory Damages in Blockbuster Cases: A Methodological Primer" (with Martin T. Wells), 3 Journal of Empirical Legal Studies 175-95 (2006).
"Juries, Judges, and Punitive Damages: Empirical Analyses Using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data" (with Paula L. Hannaford-Agor, Michael Heise, Neil LaFountain, G. Thomas Munsterman, Brian Ostrom, and Martin T. Wells), 3 Journal of Empirical Legal Studies 263-95 (2006).
"Death Sentence Rates and County Demographics:  An Empirical Study," 90 Cornell Law Review 347-70 (2005).
"Judge-Jury Agreement in Criminal Cases:  A Partial Replication of Kalven and Zeisel's The American Jury" (with Stewart J. Schwab, Paula Hannaford-Agor, Nicole L. Mott, G. Thomas Munsterman, Valerie P. Hans, Martin T. Wells), 2 Journal of Empirical Legal Studies 171-206 (2005). Available at SSRN.
"Attorney Fees in Class Action Settlements: An Empirical Study" (with Geoffrey P. Miller), 1 Journal of Empirical Legal Studies 27-78 (2004).
"How Employment Discrimination Plaintiffs Fare in the Federal Courts of Appeals" (with Kevin M. Clermont and Stewart J. Schwab), 7 Employee Rights and Employment Policy Journal 547-67 (2004).
"Implicit Racial Attitudes of Death Penalty Lawyers" (with Sheri Lynn Johnson), 53 DePaul Law Review 1539 (2004). Also published in Critical Race Realism: Intersections of Psychology, Race, and Law (G. Parks, S. Jones, W. Card eds., 2008).
"The Merciful Capital Juror" (with Stephen P. Garvey), 2 Ohio State Journal of Criminal Law 165-93 (2004).
"The Role of Opt-Outs and Objectors in Class Action Litigation:  Theoretical and Empirical Issues" (with Geoffrey Miller), 57 Vanderbilt Law Review 1529-67 (2004).
"On the Design of Efficient Priority Rules for Secured Creditors: Empirical Evidence from A Change in Law" (with C. Bergstrom & S. Sundgren), 18 European Journal of Law and Economics 273 (2004).
"Was Arthur Andersen Different?  An Empirical Examination of Major Accounting Firm Audits of Large Clients" (with Jonathan R. Macey), 1 Journal of Empirical Legal Studies 263-300 (2004).
"Why Do Empirical Legal Scholarship?" 41 San Diego Law Review 1741-46 (2004).
"Arbitration and Litigation of Employment Claims: An Empirical Comparison" (with Elizabeth Hill), 58 Dispute Resolution Journal 44-55 (2003-2004); full version published in ADR & the Law (20th ed. 2006).
"The Reliability of the Administrative Office of the U.S. Courts Database: An Empirical Analysis" (with Margo Schlanger), 78 Notre Dame Law Review 1455-96 (2003).
"The Government as Litigant: Further Tests of the Case Selection Model" (with Henry Farber), 5 American Law and Economics Review 94-133 (2003).
"Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases" (with Stephen P. Garvey and Martin T. Wells), 88 Cornell Law Review 306-42 (2003).
"Litigation Realities" (with Kevin M. Clermont), 88 Cornell Law Review 119-54 (2002).
"Judge Harry Edwards: A Case in Point!" (with Kevin M. Clermont), 80 Washington University Law Quarterly 1275-89 (2002).
"Juries, Judges, and Punitive Damages: An Empirical Study" (with Neil LaFountain, Brian Ostrom, David Rottman, and Martin T. Wells),  87 Cornell Law Review 743-82 (2002).
"Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments" (with Kevin M. Clermont), 2002 University of Illinois Law Review 947 (2002).
"Reconciling Experimental Incoherence with Real-World Coherence in Punitive Damages" (with Jeffrey J. Rachlinski and Martin T. Wells), 54 Stanford Law Review 1239-71 (2002).
"Secured Debt and the Likelihood of Reorganization" (with Clas Bergström and Stefan Sundgren), 21 International Review of Law and Economics 359-72 (2002).
"Trial Outcomes and Demographics: Is There A Bronx Effect?" (with Martin Wells), 80 Texas Law Review 1839-74 (2002).
"Appeal from Jury or Judge Trial: Defendants' Advantage" (with Kevin Clermont), 3 American Law and Economics Review 125-64 (2001).
"Damage Awards in Perspective: Behind the Headline-Grabbing Awards in Exxon Valdez and Engle, (Engle v. R.J. Reynolds Tobacco Co.: Lessons in State Class Actions, Punitive Damages, and Jury Decision-Making)," 36 Wake Forest Law Review 1129-55 (2001).
"The Deadly Paradox of Capital Jurors" (with Stephen P. Garvey & Martin T. Wells), 74 Southern California Law Review 371-97 (2001).
"Forecasting Life and Death: Juror Race, Religion, and Attitude toward the Death Penalty" (with Stephen P. Garvey & Martin T. Wells), 30 Journal of Legal Studies 277-311 (2001).
"Anti-Plaintiff Bias in the Federal Appellate Courts" (with Kevin M. Clermont), 84 Judicature 128-34 (2000).
"State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae" (with Richard P. Ieyoub), 74 Tulane Law Review 1859-83 (2000).
"Empirical Methods and the Law," 95 Journal of the American Statistical Association 665-669 (2000).
"Inbreeding in Law School Hiring: Assessing the Performance of Faculty Hired from Within" (with Martin T. Wells),  29 Journal of Legal Studies 369-88 (2000).
"Judicial Decisionmaking in Federal Products Liability Cases, 1978-1997," 49 DePaul Law Review 323-33 (1999).
"Judicial Politics, Death Penalty Appeals, and Case Selection: An Empirical Study" (with John H. Blume), 72 Southern California Law Review 465-504 (1999).
"The Predictability of Punitive Damages Awards in Published Opinions, the Impact of BMW v. Gore on Punitive Damages Awards, and Forecasting Which Punitive Awards Will be Reduced" (with Martin T. Wells), 7 Supreme Court Economic Review 59-86 (1999).
"Shopping for Judges: An Empirical Analysis of Venue Choice in Large Chapter 11 Reorganizations" (with Lynn M. LoPucki), 84 Cornell Law Review 967-1003 (1999).
"Post-McCleskey Racial Discrimination Claims in Capital Cases" (with John H. Blume and Sheri Lynn Johnson), 83 Cornell Law Review 1771-810 (1998).
"But Was He Sorry? The Role of Remorse in Capital Sentencing" (with Stephen P. Garvey and Martin T. Wells), 83 Cornell Law Review 1599-637 (1998).
"Measuring the Deterrent Effect of Punitive Damages," 87 Georgetown Law Journal 347-57 (1998).
"Punitive Awards After BMW, A New Caping System, and the Reported Opinion Bias" (with Martin T. Wells), 1998 Wisconsin Law Review 387-425.
"Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction" (with Kevin M. Clermont), 83 Cornell Law Review 581-607 (1998).
"Larger Board Size and Decreasing Firm Value in Small Firms" (with Stefan Sundgren and Martin T. Wells), 48 Journal of Financial Economics 35-54 (1998).
"Ranking and Explaining the Scholarly Impact of Law Schools" (with Martin T. Wells), 27 Journal of Legal Studies 373-413 (1998).
"Is Chapter 11 Too Favorable to Debtors? Evidence From Abroad" (with Stefan Sundgren), 82 Cornell Law Review 1532-67 (1997).
"The Predictability of Punitive Damages" (with John Goerdt, Brian Ostrum, David Rottman, and Martin T. Wells), 26 The Journal of Legal Studies 623-61 (1997).
"Simplifying the Choice of Forum: A Reply" (with Kevin M. Clermont), 75 Washington University Law Quarterly 1551-59 (1997).
"Courts in Cyberspace" (with Kevin M. Clermont), 46 Journal of Legal Education 94-10 (1996).
"Xenophilia in American Courts" (with Kevin M. Clermont), 109 Harvard Law Review 1120-43 (1996).
"Jury Responsibility in Capital Cases:  An Empirical Study" (with Stephen P. Garvey and Martin T. Wells), 44 Buffalo Law Review 339-80 (1996).
"Litigation Outcomes in State and Federal Courts: A Statistical Portrait" (with J. Goerdt, B. Ostrom, and D. Rottman), 19 Seattle University Law Review 433-53 (1996).
"Trial By Jury or Judge: Which Is Speedier?" (with Kevin M. Clermont), 79 Judicature 176-80, 99 (1996).
"Exorcising the Evil of Forum-Shopping" (with Kevin M. Clermont), 80 Cornell Law Review 1507-35 (1995).
"Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes" (with Orley Ashenfelter and Stewart Schwab), 24 The Journal of Legal Studies 257-81 (1995).
"Differing Perceptions of Attorney Fees in Bankruptcy Cases," 72 Washington University Law Quarterly 979-95 (1994).
"The Value of Obvious Empirical Results and the Omniscient Mr. Palans: Response to Mr. Palans' Comments," 72 Washington University Law Quarterly 1001-4 (1994).
"Should We Abolish Chapter 11? The Evidence From Japan" (with Shoichi Tagashira), 23 The Journal of Legal Studies 111-57 (1994).
"Baseline Problems in Assessing Chapter 11," 43 University of Toronto Law Journal 633-77 (1993).
"Deadly Confusion: Juror Instructions in Capital Cases" (with Martin, T. Wells), 79 Cornell Law Review 1-17 (1993).
"Products Liability Cases on Appeal: An Empirical Study" (with James A. Henderson, Jr.), 16 The Justice System Journal 117-38 (1993).
"Trial by Jury or Judge: Transcending Empiricism" (with Kevin M. Clermont), 77 Cornell Law Review 1124-77 (1992). Reprinted in National Trial Lawyer (parts 1, 2, and 3; 1993)
"Inside the Quiet Resolution in Products Liability" (with James A. Henderson, Jr.), 39 UCLA Law Review 731-810 (1992).
"The Effects of Intent: Do We Know How Legal Standards Work?" (with Sheri Lynn Johnson), 76 Cornell Law Review 1151-97 (1991).
"The Quiet Revolution in Products Liability" (with James A. Henderson, Jr.), 20 Anglo-American Law Review 188-203 (1991).
"The Quiet Revolution in Products Liability: An Empirical Study of Legal Change" (with James A. Henderson Jr.), 37 UCLA Law Review 479-553 (1990).
"Testing the Selection Effect: A New Theoretical Framework with Empirical Tests," 19 Journal of Legal Studies 337-58 (1990).
"Commentary on 'On the Nature of Bankruptcy': Bankruptcy and Bargaining," 75 Virginia Law Review 205-18 (1989).
"Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases," 77 Georgetown Law Journal 1567-602 (1989).
"Oral Comments on Commissioner Allen's Analysis of Runyon v. McCrary," 41 Rutgers Law Review 905-09 (1989).
"What Shapes Perceptions of the Federal Court System?" (with Stewart J.Schwab), 56 University of Chicago Law Review 501-39 (1989).
"Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant" (with Stewart J. Schwab), 73 Cornell Law Review 719-84 (1988).
"The Importance of Section 1981" (with Stewart J. Schwab), 73 Cornell Law Review 596-604 (1988).
"Bankruptcy in the Administrative State," 50 Law and Contemporary Problems 3-52 (1987). Reprinted in 10 Public Utilities Law Anthology (1988).
"The Reality of Constitutional Tort Litigation" (with Stewart Schwab), 72 Cornell Law Review 641-95 (1987).
"The Undersecured Creditor in Reorganizations and the Nature of Security," 38 Vanderbilt Law Review 931-973 (1985).
"Bankruptcy Law in Perspective: A Rejoinder," 30 UCLA Law Review 617-36 (1983).
"Section 1983: Doctrinal Foundation and An Empirical Study," 67 Cornell Law Review 482-556 (1982).
"Bankruptcy Law in Perspective," 28 UCLA Law Review 953-99 (1981).
"The Ordinary and the Extraordinary in Institutional Litigation" (with Stephen C. Yeazell), 93 Harvard Law Review 465-517 (1980).
"State Law in Federal Civil Rights Cases: The Proper Scope of Section 1988," 128 University of Pennsylvania Law Review 499-543 (1980).
"Reflections on a Unified Theory of Motive," 15 San Diego Law Review 1147-53 (1978).
"Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication," 52 New York University Law Review 36-171 (1977).  [Selected as one of the 25 most influential articles for 75th Anniversary Retrospective issue, 75 New York University Law Review 1517 (2000.]
Congressional Authority to Restrict Lower Federal Court Jurisdiction," 83 Yale Law Journal 498-533 (1974).
Book Reviews
"Negotiation, Lawyering, and Adjudication: Kritzer on Brokers and Deals," 19 Law & Social Inquiry 275-99 (1994) (Review of Herbert M. Kritzer, The Justice Broker: Lawyers and Ordinary Litigation and Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation)
"A Bankruptcy Machine That Would Go of Itself," 39 Stanford Law Review 1519-35 (1987) (Review of Thomas Jackson, The Logic and Limits of Bankruptcy Law (1986)).
Review of Peter H. Schuck, Suing Government: Citizen Remedies for Official Wrongs, 34 Journal of Legal Education 146-47 (1984).
Review of Gary L. McDowell, Equity and the Constitution, 67 Cornell Law Review 1016-20 (1982).