Digital Commons Network^™

Applying Mathematical Set Theory To Statutory Construction Of Municipal Sign Laws, Ann L. Nowak

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This case illustrates why municipal lawyers might want to review their high school mathematics lessons about set theory before drafting statutes. The application of set theory—particularly in the form of Venn diagrams—can help to prevent ambiguity of language in statutory construction. It is this ambiguity that gives rise to differences in interpretation, and these differences frequently lead to litigation over the meaning of a statute.

When Fear Rules In Law’S Place: Pseudonymous Litigation As A Response To Systematic Intimidation, Benjamin P. Edwards

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When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued …

Toward A Functional Approach To Sovereign Equality, Peter B. Rutledge

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Under the principle of sovereign equality of nations, nation states are entitled to equal dignity (evidenced by conventions like their voting rights in the United Nations), have the identical capacity to contract (evidenced by their ability to enter into treaties), and are not subject to a superior sovereign (evidenced by the lack of a global leviathan). This principle also has had an important effect in the field of international civil litigation, in areas such as judicial jurisdiction or sovereign immunity. As that principle has weakened over the twentieth century, risks of aggravation to comity have risen, resulting in the development …

Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown

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It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This …

Gat, Solvay, And The Centralization Of Patent Litigation In Europe, Marketa Trimble

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No abstract provided.

Toward A Law Of "Lovely Parting Gifts": Conditioning Forum Non Conveniens Dismissals, Thomas O. Main

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No abstract provided.

Tending To Potted Plants: The Professional Identity Vacuum In Garcetti V. Ceballos, Jeffrey W. Stempel

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No abstract provided.

Optimal Lead Plaintiffs, Elizabeth Chamblee Burch

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Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as the “most adequate plaintiff” to resolve intra-class conflicts and adequate-representation problems. But even if she could be all things to all people, the lead plaintiff has little authority to do much aside from appointing lead counsel. Plus, class members in securities-fraud cases have diverse preferences …

Group Consensus, Individual Consent, Elizabeth Chamblee Burch

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Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

Sections 3.17 and 3.18 make …

Joint Defense Or Research Joint Venture? Reassessing The Patent-Challenge-Bloc's Antitrust Status, Joseph S. Miller

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A patent challenger who defeats a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer's incentive to stay in the fight to the finish - especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. I have argued previously that a litigation-stage bounty would help correct this tilt against patent challenges, for it would provide cash prizes to successful patent challengers that they alone would enjoy. Even the best-designed bounty, however, would likely fail to encourage patent …

Damage Anchors On Real Juries, Shari Seidman Diamond, Mary R. Rose, Beth Murphy, John B. Meixner Jr.

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Experiments reveal anchoring as a powerful force, even when participants see the anchor as irrelevant. Here, we examine the reactions of real deliberating jurors to attorney damage requests and concessions in 31 cases involving 33 plaintiffs in which the jury awarded damages. Jurors were critical consumers of attorney suggestions. They reacted more negatively to, and were less influenced by, plaintiff ad damnums for pain and suffering than to damage requests in categories grounded in more objective evidence. Deliberations revealed that jurors often perceive plaintiff ad damnums not only as irrelevant, but also as outrageous, impressions reflected in their verdicts. These …

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

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There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our …

Taxing Structured Settlements, Gregg D. Polsky, Brant J. Hellwig

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Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt from the tax the investment yield imbedded within the structured settlement. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. While the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs’ lawyers and non-physically injured tort plaintiffs under general, common-law tax principles. …

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

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As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

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This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

A Mock Terrorism Application Of The P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives …

Litigating Groups, Elizabeth Chamblee Burch

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Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and …

A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch

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This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …

Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble

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In surveying recent literature on difficulties with cross-border injunctions in patent cases, one may conclude that the problem appears to be limited to the phenomenon of pan-European injunctions granted by some courts in Europe in cases concerning infringements of foreign patents. However, even in cases concerning domestic patents, injunctions reaching beyond national borders can be issued; the empirical evidence presented in the paper demonstrates a variety of such instances in U.S. patent cases. Certainly the existence of such injunctions in the U.S. raises concerns about their enforceability in other countries, particularly when they are issued against a foreign entity that …

Securities Class Actions As Pragmatic Ex Post Regulation, Elizabeth Chamblee Burch

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Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions' negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle.

Thus, understanding the full picture and texture of securities class actions necessitates …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

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Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

A Democratic Theory Of Amicus Advocacy, Ruben J. Garcia

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Amicus curiae ("friend of the court”) participation in litigation has flourished in recent years as many groups and individuals seek to influence the outcome of litigation. Amicus filers are not parties and judges have wide discretion to reject amicus briefs if they believe that the amicus participation does not add anything to the briefs already filed by the parties. In three recent cases, Seventh Circuit Court of Appeals Judge Richard Posner has rejected amicus filings and promised to closely scrutinize applications to file amicus briefs in the future. Judge Posner's influence has led an increasing number of judges, primarily at …

Reassessing Damages In Securities Fraud Class Actions, Elizabeth Chamblee Burch

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No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

"It's Not About The Money!": A Theory On Misconceptions Of Plaintiffs' Litigation Aims, Tamara Relis

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This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs' aims been examined from the perspectives of defense lawyers. These are significant gaps in the …

The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel

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It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

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A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

Of Frivolous Litigation And Runaway Juries: A View From The Bench, Thomas A. Eaton

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The political case for tort reform is based in large measure on the perception that there are too many frivolous law suits and too many excessive jury awards. Where there is considerable empirical evidence casting doubt on both these propositions, they remain the linchpins of the tort reform movement. Scholars, lobbyists, and legislators all have had a voice in the tort reform debates. The viewpoints of trial judges, however, have been largely absent. This is unfortunate because trial judges are the government officials with the closest view of the tort litigation system. They are the ones who see tort litigation …

Consequences Of Power, Tamara Relis

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This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is …

Assessing The Coverage Carnage: Asbestos Liability And Insurance After Three Decades Of Dispute, Jeffrey W. Stempel

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Often overlooked are the insurance issues related to asbestos and the degree to which the asbestos mass tort has changed the face of liability insurance and liability insurance law. The asbestos mass tort brought insurance coverage litigation into the big leagues of litigation, adjudication, and scholarly examination (although even the most rabid insurance coverage junkie would concede this is not much silver lining to the asbestos cloud). But after 30 years of big-time liability insurance coverage litigation involving asbestos or influenced by asbestos, what is the outcome? My assessment is:

1. Despite their protestations, insurers have not been unfairly treated …

Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel

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This Article describes the evolution of the perception of the modern class action from populist darling to greedy lawyer pariah, including recent passage of CAFA. It then examines the degree to which different types of cases present different potential benefits and detriments of class action treatment and explains why investor class actions, including those brought by institutional investors, are particularly likely to benefit from class treatment, are resistant to many of the perceived problems of class actions in other contexts, and should receive a warmer welcome from courts, both in absolute terms and relative to other types of class actions. …