Law Commons^™

Archcity Defenders: Municipal Courts White Paper, Thomas Harvey, John Mcannar, Michael-John Voss, Megan Conn, Sean Janda, Sophia Keskey

All Faculty Scholarship

ArchCity Defenders represents St. Louis' indigent on a pro bono basis in criminal and civil legal matters while working closely with social service providers to connect clients with services. Our primary goal is to remove the legal barriers preventing our clients from accessing the housing, job training, and treatment they need to get on with their lives.

In the five years we have been doing this work, we have primarily focused on representation in the municipal courts that have jurisdiction over infractions for mostly traffic-related offenses. Our direct representation of clients in these courts and the stories they shared of …

Summary Of D.R. Horton V. Betsinger, 130 Nev. Adv. Op. 84, Gil Kahn

Nevada Supreme Court Summaries

The Court determined that even when a case is remanded only in order for a trier of fact to determine the amount of punitive damages, NRS 42.005(3) requires that same trier of fact to first determine whether such damages are warranted.

Summary Of Copper Sands Homeowners Ass’N, Inc. V. Flamingo 94, Llc, 130 Nev. Adv. Op. 81, Vincent Godinho

Nevada Supreme Court Summaries

The Court determined that when a third-party defendant prevails in an action and moves for costs pursuant to NRS 18.020, the district court must determine which party (plaintiff or defendant) is adverse to the third-party defendant and allocate the costs award accordingly.

Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon

Articles

This article presents the first systematic theoretical and empirical study of highlow agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before trial, constrains any plaintiff’s recovery to a specified range. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing mutually beneficial speculation. Using claims data from a national insurance company, …

Summary Of Doan V. Wilkerson, 130 Nev. Adv. Op. 48, Kelsey Bernstein

Nevada Supreme Court Summaries

The Court determined two issues: 1) whether the six-month statute of limitations set forth in NRCP 60(b) applies to a motion for relief from a divorce decree, and (2) under what circumstances a marital asset adjudicated in court but omitted from the final divorce decree may be partitioned through a motion for relief from judgment.

European Legal Development: The Case Of Tort: Comparative Studies In The Development Of The Law Of Tort In Europe, Vol 9, Anthony Sebok

Faculty Articles

This review addresses volumes 7-9 of the series Comparative Studies in the Development of the Law of Torts in Europe, edited by John Bell and David Ibbetson and published by Cambridge University Press.

Will There Be A Neurolaw Revolution?, Adam Kolber

Faculty Scholarship

No abstract provided.

Truth Stories: Credibility Determinations At The Illinois Torture Inquiry And Relief Commission, 45 Loy. U. Chi. L.J. 1085 (2014), Kim D. Chanbonpin

UIC Law Open Access Faculty Scholarship

This is the first scholarly Article to investigate the inner workings of the Illinois Torture Inquiry and Relief Commission (“TIRC”). The TIRC was established by statute in 2009 to provide legal redress for victims of police torture. Prisoners who claim that their convictions were based on confessions coerced by police torture can utilize the procedures available at the TIRC to obtain judicial review of their cases. For those who have exhausted all appeals and post-conviction remedies, the TIRC represents the tantalizing promise of justice long denied. To be eligible for relief, however, the claimant must first meet the TIRC’s strict …

Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher

Faculty Articles and Papers

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Scholars’ Supreme Court Amicus Brief In Support Of Neither Party: Petrella V. Metro-Goldwyn-Mayer, Douglas Laycock, Mark P. Gergen, Doug Rendleman

Scholarly Articles

The appeal to the Supreme Court in Petrella v. Metro-Goldwyn-Mayer deals with the equitable defense of plaintiff’s laches before suing for copyright infringement. Laches is unreasonable and prejudicial delay. MGM allegedly violated plaintiff’s copyright repeatedly over a period of many years; the statute of limitations has not run on the most recent violations. Plaintiff argues that laches should never apply to a cause of action with a statute of limitations. Defendant argues that laches should bar all relief if defendant relied on plaintiff’s failure to sue earlier, without having to match defendant’s reliance to the remedies plaintiff seeks.

This scholars’ …

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

An Exploration Of “Non-Economic” Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

Faculty Scholarship

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of …

Contraceptive Sabotage, Leah A. Plunkett

Law Faculty Scholarship

This Article responds to the alarm recently sounded by the American College of Obstetricians and Gynecologists over “birth control sabotage”—the “active interference [by one partner] with [the other] partner’s contraceptive methods in an attempt to promote pregnancy.” Currently, sabotage is not a crime, and existing categories of criminal offenses fail to capture the essence of the injury it does to victims. This Article argues that sabotage should be a separate crime—but only when perpetrated against those partners who can and do get pregnant as a result of having sabotaged sex. Using the principle of self-possession—understood as a person’s basic right …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Public Law At The Cathedral: Enjoining The Government, Michael T. Morley

Faculty Scholarship

No abstract provided.

Enforcing Equality: Statutory Injunctions, Equitable Balancing Under Ebay, And The Civil Rights Act Of 1964, Michael T. Morley

Faculty Scholarship

No abstract provided.

Tort As A Substitute For Revenge, Scott Hershovitz

Book Chapters

In 1872, the Supreme Court of Illinois decided a case called Alcorn v Mitchell. It was not the first litigation between the parties. Some years earlier, Alcorn had sued Mitchell for trespass. That suit did not go well, and at the close of the trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1,000, which was a lot of money back then—depending on how you think about the change in value of money over time, the present day equivalent would range from just …

Secret Consumer Scores And Segmentations: Separating Consumer 'Haves' From 'Have-Nots', Amy J. Schmitz

Faculty Publications

“Big Data” is big business. Data brokers profit by tracking consumers’ information and behavior both on- and offline and using this collected data to assign consumers evaluative scores and classify consumers into segments. Companies then use these consumer scores and segmentations for marketing and to determine what deals, offers, and remedies they provide to different individuals. These valuations and classifications are based on not only consumers’ financial histories and relevant interests, but also their race, gender, ZIP Code, social status, education, familial ties, and a wide range of additional data. Nonetheless, consumers are largely unaware of these scores and segmentations, …

Onlookers Tell An Extraordinary Entity What To Do, Anita Bernstein

Faculty Scholarship

No abstract provided.

Cy Pres In Class Action Settlements, Rhonda Wasserman

Articles

Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”

Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the …

Future Claimants And The Quest For Global Peace, Rhonda Wasserman

Articles

n the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants …

The Costs Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

This isn’t quite a draft yet – it’s a concept paper. You’ll see after the first 10 pages a good bit of text in brackets, which are primarily notes for me, but it’ll give you a sense of the content of those sections. I’d like to talk through the concept – the “duty” to mitigate emotional distress damages and how courts have struggled with it, as a foray into a broader dichotomy that I see in a number of areas of law that suggest an implicit value in “cognitive liberty.” This is a smaller version of a broader book project …

Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert

Faculty Articles

Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …

The Infringement Continuum, Bernard Chao

Sturm College of Law: Faculty Scholarship

For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations, suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after-arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

Three Proposals For Regulating The Distribution Of Home Equity, Ian Ayres, Joshua Mitts

Faculty Scholarship

The Consumer Financial Protection Bureau’s recently-released “qualified mortgage” rules effectively discourage predatory lending but miss an equally important source of systemic risk: low-equity clustering. Specific “volatility-inducing” mortgage terms, when present in a substantial cluster of mortgage contracts, exacerbate macroeconomic risk by increasing the chance that the housing and lending markets will have to absorb a wave of simultaneous defaults after a downturn in housing prices. This Article shows that these terms became prevalent in a substantial proportion of residential mortgages in the years leading up to the home mortgage crisis. In contrast, during the earlier “amortization era” (when mortgagors were …

Surprisingly Punitive Damages, Bert I. Huang

Faculty Scholarship

Damages can add up to super-punitive amounts in unintended ways. To take a textbook example: The Defendant has caused an industrial accident or other mass tort. Plaintiff 1 sues, winning punitive damages based on the reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. If each of these punitive awards is directed at the same general badness of that original act, then these punishments are redundant. When such redundancy occurs, even damages that are meant to be punitive can reach surprisingly …

Concurrent Damages, Bert I. Huang

Faculty Scholarship

Imagine that a hacker is working for a university official secretly spying on faculty members – say, to find out who has been leaking information to the press about internal disciplinary matters. The injuries to a given victim of the hacking might follow a classic learning curve: The first few intrusions into her e-mail account reveal a storehouse of personal secrets, but further break-ins yield less and less new information. One might say there is diminishing marginal harm.

There is no such leveling off, however, in the compensation that would be awarded to that victim. The electronic privacy law …