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Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Articles by Maurer Faculty
The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …
A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan
A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan
Articles by Maurer Faculty
There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.
Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …
Bhopal In The Federal Courts: How Indian Victims Failed To Get Justice, Jayanth K. Krishnan
Bhopal In The Federal Courts: How Indian Victims Failed To Get Justice, Jayanth K. Krishnan
Articles by Maurer Faculty
Over thirty-five years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (“UCIL”), which had as its parent company the American-based Union Carbide Corporation (“UCC”). Thousands were killed, with many more injured. One hundred forty-five cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the multi-district litigation (“MDL”) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens …
Analyzing Analytics: Litigation Analytics In Bloomberg Law, Westlaw Edge, And Lexis Advance, Ashley A. Ahlbrand
Analyzing Analytics: Litigation Analytics In Bloomberg Law, Westlaw Edge, And Lexis Advance, Ashley A. Ahlbrand
Articles by Maurer Faculty
No abstract provided.
The False Allure Of Settlement Pressure, Nicholas Almendares
The False Allure Of Settlement Pressure, Nicholas Almendares
Articles by Maurer Faculty
The threat of “blackmail” or “in terrorem” settlements have shaped the law, leading courts to conclude that if the plaintiff does not appear likely to win the case, then the litigation should be halted at an early stage. This Article questions the established logic of settlement pressure. After clarifying the concept and presenting the strongest case for it, I show that it cannot serve as the basis for wide-ranging civil procedure doctrines. Doing so has perverse results, such as privileging the defendant’s idiosyncratic tastes and helping corporate managers hide important facts from their shareholders. In addition, settlement pressure is not …
How Should Damages Be Calculated For Design Patent Infringement?, Mark D. Janis
How Should Damages Be Calculated For Design Patent Infringement?, Mark D. Janis
Articles by Maurer Faculty
No abstract provided.
Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, Steve Sanders
Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, Steve Sanders
Articles by Maurer Faculty
To survive rational basis scrutiny under the Equal Protection Clause, a law must serve a governmental purpose which is at least legitimate. It is well established that legitimate purposes can sometimes be found through speculation and conjecture-that is, they may be hypothesized-in order to avoid the difficulties of identifying actual purpose or the specter of courts second-guessing legislative judgments. But hypothesized purposes can be abused, and such abuse was rampant in the states' defenses of their bans on same-sex marriage, bans which were ultimately invalidated in Obergefell v. Hodges.
This Article draws on the federal marriage litigation as a lens …
Foreign Governments As Plaintiffs In U.S. Courts And The Case Against "Judicial Imperialism", Hannah L. Buxbaum
Foreign Governments As Plaintiffs In U.S. Courts And The Case Against "Judicial Imperialism", Hannah L. Buxbaum
Articles by Maurer Faculty
One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a …
Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak
Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak
Articles by Maurer Faculty
In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory …
Mandatory Rules In Civil Litigation: Status Of The Doctrine Post-Globalization, Hannah Buxbaum
Mandatory Rules In Civil Litigation: Status Of The Doctrine Post-Globalization, Hannah Buxbaum
Articles by Maurer Faculty
For all the scholarly attention paid to the role of mandatory rules in civil litigation, the doctrine regarding their use has never been fully developed. Certainly courts considering contracts governed by foreign law will sometimes override that law, applying a mandatory rule of the forum in its place. But in its most expansive articulation, the "mandatory rules" theory would also permit courts in certain circumstances to apply the mandatory law of a third country - a direction in which courts have declined to go. This article examines one of the justifications forwarded by early proponents of this more expansive approach: …
Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, Hannah Buxbaum
Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, Hannah Buxbaum
Articles by Maurer Faculty
This article examines a form of securities class action that is growing increasingly popular in U.S. courts: the foreign cubed action, brought against a foreign issuer on behalf of a class that includes foreign investors who purchased securities on a foreign exchange. These cases are becoming an important part of the regulatory landscape (as evidenced by recent high-profile lawsuits involving issuers such as Vivendi, Bayer and Royal Ahold), and they create the potential for particularly severe conflict with other countries on the question of how best to regulate global economic activity. Yet they point out quite clearly that the traditional …
Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira
Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira
Articles by Maurer Faculty
Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors' emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the …
Representing The Media At Trial, Joseph A. Tomain, Richard M. Goehler, Amanda G. Main
Representing The Media At Trial, Joseph A. Tomain, Richard M. Goehler, Amanda G. Main
Articles by Maurer Faculty
No abstract provided.
Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung
Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung
Articles by Maurer Faculty
Do attorneys really add value or can unrepresented parties achieve equivalent results? This fundamental question ordinarily is difficult to answer empirically. An equally important question both for attorneys and the justice system is whether attorneys prolong disputes or instead facilitate expeditious resolution of cases.
Fortunately, there is a federal court that provides an excellent laboratory in which to test and answer these questions. In the United States Tax Court (Tax Court), where most federal tax cases are litigated, the government always is represented by Internal Revenue Service attorneys but a large portion of the taxpayer litigants proceed pro se. In …
Transnational Regulatory Litigation, Hannah Buxbaum
Transnational Regulatory Litigation, Hannah Buxbaum
Articles by Maurer Faculty
Recent years have seen much debate about the role of national courts in addressing global harms. That debate has focused on the application by domestic courts of international law - for instance, in civil actions brought in U.S. courts to enforce human rights law. This article identifies a parallel development in the area of economic regulation. It classifies and analyzes a category of cases that seek the application of regulatory law by domestic courts in situations involving global economic misconduct. Like the public international law cases, these cases highlight the tension between the benefits to be gained by enhanced enforcement …
Forum Selection In International Contract Litigation: The Role Of Judicial Discretion, Hannah Buxbaum
Forum Selection In International Contract Litigation: The Role Of Judicial Discretion, Hannah Buxbaum
Articles by Maurer Faculty
The United States is currently involved in negotiation of the Hague Convention on Exclusive Choice of Court Agreements, which would regulate the enforceability of forum-selection clauses in international contracts. That project - as well as the recent focus in globalization literature on more active judicial management of forum selection - draws attention to one unusual aspect of U.S. jurisdictional law: that dismissal on the basis of forum non conveniens is available even in cases arising out of contracts including negotiated forum selection clauses. This article examines the resulting tension between the right of contract parties to select a forum in …
Minimum Contacts, No Dog: Evaluating Personal Jurisdiction For Nonparty Discovery, Ryan W. Scott
Minimum Contacts, No Dog: Evaluating Personal Jurisdiction For Nonparty Discovery, Ryan W. Scott
Articles by Maurer Faculty
No abstract provided.
Reforming Patent Validity Litigation: The "Dubious Preponderance", Mark D. Janis
Reforming Patent Validity Litigation: The "Dubious Preponderance", Mark D. Janis
Articles by Maurer Faculty
No abstract provided.
Assessing Sovereign Interests In Cross-Border Discovery Disputes: Lessons From Aerospatiale, Hannah Buxbaum
Assessing Sovereign Interests In Cross-Border Discovery Disputes: Lessons From Aerospatiale, Hannah Buxbaum
Articles by Maurer Faculty
The Hague Evidence Convention addresses a particular kind of jurisdictional conflict: the conflict between one nation's issuance of extraterritorial discovery orders and another nation's right to govern discovery activity taking place within its territory. The particular mechanisms that the Convention establishes for use in cross-border discovery proceedings, and the compromises between civil-law and common-law procedures for evidence gathering that it embodies, were effected with that system goal in mind. In Aerospatiale, the Supreme Court considered the scope of the Convention's application, addressing the interaction of Convention procedures and pre-existing federal rules on evidence gathering. As portions of the decision make …
Clear Sailing Agreements: A Special Form Of Collusion In Class Action Settlements, William D. Henderson
Clear Sailing Agreements: A Special Form Of Collusion In Class Action Settlements, William D. Henderson
Articles by Maurer Faculty
A clear sailing agreement (or clause) is a compromise in which a class action defendant agrees not to contest the class lawyer's petition for attorneys' fees. This Article argues that clear sailing provisions often facilitate collusive settlements in cases involving non-pecuniary relief or claims-made common funds that return all unclaimed monies to the defendant. Because these types of settlements present difficult valuation problems, trial courts lack a clear benchmark for calculating attorneys' fees. Defendants and class can exploit this uncertainty by presenting an inflated settlement value to the court (to justify higher attorneys' fees) while simultaneously reducing the true cost …
Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley
Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley
Articles by Maurer Faculty
No abstract provided.
The Ethics Of Evidence, J. Alexander Tanford
The Ethics Of Evidence, J. Alexander Tanford
Articles by Maurer Faculty
Professor J. Alexander Tanford offers a unique perspective on the ethics of evidence, illustrated by examples of his own personal experiences as well as excerpts from film and literature. This Article is a must read for any litigator as it addresses the issue of where the line is to be drawn regarding evidence in the courtroom.
So Help Me God: A Comparative Study Of Religious Interest Group Litigation, Jayanth K. Krishnan, Kevin R. Den Dulk
So Help Me God: A Comparative Study Of Religious Interest Group Litigation, Jayanth K. Krishnan, Kevin R. Den Dulk
Articles by Maurer Faculty
No abstract provided.
Keeping Cross-Examination Under Control, J. Alexander Tanford
Keeping Cross-Examination Under Control, J. Alexander Tanford
Articles by Maurer Faculty
No abstract provided.
Public Interest Litigation In A Comparative Context, Jayanth K. Krishnan
Public Interest Litigation In A Comparative Context, Jayanth K. Krishnan
Articles by Maurer Faculty
No abstract provided.
Now V. Scheidler, Round Two, Craig M. Bradley
Now V. Scheidler, Round Two, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
Precedent Lost: Why Encourage Settlement, And Why Permit Non-Party Involvement In Settlements?, Leandra Lederman
Precedent Lost: Why Encourage Settlement, And Why Permit Non-Party Involvement In Settlements?, Leandra Lederman
Articles by Maurer Faculty
No abstract provided.
Which Cases Go To Trial?: An Empirical Study Of Predictors Of Failure To Settle, Leandra Lederman
Which Cases Go To Trial?: An Empirical Study Of Predictors Of Failure To Settle, Leandra Lederman
Articles by Maurer Faculty
No abstract provided.
The Adverse Testimony Privilege, Inalienable Entitlements, And The "Internal Stance": A Response To Professor Regan, Susan H. Williams
The Adverse Testimony Privilege, Inalienable Entitlements, And The "Internal Stance": A Response To Professor Regan, Susan H. Williams
Articles by Maurer Faculty
No abstract provided.
Keeping Cross-Examination Under Control, J. Alexander Tanford
Keeping Cross-Examination Under Control, J. Alexander Tanford
Articles by Maurer Faculty
No abstract provided.