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Fabulous New Paper: Random Justice in Bankruptcy Trial Courts

posted by Jason Kilborn

JusticedieI just read a terrific new paper by Gary Neustadter of Santa Clara University Law School, called "Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World." It presents a monumental empirical study of a debt buyer's litigation campaign to pursue essentially identical contract and fraud claims against hundreds of secondary mortgagors in state courts, federal District Courts, and federal Bankruptcy Courts. The paths and outcomes of these materially identical cases are so different in so many surprising (and often disturbing) ways, the paper offers a really stunning look behind the curtain of our often arbitrary trial-level justice system. And Neustadter's telling of the story is gripping--I read the paper and most of its footnotes from beginning to end in one sitting, unable to put it down. The revelations in this paper are a gold mine for civil proceduralists generally and bankruptcy practitioners in particular. It offers a cautionary tale and useful playbook for lawyers (and perhaps judges) in how to make many aspects of our system more effective. Get it while it's hot!

Justice die image courtesy of Shutterstock


This could make one question contract drafting altogether.
Given random outcomes and the lack of likelihood that barristers can protect their clients interests (or even know how to...they just know how to roll the dice), is law, as in contract law drafted by solicitors, merely a set of barriers to entry, something to discourage counterparties to go to court? The more it appears that they have no case, the less likely they'll take it to court? Are contractual clauses mostly deterrent?

Nick, the outcomes in these cases weren't so much random because of failure to apply contract clauses--they were random because of lawyers' and courts' failures to apply relatively obscure elements of law and protective laws that should have put the cases away immediately for the defense (not the plaintiff). It's an access financing issue, principally for the defense, in my view.

This should come as no surprise to anyone who has set foot in a courtroom. Judges are people too.

This article in the US edition of The Guardian


does have a bankruptcy angle, because the State of Michigan filed adversaries against debtors who filed bankruptcy and allegedly had committed fraud.

How many adversary proceedings resulted in judgments favorable to the State of Michigan in cases where there was no fraud at all?

For a longer story on the UI mess, see


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