Litigated cases self-select to those where both sides have plausible legal arguments

Evidence

Llewellyn’s claim was less extreme than it may appear. As early as 1930, in The Bramble Bush, Llewellyn was at pains to limit his claims to the class of cases that were worth fighting over. Anticipating important law and economics insights about the so-called selection effect that were not to come until some fifty years later, Llewellyn recognized that the straightforward cases in which the law is all on one side rarely generate litigation. Indeed, they rarely generate legal disputes at all. Many Americans would prefer to pay their taxes on a date somewhat later than the April 15 deadline, but the implausibility of finding legal support for that position means that the question whether “April 15” in the Internal Revenue Code means April 15 will rarely be disputed, even more rarely be litigated, and more rarely yet wind up in an appellate court. Similarly, in the normal course of things, bills get paid, police officers obtain warrants, contracts are honored, and insurance companies whose insureds cause accidents make payments to the victims. Law abounds with such straightforward applications-we can call them “easy cases”-and the set of cases that winds up in court, and even more the smaller set that winds up in an appellate court, consists pretty much only of those cases in which both sides think that they have a colorable enough legal argument that it is worth spending time and money to go to court and then, for the losing party, worth the time and money of pursuing an appeal. — Frederick Schauer, Thinking Like a Lawyer, 253

Categorization

• XREF: The ‘selection effect’ anticipates modern law-and-economics literature and also links to how publication/academic fields suffer sampling bias. — connects to: Litigated cases are a biased sample, skewing toward hard ones — Frederick Schauer, Thinking Like a Lawyer, 449; Litigation selects for fringe and hard cases, not representative legal disputes — Frederick Schauer, Thinking Like a Lawyer, 38; Advocates debate whether case factual similarities are legally material — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 581 (+12 more)
• QUESTION: The empirical claim that ‘easy cases’ rarely reach appellate courts — how strong is the evidence base for what fraction of disputes never get filed?

Related

• Litigation selects for fringe and hard cases, not representative legal disputes (similarity 0.87)
• Litigated cases are a biased sample, skewing toward hard ones (similarity 0.83)

Broader Connections

• Every legal maxim has a counter-maxim applicable with equal plausibility #corroborates (0.70) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 820
• Advocates debate whether case factual similarities are legally material #expands (0.60) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 581