Law Commons^™

Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The Predictability Of Punitive Damages, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman, Martin T. Wells

Cornell Law Faculty Publications

Using one year of jury trial outcomes from 45 of the nation's most populous counties, this article shows a strong and statistically significant correlation between compensatory and punitive damages. These findings are replicated in 25 years of punitive damages awards from Cook County, Illinois, and California. In addition, we find no evidence that punitive damages awards are more likely when individuals sue businesses than when individuals sue individuals. With respect to award frequency, juries rarely award punitive damages and appear to be especially reluctant to do so in the areas of law that have captured the most attention, products liability …

"And The Truth Shall Make You Free": Truth As A First Amendment Defense In Tortious Interference With Contract Cases, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Legal Process And Choice Of Law, William L. Reynolds

Faculty Scholarship

No abstract provided.

What Happens When Parties Fail To Prove Foreign Law?, William L. Reynolds

Faculty Scholarship

No abstract provided.

Some Realism About Federal Procedural Reform, Carl W. Tobias

Law Faculty Publications

A New Confederacy? Disunionism in the Federal Courts is a thought-provoking tour de force about many ills that federal court observers believe plague the modem federal district courts. In Disunionism, Professor Paul Carrington paints a perceptive portrait of the troubling conditions that he asserts impede civil litigation in a number of districts, and he trenchantly criticizes district judges for their contributions to these circumstances while admonishing the Judicial Conference to sweep "our national courts clear of all local clutter."

Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …

The Litigious Plaintiff Hypothesis: Case Selection And Resolution, Theodore Eisenberg, Henry S. Farber

Cornell Law Faculty Publications

The process through which cases are selected for litigation cannot be ignored because it yields a set of lawsuits and plaintiffs that is far from a random selection either of potential claims or of potential claimants. We present a theoretical framework for understanding the operation of this suit-selection process and its relationship to the underlying distribution of potential claims and claimants. The model has implications for the trial rate and the plaintiff win rate at trial. Our empirical analysis, using data on over 200,000 federal civil litigations, yields results that are strongly consistent with the theory.

Whoever Fights Monsters Should See To It That In The Process He Does Not Become A Monster: Hunting The Sexual Predator With Silver Bullets -- Federal Rules Of Evidence 413-415 -- And A Stake Through The Heart -- Kansas V. Hendricks, Joelle A. Moreno

Faculty Publications

No abstract provided.

Interest Groups, Contracts And Interest Analysis, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

No abstract provided.

Interjurisdictional Preclusion, Howard M. Erichson

Faculty Scholarship

Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion1 more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. This article examines the problem of interjurisdictional preclusion, and, in particular, the problem of choice of preclusion law. Choice of-preclusion law cannot be appreciated in the abstract, but rather must be considered in light of litigation …

Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang

LLM Theses and Essays

Bankruptcy is a judicial process purporting to regulate and adjust the financial relationships between debtors and creditors which come into a deadlock. In the modern United States, bankruptcy has become a concept pervading each corner of the social and economic lives. It touches mass tort victims, large corporations, small family business, government institutions, and even normal individuals. The appearance of the modern bankruptcy law of the United States is signaled by the enactment of the Bankruptcy Reform Act in 1978 which, together with later amendments, constitute the current Bankruptcy Code of the United States; but also help them strategically restructure …

Lawyers' Roles In Child Protection, Donald N. Duquette

Book Chapters

What roles and responsibilities do lawyers assume in civil child protection cases? As distinguished from other legal proceedings which may grow from a case of child maltreatment, civil child protection proceedings focus on the child and the child's needs. These civil cases are not concerned with punishing an offender, recovering money damages from a person or institution who may have harmed a child, or suspending someone from a professional license. The focus here is on the proper care and custody of the child.

Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch

All Faculty Scholarship

In this Article, Professor Fisch assesses currrent retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues that retroactivity raises in both contexts. Professor Fisch's analysis, influenced by the legal process school, uses an equilibrium approach to connect retroactivity analysis to theories of legal change. Instead of focusing on the nature of the new legal rule, …

Implementing Procedural Change: Who, How, Why, And When?, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Contemplating The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuation of the series of essays analyzing and documenting federal civil justice reform, this essay first provides an update on developments in civil justice reform nationally and in the United States District Court of Montana (Montana District). The essay then stresses the continuing work of the Ninth Circuit District Local Rules Review Committee and additional issues relating to case assignments in the Montana District. Finally, the essay takes a glimpse into the future.

Magistrate Judges In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it …

Sexual Character Evidence In Civil Actions: Refining The Propensity Rule, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

When claims of sexual misconduct are made, two threads are often seen in the kinds of questions raised: Did she "invite it," and has he ever done it before? The way these questions are handled can determine the outcome of a sexual misconduct case. In 1995, Congress weighed in on whether these questions could be asked in civil cases in federal court and adopted two significant changes to the rules of evidence. One, revised Rule 412,4 extends "rape shield" protection to civil actions that claim sexual misconduct, including sexual harassment. The other, new Rule 415,5 allows plaintiffs to offer evidence …

Discovery In International Legal Developments Year In Review: 1996, Christopher J. Borgen

Faculty Publications

American procedure regarding international discovery stems from 28 U.S.C. §§ 1781-83, and Federal Rule of Civil Procedure (FRCP or Rule) 28(b). Broadly speaking, these rules are concerned with the mechanics of assessing requests for discovery in the United States to assist a proceeding in a foreign country and attempts by one or more parties before a U.S. court to obtain evidence located in another country. This article serves as a brief review of developments during the year.

Class Action Chaos? The Theory Of The Core And An Analysis Of Opt-Out Rights In Mass Tort Class Actions, Michael A. Perino

Faculty Publications

From breast implants to cigarettes, mass tort class actions are a prominent and controversial part of the contemporary litigation landscape. A critical component of these actions is the ability of class members to “opt out” and thereby exclude themselves from the effect of any class judgment. The tension between individual autonomy and the desire for global resolution of mass controversies has led to an intense debate concerning the circumstances under which opt-out rights should be constrained, if at all.

This Article makes five distinct contributions to the class action literature. First, the Article applies the game theoretic concept of the …

A Worthy Champion For Fourteenth Amendment Rights: The United States In Parens Patriae, Larry Yackle

Faculty Scholarship

When the Clinton Administration announced its intention to challenge Proposition 209, the new prohibition on affirmative action in California, the Justice Department declined to say whether the United States would formally intervene in the lawsuit already under way or merely file an amicus brief supporting the plaintiffs. Casual observers may have assumed that the Administration considered the form of its participation to raise further political and strategic considerations. That was undoubtedly true. It was also true, however, that Justice Department lawyers faced a legal question as well. According to the precedents on point, the United States required an authorizing statute …