The Curious Incident of The Falling Win Rate: Individual vs System-Level Justification and the Rule of Law

For forty quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70% to 30%, where it remained - albeit with increased volatility - for the next twenty years. This Essay explores the reasons for this decline and the need for systemic explanations for the phenomenon. Approximately 60% of the fall could be attributable to the changing makeup of the federal docket, but that leaves 40% of the fall (that is, a win rate decline of 14 percentage points over a ten year period) unaccounted for. We show that the most obvious explanations for the remaining fall in the win rate and subsequent volatility do not fit the data and assumptions about rational behavior. Changes in system-level outputs of the justice system require a justification that is consistent with rule of law values. The absence of such an explanation for the falling win rate should be a source of concern. Further empirical studies could help explain this mystery, but such studies require data only in the possession of the courts themselves, or that are not currently systematically collected. We conclude with an explanation for why systemic studies of the workings of the justice system are importan