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Inferences from Litigated Cases

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Priest and Klein argued in 1984 that, because of selection effects, the percentage of litigated cases won by plaintiffs will not vary with the legal standard. Many researchers thereafter concluded that one could not make valid inferences about the character of the law from the percentage of cases plaintiffs won, nor could one measure legal change by observing changes in that percentage. This article argues that, even taking selection effects into account, one may be able to make valid inferences from the percentage of plaintiff trial victories, because selection effects are partial. Therefore, although selection mutes changes in the plaintiff trial win rate, it does not make the win rate completely invariant to legal change. This article shows that inferences from litigated cases may be possible under the standard screening and signaling models of settlement, as well as under Priest and Klein’s original divergent-expectations model.

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