Volume 2 , Issue 2


Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?

Jonah B. Gelbach

Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them.  Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes.  To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research.  I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover importa Read more about Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?

  • July 2014
  • 2 Stan. J. Complex Litig. 223
  • Article

Leveski and the Weakening Industry-Wide Public Disclosure Bar in Qui Tam Litigation

Alexander J. Kasner
In July of 2013, the Seventh Circuit decided Leveski v. ITT Educational Services, Inc. On its face, it was a fairly innocuous outcome couched in the minutia of the for-profit education industry and illicit recruiter payment systems. Viewed within the larger fabric of the False Claims Act and its qui tam provisions, however, the case handled with unique clarity an issue that has divided and befuddled federal courts: the so-called ‘industry-wide’ public disclosure bar. In short, the Seventh Circuit gutted the doctrine, quietly distinguishing or rejecting the approaches taken by various federal courts and leaving in place a far more streamlined method. In light of this decision and continued struggles by federal courts to reach consensus, this examination seeks to understand both the unspoken problems with the public disclosure bar as applied to an entire industry as well as the future of False Claims Act law in light of recent developments. It first unpacks the underlying debates in the industry-wide public disclosure bar and the questions left unresolved by the patchwork approach by myriad courts. It then turns to the Seventh Circuit’s decision, untangling the court’s approach to clearly articulate the new test implied by the case. The decision reached in Leveski is, in most regards, a laudable attempt to undercut the industry-wide public disclosure bar and increase the administrability of FCA qui tam jurisprudence and the access to court by meretricious relators. This noble aim, however, may exacerbate the dangers of superfluous and excessive qui tam litigation by working counter to recent statutory revisions under the Affordable Care Act.
  • July 2014
  • 2 Stan. J. Complex Litig. 185

Atlantic Marine and Stare Decisis Ambivalence in Civil Procedure

Jeremy Feigenbaum
Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas posed a simple question: is the Supreme Court bound by precedent when interpreting procedural rules and statutes? Unfortunately, the Court did not offer a similarly simple answer. By only partially upholding its prior interpretations of the statutes and rules at issue, the Court demonstrated its ambivalence toward stare decisis in the civil procedure context. Although courts consistently recognize the heightened importance of stare decisis in construing non-procedural statutes and rules, the Supreme Court has shown that it does not feel similarly bound in its civil procedure docket. As this comment concludes, the Court’s ambivalence toward stare decisis in interpreting procedural rules and statutes is unexplained and unjustified.
  • July 2014
  • 2 Stan. J. Complex Litig. 203