Litigation selects for fringe and hard cases, not representative legal disputes

Evidence

Because genuinely easy cases and straightforward applications of legal rules are so rarely disputed in court, the array of disputes that do wind up in court represents a skewed sample of legal events. The effect, known as the selection effect,” is such that the cases that wind up in court are only-or almost only-the ones in which two opposing parties holding mutually exclusive views about some legal question both believe they have a reasonable chance of winning. — Frederick Schauer, Thinking Like a Lawyer, 38

Categorization

• XREF: Mirrors survivorship bias and publication bias: any sample observed through a selection filter misrepresents the underlying distribution. — connects to: Litigated cases are a biased sample, skewing toward hard ones — Frederick Schauer, Thinking Like a Lawyer, 449; Litigated cases self-select to those where both sides have plausible legal arguments — Frederick Schauer, Thinking Like a Lawyer, 253; Civil cases are typically settled in the shadow of potential trial — G. Alan Tarr, Judicial Process and Judicial…, 2161 (+2 more)

Related

• Litigated cases are a biased sample, skewing toward hard ones (similarity 0.94)
• Litigated cases self-select to those where both sides have plausible legal arguments (similarity 0.87)

Broader Connections

• Litigated cases self-select to those where both sides have plausible legal arguments #expands (0.75) — Frederick Schauer, Thinking Like a Lawyer, 253