Much has been written about the inaccessibility of court data. State courts are a mixed bag, but most state dockets are difficult to study. Tribal courts are even more heterogenous. The federal system provides reasonable top-level data but makes large-n studies of litigation activity tricky and costly. Commercial solutions are often pricey, incomplete, or both. The dearth of good data has been a massive impediment to the “democratization” of empirical studies in civil procedure. Scholars without significant research budgets or special connections have been stymied from answering the many empirical questions we all have about the day-to-day work of courts.
It is in this context that No Adjudication shines. Many civil procedure teachers have a sense of how many cases terminate early and without much fuss. Few can offer more than anecdotes when students inquire about specifics. No Adjudication fills that gap in important ways.
The first is to complicate our understanding of litigation. As other scholars have pointed out, teachers and scholars frequently highlight the many attention-grabbing cases with battling and beefy motions, drawn-out fights over years in multiple forums, flashy trials, and thousands of docket entries—Opioids, tobacco, asbestos, Vioxx, Texaco’s boomerang litigation. But perhaps rule-makers and scholars have not paid enough attention to the run-of-the-mill cases. Not only are trials vanishing and courts increasingly lawyerless, but No Adjudication shows that litigation often is also not public and not, as most presume, based on “presentation of facts and arguments to a neutral arbiter.” Most federal court cases (60%) resolve with only a complaint or complaint and an answer. Less than a third of cases include a filing of a dispositive motion. Most cases are in federal court for a few short weeks. Most produce only a handful of (largely routine and clerical) docket entries. What would civil procedure look like if designed primarily for “no adjudication” cases? What would a civil procedure class look like that taught future lawyers to practice ethically in such an environment?
These points are not entirely novel but certainly become more persuasive when buttressed with fresh, careful, and relevant analysis of ample data, the article’s second contribution. Its findings are based on a complete record of all Federal civil docket sheets for a two-year period, roughly 357,000 cases and millions of docket entries. That is a staggering amount of data. It far surpasses what most scholars have been able to access in the past. Previous studies frequently relied either on court opinions or on docket sheets from a sampling of cases. Both have important limitations that No Adjudication avoids.
The article’s third contribution is methodological in nature. To make sense of all these docket entries, the authors developed “a set of uniform litigation event labels” to bring order to the non-standardized and absurdly diverse ways that identical events are labeled in dockets around the country; this labeling process is available for future researchers. There are numerous ways to do this kind of work, with varying advantages and downsides. I suspect future researchers confronting the same task will benefit from the labeling process described here—whether they duplicate it, modify it, or reject it in favor of a different approach. Another methodological contribution is the authors’ humility. They contribute to the further development of the field by emphasizing the limitations of their approach and data. Even with access to amazing data, important varieties of litigation activity remain invisible because they occur “informally, behind closed doors or outside the courthouse,” do not result in a docket entry, and because there are “no uniform rules across districts for docket entries.”
The article is worth careful study in its own right. However, it also deserves attention as a sign of what might come next. The data used in the article comes from the SCALES-OKN project. Many people have generously contributed to the project over many years to acquire the data and make it accessible. That is a rare feat in legal scholarship that, I hope, will help to democratize studies of courts in every sense.
