Bolch Judicial Institute
Bolch Judicial Institute
Crowdsourcing and Data Analytics: The New Settlement Tools?

Volume 102 Number 3 : Fall/Winter 2018


From the Publisher From the Publisher

The possibilities and risks of technology

By David F. Levi

On E-Discovery On E-Discovery

Controlling and understanding your data

By George Socha and Saaya Shah

From the Editor

What the law commands

By Spencer D. Levine

Storied Third Branch

Pioneer Women

By Sarah A.L. Merriam

Book Review

Supreme collaboration in Nino and Me

By Joe Boatwright


Crowdsourcing and Data Analytics: The New Settlement Tools?

by Bernard Chao, Christopher Robertson & David Yokum

By protecting the right to a jury, the state and federal constitutions recognize the fundamental value of having civil and criminal disputes resolved by laypersons. But as desirable as settlement may be, it can be a difficult way to resolve a dispute. Parties view their cases from different perspectives, and these perspectives often cause both sides to be overly optimistic and to expect unreasonably large or unreasonably small resolutions. This article suggests that parties work with mediators or settlement judges to create mini-trials and recruit hundreds of online mock jurors to render decisions. By applying modern statistical techniques to these results to produce data that will better inform the parties’ views and should thereby facilitate settlement.

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Guidance on New Rule 23 Class Action Settlement Provisions

by The Bolch Judicial Institute of Duke Law School

On Dec. 1, 2018, amendments to the Federal Rule of Civil Procedure 23 took effect. The amendments require lawyers to provide additional information up front for the court to preliminarily approve settlements (“frontloading”), permit notice by electronic means, impose limitations on compensating objectors, and clarify final-settlement criteria. This document, produced by 38 prominent defense and plaintiff practitioners and experts under the auspices of the Bolch Judicial Institute of Duke Law School and with input from judges and the public, offers guidelines and best practices for implementing the amendments.

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Clerking To Excess? The Case Against Multiple Clerkships

by Gregg Costa

There can be too much of a good thing. We know that’s true for food and drink, but we haven’t yet realized it’s also true for judicial clerkships. There has been a lot of talk recently about the new clerk hiring plan. Time will tell if it succeeds, though the smart money is on the collective action problem continuing its unbeaten streak. But the rise of the double clerkship is a more significant development in the clerkship world. Although the double clerkship has had a swift ascent — even a trifecta is not unheard of these days — little has been said about this transformation. This is the case against it.

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Ghosting: It’s Time To Find Uniformity on Ghostwriting

by Jona Goldschmidt

There is no way of knowing how many, and for how long, lawyers and nonlawyers have engaged in ghostwriting pleadings to assist pro se litigants — indigent or nonindigent. It is reasonable to assume that many lawyers and others have acted as ghostwriters in order to facilitate greater access to the court, rather than for personal gain. Despite the laudable motives of ghostwriters, ghostwriting has historically been considered an illegitimate form of unbundling legal services because of the spate of federal court opinions opposing the practice on ethical and Rule 11-violation grounds. This article addresses the current anomalous situation in which federal courts, on the one hand, and the ABA Standing Committee on Ethics and Professional Responsibility and a growing number of state high courts and ethics committees, on the other hand, diverge in their opinions regarding the propriety of ghostwriting.

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Perceptions of Bias: Do Campaign Contributions Create Public Perceptions of Judicial Bias?

by Thomas E. McClure

Empirical research offers varying perspectives on the association between judicial campaign contributions and judicial impartiality. Some scholars find no evidence of an association. But even with mixed research findings about the actual relationship between judicial campaign contributions and judicial impartiality, many legal observers have noted that judicial campaign contributions can nonetheless create the perception of improper influence. [An supplement with further detail on data and methodology is available here.]

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Judges and Stress: An Examination of Outcomes Predicted by the Model of Judicial Stress

by Monica K. Miller, Charles P. Edwards, Jenny Reichert & Brian H. Bornstein

Judges are tasked with adminis-tering justice and upholding the rights of everyone in accordance with the Constitution. The challenges associated with having to decide the fate of others, coupled with increases in violence and threats toward judges, increase the likelihood that judges might experience occupational stress. Judges might also experience occupational stress from exposure to gruesome evidence or graphic testimony. Although previous studies have examined causes of stress or types of stressors judges face because of their occupation, few studies have empirically investigated outcomes of stress. The purpose of this study is to address this gap and to assess judges’ general levels of stress and the outcomes resulting from that stress.

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Point Counterpoint Point Counterpoint

Are nationwide injunctions legal?

by Samuel Bray and Amanda Frost

Redlines Redlines

Repairing long sentences

By Joseph Kimble

Lastly Lastly

Table for nine

By Clare Cushman