Article by David Almeling1 , Darin Snyder2 , Michael Sapoznikow3 , Whitney McCollum4 and Jill Weader5

Originally published in the Gonzaga Law Review, March 2010

I. INTRODUCTION

This article presents, for the first time, a statistical analysis of trade secret litigation in federal courts.

Given the large and growing role of trade secrets in the U.S. economy, this article's first-in-kind status is surprising. Intellectual property ("IP") generally, and trade secrets specifically, are big business. Economists estimate that IP in the U.S. is worth about $5 trillion, which is equivalent to almost half of the U.S. economy.6 There is little data on the exact value of trade secrets because trade secrets are, by definition, secret. Economists nonetheless estimate that trade secrets are a large and increasing percentage of IP.7 The theft of trade secrets is also big business, costing companies as much as $300 billion per year.8

Despite the economic importance of trade secrets, trade secret law receives less scholarly attention than other major forms of IP, such as patents, copyrights and trademarks.9 One particularly significant gap in the trade secret literature is the dearth of empirical analysis.10 This article seeks to fill that void.

This article presents statistics from 394 cases in which a federal district court issued a written opinion based on trade secret law between 1950 and 2008. The authors—all IP litigators at the international law firm of O'Melveny & Myers LLP—analyzed and coded these cases for 28 criteria. The criteria included core questions about each case: what type of trade secret was at issue, who was the alleged misappropriator, what law did the court apply, what reasoning did the court use, who won, and many others.11 Throughout this study, we worked with statisticians to ensure that the data was as robust and valid as possible.12

The result of this study was a plethora of original data about trade secret litigation in federal courts. Here are some of the key findings:

  • Trade secret litigation in federal courts is growing exponentially. The data show that trade secret cases doubled in the seven years from 1988 to 1995, and doubled again in the nine years from 1995 to 2004.13 At the projected rate, trade secret cases will double again by 2017.14
  • In over 85% of trade secret cases, the alleged misappropriator was someone the trade secret owner knew—either an employee or a business partner.15
  • Trade secret owners were twice as likely to prevail on a motion for preliminary relief when they sued employees as when they sued business partners.16 Conversely, trade secret owners were over 70% more likely to lose a motion to dismiss when they sued employees than business partners.17
  • Courts applied the laws of Illinois, California, or New York in almost 30% of trade secret cases.18
  • In over 25% of trade secret cases, courts relied on nonbinding authority.19 This is surprising because trade secret law is state-based law and thus ostensibly complete without reference to nonbinding authority. These data mean that litigants should be prepared to address the law nationwide.
  • Alleged misappropriators should seriously consider moving for summary judgment. Despite the burdens faced by the moving party, alleged misappropriators prevailed at summary judgment in over half of the trade secret summary judgment decisions in this study.20
  • As one element of its prima facie case, a trade secret owner must establish that it took reasonable measures to protect its purported trade secrets.21 We performed a logistic regression to assess the relative effect of different protection measures on a court's determination of whether this element had been satisfied. The data show that two measures—confidentiality agreements with employees and confidentiality agreements with third parties—were significantly associated with a finding that this element was satisfied.22

This study is presented in five parts. Part I is this introduction. Part II details the methodology and summarizes the statistical literature on IP litigation. Parts III and IV present the data from this study and explain what the data add to an understanding of trade secret law. Specifically, Part III describes the history and current state of trade secret litigation in the federal courts. Part IV focuses on the who, when, and why of trade secret litigation and presents statistics to explain why courts reach the decisions they do. Part V concludes and suggests additional areas of empirical research.

II. METHODOLOGY

Because this article is the first statistical analysis of trade secret litigation in federal courts, we had to devise our own methodology. To do so, we reviewed the works of legal scholars who collected statistical legal scholarship and explained best practices.23 This Part presents the methodology and its limitations. We begin, however, with a literature review.

A. There Is Little Statistical Analysis on Trade Secrets

In contrast to patents, trademarks and copyrights, little statistical analysis exists on either trade secrets or trade secret litigation. For trade secrets, the explanation is simple—because trade secrets must be kept secret to qualify for protection, there is little publicly available material to study. So while there are extensive resources about other types of IP, including publicly available databases24 and government reports25 that scholars can mine for data,26 there are no such resources for trade secrets.

There are several reasons for the dearth of statistical analysis on trade secret litigation. One is that the federal judiciary does not systematically track trade secret litigation. The Administrative Office of the U.S. Courts and the Federal Judicial Center collect information about federal litigation,27 and the resulting databases are widely used by legal researchers.28 The data include information about every case filed in federal courts, such as the subject matter of the case, the parties, and outcome. Although the databases include specific data for patent, copyright, and trademark cases, they include no specific data on trade secret cases, and it is nearly impossible to isolate trade secret cases from other civil cases based on their data.

Another reason there are few statistical analyses of trade secret litigation is that trade secret law is state-based law. Other types of IP law are governed primarily by federal statute, which means that it is reasonable to limit statistical scholarship on patent, trademark,29 and copyright law to federal cases.30

Furthermore, because all patent appeals go to the U.S. Court of Appeals for the Federal Circuit, statistical scholarship on patent litigation can focus on that appellate court.31 In contrast, state law, which varies from state to state, governs trade secret cases. Moreover, trade secret cases are heard in both state courts (applying state trade secret law) and federal courts (applying state trade secret law through diversity or supplemental jurisdiction, or applying the federal Economic Espionage Act32).

Extensive research revealed a handful of statistical analyses that related in some way to trade secrets,33 but only two of them focused on trade secret litigation. First, Dr. Josh Lerner, a business professor at Harvard Business School, authored a working paper titled Using Litigation to Understand Trade Secrets: A Preliminary Exploration.34 In his study, Dr. Lerner selected a sample of trade secret cases in California and Massachusetts and coded those cases by name and number, parties, posture, date, industry, whether a violation occurred, whether injunctive relief was granted, if damages were granted and the amount of damages.35 Second, Dr. Mark Motivans, a statistician at the Bureau of Justice Statistics, authored Intellectual Property Theft, 2002.36 Dr. Motivans used data on criminal cases collected by the Federal Justice Statistics Program and presented certain statistics regarding criminal prosecutions and convictions under the Economic Espionage Act.37 Neither study purported to conduct a content analysis of the opinions or to describe an in-depth statistical analysis of trade secret litigation in federal courts.

B. Selection of Opinions

Trade secret litigation takes place in both federal and state courts, and thus any analysis of trade secret litigation must select opinions from both forums. This article, which analyzes trade secret litigation in federal courts, is thus the first part of a two-part series. The next article, to be published later this year in the Gonzaga Law Review, will analyze trade secret litigation in state courts. This study addresses federal trade secret cases issued from 1950 through 2008. For the purposes of this article, we defined "trade secret cases" as written decisions38 in which a U.S. district court expressly decided a substantive issue based on trade secret law. We excluded cases that involved issues similar to trade secret rights, but were decided under a different rule of law, such as a claim for breach of a nondisclosure agreement.39 We selected decisions at one of the following five procedural postures: motion for a preliminary injunction or a temporary restraining order;40 motion to dismiss for failure to state a claim upon which relief could be granted;41 motion for summary judgment;42 bench trial;43 and judgment as a matter of law.44

Because there was no pre-built search yielding all trade secret cases meeting our definition, we designed an over-inclusive search and then winnowed the results based on the definition of trade secret cases.45 We searched for all opinions that contained the phrase "trade secret" at least three times. We reviewed each case to exclude cases that did not meet our definition and, for cases that survived, to code for the 28 criteria. We made all winnowing and coding decisions based on the definitions in the Code Book, attached as Appendix A. This study comprises two categories:

  1. Sample of District Court Cases from 1950 to 2007. The search yielded 4,162 potentially relevant cases.46 This was too many to code, and thus we had to select a representative sample. We randomly selected 25% of these cases, which resulted in 1,041 cases.47 After winnowing cases based on the definition, the district court 1950-2007 population had 273 cases.
  2. All District Court Cases in 2008. The search yielded 482 potentially relevant cases.48 After winnowing, the district court 2008 population had 121 cases.

We divided the cases into two categories because there were too many cases between 1950 and 2008 to code and because we wanted to have a complete population of cases for 2008 to show how modern courts address trade secret issues.

C. Coding of Opinions

We chose 28 criteria49 after reviewing empirical research on other IP litigation, researching trade secret caselaw and scholarship to determine what issues interested courts and scholars, and incorporating ideas from well-known scholars and practitioners who reviewed early drafts of this article. As litigators of trade secret cases, we also added criteria for issues that arise repeatedly in our practices. We explain the 28 criteria and their definitions in Parts III-IV and Appendix A.

D. Limitations of the Methodology

Scholars debate the propriety of statistical legal scholarship.50 We do not delve into this debate or address the general critiques that apply to all statistical legal scholarship. Nevertheless, we acknowledge a few specific ways in which this study is limited.

Some of the coding decisions required discretion, and thus this study may be biased. While this is true, there was simply no other way to design this study. The criteria (like most interesting legal questions) involve nuance and defy objective categorization. Recognizing this issue, we attempted to increase this study's reliability by having 10% of all randomly selected cases reviewed by two of the authors. We then determined the level of intercoder agreement though a statistical formula called Cohen's kappa coefficient.51 The result of this formula demonstrated acceptable intercoder reliability for all of the data presented in this article, meaning that the various coders sufficiently coded the same cases in the same way.52

The unit of analysis—written decisions that are available on WESTLAW—is only a small part of the complete universe of trade secret misappropriations. Not all misappropriations of trade secrets develop into disputes; not all disputes result in litigation; not all litigation results in a written decision; and not all written decisions are available on WESTLAW. These limitations are unresolvable, as there is no set of comprehensive records at each step. More importantly, this article does not purport to present statistics about trade secret disputes. Instead, we present statistics about judicial decisions involving trade secrets.

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Footnotes

1. Associate, O'Melveny & Myers LLP. The authors collectively thank James Pooley, Charles Tait Graves, Josh Lerner, Mark Hall, Michael Spillner, Barton Beebe, Matthew Lynde, Timothy Pomarole, Christopher Sabis, Mark Miller, Eric Amdursky, and Luann Simmons for their comments on earlier drafts. We also thank Stacey Drucker for her assistance. This article does not purport to represent the views of O'Melveny & Myers LLP or its clients.

2. Partner, O'Melveny & Myers LLP. Mr. Snyder is Chair of the Intellectual Property and Technology Practice of O'Melveny & Myers.

3. Counsel, O'Melveny & Myers LLP.

4. Associate, O'Melveny & Myers LLP.

5. Associate, O'Melveny & Myers LLP.

6. ROBERT J. SHAPIRO & KEVIN A. HASSETT, supported by USA FOR INNOVATION, THE ECONOMIC VALUE OF INTELLECTUAL PROPERTY 3-8 (2005), available at http://www.sonecon.com/docs/studies/IntellectualPropertyReport-October2005.pdf. For additional estimates on the value of intangible assets or IP to the United States economy, see Fen Gu & Baruch Lev, The Information Content of Royalty Income, 18 ACCOUNTING HORIZONS 1, 1 (2004); Baruch Lev, Remarks on the Measurement, Valuation, and Reporting of Intangible Assets, FRBNY ECON. POL'Y REV. 17, 17 (2003).

7. See generally NAT'L INTELLECTUAL PROP. LAW ENFORCEMENT COORDINATION COUNCIL, REPORT TO THE PRESIDENT AND CONGRESS ON COORDINATION OF INTELLECTUAL PROPERTY ENFORCEMENT AND PROTECTION (2006), available at http://www.commerce.gov/opa/press/Secretary_Gutierrez/2006_Releases/September/2006%20IP%20report.pdf; Wesley M. Cohen et al., Protecting Their Intellectual Property Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (Or Not), (Nat'l Bureau of Econ. Research, Working Paper No. 7552, 2000), available at http://www.nber.org/papers/w7552.

8. OFFICE OF THE NAT'L COUNTERINTELLIGENCE EXECUTIVE, ANNUAL REPORT TO CONGRESS ON FOREIGN ECONOMIC COLLECTION AND INDUSTRIAL ESPIONAGE—2002 vii (2003), available at http://www.fas.org/irp/ops/ci/docs/2002.pdf. Other studies find different numbers, depending on the methodology used. Compare AM. SOC'Y FOR INDUS. SECURITY/PRICEWATERHOUSE COOPERS, TRENDS IN PROPRIETARY INFORMATION LOSS: SURVEY REPORT 25 (1999) (reporting $45 billion in costs due to theft of trade secrets), with AM. SOC'Y FOR INDUS. SECURITY, INT'L, TRENDS IN INTELLECTUAL PROPERTY LOSS SURVEY REPORT 7 (1998) (reporting an estimated $50 billion in direct costs and $200 billion in indirect costs) and Robert S. Mueller, III, Director, Fed. Bureau of Investigation, Address at the Detroit Economic Club (Oct. 16, 2003), available at http://www.fbi.gov/pressrel/speeches/director101603.htm ("Theft of trade secrets and critical technologies—what we call economic espionage—costs our nation upwards of $250 billion a year."); see also Mark E. A. Danielson, Economic Espionage: A Framework for a Workable Solution, 10 MINN. J. L. SCI. & TECH. 503, 504-15 (2009) (describing the various "damaging effects of economic espionage").

9. See infra notes 24-36 and accompanying text.

10. We catalogue the limited statistical scholarship on trade secret law in notes 33-36 and accompanying text.

11. Appendix A contains a complete list of the 28 criteria and their definitions.

12. We thank Charles Q. Strohm and Jenjira J. Yahirun, both Ph.D. candidates in the Department of Sociology at University of California, Los Angeles, for their expertise and assistance.

13. See infra Table 1.

14. Another way to express the growth in trade secret litigation is to count the number of federal court decisions that contain the phrase "trade secret." This method shows a doubling of trade secret cases every ten years: in 1955 there were 7 cases; in 1965, 20; in 1975, 37; in 1985, 111; in 1995, 153; and in 2005, 331. Specifically, we searched all cases in Westlaw's ALLFEDS database, which includes coverage of all available federal case law beginning in 1790. Beginning in 1950, we ran the following search for each calendar year that ended in a 5: ATLEAST3("TRADE SECRET!") & DA(AFT 12/31/1954 & BEF 01/01/1956); and so on. This search is obviously over-inclusive, for not every case that mentions "trade secret" at least three times applies substantive trade secret law. The data presented in Part III.A is thus a better measure of growth.

15. See infra Part III.B.

16. See infra Part IV.A.

17. See infra Part IV.A. As we explain in Part IV.A, this result was not statistically significant.

18. See infra Part III.C.

19. See infra Part III.E.

20. See infra Part IV.B.

21. See infra notes 124–125 and accompanying text.

22. See infra notes 132–133 and accompanying text.

23. See generally Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 96 CAL. L. REV. 63 (2008). Professors Hall and Wright presented best practices after collecting examples of empirical legal scholarship that analyzed judicial opinions as part of a content analysis.

24. The United States Patent & Trademark Office permits the searching of patents at http://patft.uspto.gov/ and trademarks at http://tess2.uspto.gov/ and the United States Copyright Office permits searching at http://www.copyright.gov/records/. There are also several private databases that collect statistics, such as the University of Houston Law Center, which provides statistics on 40 issues in patent cases at http://www.patstats.org/, and the Stanford Intellectual Property Litigation Clearinghouse, an online database that offers information about IP disputes within the United States at http://www.law.stanford.edu/program/centers/iplc/.

25. The United States Patent & Trademark Office provides annual statistics relating to patents and trademarks at http://www.uspto.gov/go/oeip/taf/ann_rpt_intermed.htm. The United States Copyright Office provides annual statistics at http://www.copyright.gov/reports/.

26. See generally, e.g., Ash Nagdev, Statistical Analysis of the United States' Accession to the Madrid Protocol, 6 NW. J. TECH. & INTELL. PROP. 211 (2008); John R. Allison & Mark A. Lemley, Who's Patenting What? An Empirical Exploration of Patent Prosecution, 53 VAND. L. REV. 2099 (2000).

27. See generally Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455 (2003).

28. Frank B. Cross, Comparative Judicial Databases, 83 JUDICATURE 248, 248 (2000).

29. Whereas patent and copyright laws preempt state law, there are concurrent federal and state trademark laws. 28 U.S.C. § 1338(a) (2006). Nonetheless, the vast majority of trademark litigation occurs under the federal Lanham Act.

30. The following is a nonexhaustive list of empirical scholarship on patent, trademark, and copyright law; additional empirical scholarship is cited elsewhere in this article. See generally, e.g., John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185 (1998); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. PA. L. REV. 549 (2008) [hereinafter Beebe, Copyright Fair Use Opinions]; Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 CAL. L. REV. 1581 (2006) [hereinafter Beebe, Trademark Infringement]; Jason J. Chung, More Solutions to Reduce Patent Pendency: An Empirical Study, 91 J. PAT. & TRADEMARK OFF. SOC'Y 338 (2009); P.J. Federico, Adjudicated Patents, 1948-54, 38 J. PAT. OFF. SOC'Y 233 (1956); Aneta Ferguson, The Trademark Filing Trap, 49 IDEA 197 (2008); Donna M. Gitter, Should the United States Designate Specialist Patent Trial Judges? An Empirical Analysis of H.R. 628 in Light of the English Experience and the Work of Professor Moore, 10 COLUM. SCI. & TECH. L. REV. 169 (2009); Jean O. Lanjouw & Mark Schankerman, Characteristics of Patent Litigation: A Window on Competition, 32 RAND. J. ECON. 129 (2005); Jon E. Merz & Nicholas M. Pace, Trends in Patent Litigation: The Apparent Influence of Strengthened Patents Attributable to the Court of Appeals for the Federal Circuit, 76 J. PAT. & TRADEMARK OFF. SOC'Y 579 (1994); Kimberly A. Moore, Judges, Juries, and Patent Cases — An Empirical Peek Inside the Black Box, 11 FED. CIR. B.J. 209 (2002); David L. Schwartz, Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission, 50 WM. & MARY L. REV. 1699 (2009); Jennifer M. Urban & Laura Quilter, Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, 22 SANTA CLARA COMPUTER & HIGH TECH. L.J. 621 (2006).

31. See generally, e.g., John R. Allison & Mark A. Lemley, How Federal Circuit Judges Vote in Patent Validity Cases, 27 FLA. ST. U. L. REV. 745 (2000); Christian A. Chu, Empirical Analysis of the Federal Circuit's Claim Construction Trends, 16 BERKELEY TECH. L.J. 1075 (2001); Ronald B. Cooley, What the Federal Circuit Has Done and How Often: Statistical Study of the CAFC Patent Decisions—1982 to 1988, 71 J. PAT. TRADEMARK OFF. SOC'Y 385 (1989); Christopher A. Cotropia, Nonobviousness and the Federal Circuit: An Empirical Analysis of Recent Case Law, 82 NOTRE DAME L. REV. 911 (2007); Donald R. Dunner et al., A Statistical Look at the Federal Circuit's Patent Decisions: 1982-1994, 5 FED. CIR. B.J. 151 (1995); William M. Landes & Richard A. Posner, An Empirical Analysis of the Patent Court, 71 U. CHI. L. REV. 111, 112 (2004) (testing the "implications of the 'patent court matters' hypothesis"); Kimberly A. Moore, Empirical Statistics on Willful Patent Infringement, 14 FED. CIR. B.J. 227 (2004); Kimberly A. Moore, Are District Court Judges Equipped to Resolve Patent Cases?, 15 HARV. J.L. & TECH. 1 (2001); David L. Schwartz, Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases, 107 MICH. L. REV. 223 (2008); R. Polk Wagner & Lee Petherbridge, Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance, 152 U. PA. L. REV. 1105 (2004); Andrew T. Zidel, Patent Claim Construction in the Trial Courts: A Study Showing the Need for Clear Guidance from the Federal Circuit, 33 SETON HALL L. REV. 711 (2003).

32. 18 U.S.C. §§ 1831-1839 (2006). For a recent discussion of the Act, see Joseph W. Cormier et al., Intellectual Property Crimes, 46 AM. CRIM. L. REV. 761, 764-77 (2009).

33. There have been a few surveys of how companies protect their trade secrets. One example is surveys published by the American Society for Industrial Security ("ASIS"), a professional organization for security professionals. ASIS has conducted seven surveys since 1991, completing its most recent study in 2007. See generally ASIS INTERNATIONAL, TRENDS IN PROPRIETARY INFORMATION LOSS: SURVEY REPORT 1 (2007), available at http://www.asisonline.org/newsroom/surveys/spi2.pdf. Another example is a survey questionnaire that addressed, in part, the increasing role of secrecy in protecting innovations. See generally Cohen, supra note 7. There was also a study of noncompetition agreements that included 33 variables, two of which were related to trade secrets. See generally Peter J. Whitmore, A Statistical Analysis of Noncompetition Clauses in Employment Contracts, 15 J. CORP. L. 483 (1990).

34. Josh Lerner, Using Litigation to Understand Trade Secrets: A Preliminary Exploration (working paper, 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=922520.

35. Id. at 10-11, 16 ("I have not exploited the rich mine of information in the decisions themselves.").

36. Mark Motivans, Bureau of Justice Statistics Special Report, U.S. Dep't of Justice, Intellectual Property Theft, 2002 (2004), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ipt02.pdf.

37. Id.

38. Both precedential and nonprecedential cases were included in this study, as many other scholars have done. See, e.g., Allison & Lemley, supra note 30, at 196.

39. This limitation excludes a host of trade secret-like cases and cases that some might consider trade secret cases under another name, such as noncompetition agreements and other methods to protect proprietary information. This limitation is particularly pronounced in older cases, which often did not purport to apply trade secret law. These related rights deserve examination, but this study focused on trade secret law.

40. FED. R. CIV. P. 65. We combined the postures of temporary restraining orders and preliminary injunctions because, while they differ in duration, procedure, and appealability, their substantive requirements are very similar.

41. FED. R. CIV. P. 12(b)(6).

42. FED. R. CIV. P. 56.

43. FED. R. CIV. P. 52.

44. FED. R. CIV. P. 50. We treated opinions regarding a judgment notwithstanding the verdict (also called a JNOV or judgment non obstante verdicto) in the same manner as those that involved a judgment as a matter of law.

45. The use of a broad initial search and subsequent subjective winnowing has many precedents. E.g., Beebe, Trademark Infringement, supra note 30, at 1649-50 (beginning with all cases that made any reference to multifactor tests and winnowing to find opinions that "made substantial use" of the tests and to exclude certain other cases); Chu, supra note 31, at 1092 n.81 ("This author reviewed each of these cases to screen patent cases from non-patent cases for inclusion in this study's population.").

46. Our search in the Westlaw U.S. District Courts Cases (DCT) database was: ATLEAST3("TRADE SECRET!") & DA(AFT 12/31/1949 & BEF 01/01/2008).

47. We assigned each decision a random number. We then ranked decisions by that number, and coded the top 25%.

48. Our search in Westlaw U.S. District Courts Cases (DCT) database was: ATLEAST3("TRADE SECRET!") & DA(AFT 12/31/2007 & BEF 01/01/2009).

49. The 28 criteria included several criteria that did not produce useful data, such as industry of the parties and the outcome of the case. Data on these criteria would have been interesting to practicing trade secret litigators or others trying to predict the value of a trade secret dispute. But those criteria did not produce statistically significant information and are not discussed further in this article. In Part V, we present alternative methodologies for empirical research into trade secret law that may produce better data on these criteria.

50. Compare Hall & Wright, supra note 23, at 63-66, and Richard L. Revesz, A Defense of Empirical Legal Scholarship, 69 U. CHI. L. REV. 169, 169-71 (2002), with Hon. Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 DUKE L.J. 1895, 1903-06 (2009), and Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 6 (2002) (arguing that the "current state of empirical legal scholarship is deeply flawed").

51. This form of analysis has substantial precedent in legal scholarship. See, e.g., Schwartz, supra note 30, at 1734-35 (measuring inter-coder agreement and providing Cohen's kappa ranges).

52. The average kappa statistic for all cases in which the case criterion were mutually exclusive was 0.53. Kappa statistics within the range of .41-.60 represent moderate strength in agreement. J. Richard Landis & Gary G. Koch, The Measurement of Observer Agreement for Categorical Data, 33 BIOMETRICS 159, 165 (1977).

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