Law Commons^™

Special Incentives To Sue, Margaret H. Lemos

Faculty Scholarship

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions--For The Law And For The Litigants, Scott A. Moss

Publications

Each of the Supreme Court's high school student speech cases reflected the social angst of its era. In 1965's Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier allowed the censorship of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the rise of reality television …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

The Impact Of Third-Party Financing On Transnational Litigation, Cassandra Burke Robertson

Faculty Publications

Third-party litigation finance is a growing industry. The practice, also termed “litigation lending,” allows funders with no other connection to the lawsuit to invest in a plaintiff’s claim in exchange for a share of the ultimate recovery. Most funding agreements have focused on domestic litigation in Australia, the United Kingdom, and the United States. However, the industry is poised for growth worldwide, and the recent environmental lawsuit brought by Ecuadorian plaintiffs against Chevron demonstrates that litigation funding is also beginning to play a role in transnational litigation.

This article, prepared for a symposium on “International Law in Crisis,” speculates about …

The Elephantine Google Books Settlement, James Grimmelmann

Cornell Law Faculty Publications

The genius - some would say the evil genius - of the proposed Google Books settlement was the way it fuses legal categories. The settlement raised important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement was more than the sum of the individual issues it raised. These “issues” were really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.

In this essay, I argue for the critical importance of …

Securities Class Actions As Public Law, James D. Cox

Faculty Scholarship

The Political Economy of Fraud on the Market provides a wide-ranging criticism of and thoughtful reforms for securities class actions....However, both their critique of contemporary class actions and their model of the reforms they propose leave unexamined a good many matters relevant to both the criticism and reform of securities class actions....Bratton and Wachter earn high marks for being less passionate and much more thoughtful than others in the chorus calling for reform; indeed, their observations are among the most thoughtful to be found in this area. Nonetheless, their analysis is incomplete in many important areas, and in addition to …

Whose Claim Is This Anyway? Third Party Litigation Funding, Maya Steinitz

Faculty Scholarship

Third party litigation funding, or litigation finance, is a new industry composed of institutional investors who invest in litigation by providing finance in return for an ownership stake in a legal claim and a contingency in the recovery. Its emergence has been recognized as one of the most significant developments in civil litigation today. It will transform access to justice, and affect numerous areas of the law including corporate law, torts, intellectual property, environmental law, employment law and international law. Hailing from the U.K. and Australia, the practice is de facto prohibited in the U.S., largely through ethical rules disallowing …

The Political Economy Of Fraud On The Market, William W. Bratton, Michael L. Wachter

All Faculty Scholarship

No abstract provided.

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Journal Articles

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

All Faculty Scholarship

In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …

The Price Of Pay To Play In Securities Class Actions, Adam C. Pritchard, Stephen J. Choi, Drew T. Johnson-Skinner

Articles

We study the effect of campaign contributions to lead plaintiffs—“pay to play”—on the level of attorney fees in securities class actions. We find that state pension funds generally pay lower attorney fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity, and larger funds negotiate for lower fees. This differential disappears, however, when we control for campaign contributions made to offcials with infuence over state pension funds. This effect is most pronounced when we focus on state pension funds that receive the largest campaign contributions and that associate repeatedly as lead …

Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

We review the extensive body of studies relying on jurors' self-reports in interviews or questionnaires, with a focus on potential threats to validity for researchers seeking to answer particularly provocative questions such as the influence of race in jury decision-making. We then offer a more focused case study comparison of interview and questionnaire data with behavioral data in the domain of race and juror decision-making. Our review suggests that the utility of data obtained from juror interviews and questionnaire responses varies considerably depending on the question under investigation. We close with an evaluation of the types of empirical questions most …

A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow

Articles

Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.

Judges' Gender And Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions, Pat K. Chew

Articles

This article surveys the emerging empirical research on the relationship between the judges' gender and the results in employment discrimination cases.

Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew

Articles

This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.

The Rome I Regulation Rules On Party Autonomy For Choice Of Law: A U.S. Perspective, Ronald A. Brand

Articles

This chapter was presented at a conference in Dublin on the (then) new Rome I Regulation of the European Union in the fall of 2009. It contrasts the Rome I rules on party autonomy with those in the United States. In particular, it considers the rules in the Rome I Regulation that ostensibly protect consumers by discouraging party agreement on a pre-dispute basis to the law governing a consumer contract. These rules are compared with the absence of private international law restrictions on choice of forum and choice of law in the United States, even in consumer contracts. The result …

Regulating The Science Of Forensic Evidence: A Broken System Requires A New Federal Agency, Jessica D. Gabel, Ashley D. Champion

Faculty Publications By Year

Professor Gabel and Ms. Champion agree with Mr. Goldstein's argument that serious validity and reliability problems plague forensic science, but, using the recent Troy Davis case in Georgia as an illustration, they argue for federal rather than state oversight. Gabel and Champion assert that many states lack the funding to construct an adequate system and that the fragmentation caused by different state systems would be a significant impediment to reform. They suggest a federal agency that, like the Environmental Protection Agency, would set minimum standards but allow states to experiment with enhanced regulation.

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Faculty Publications By Year

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …

Combining Forces: The Joint Defense Agreement In Civil Litigation, Stephen Messer

Stephen Messer

From day one of law school aspiring lawyers are taught that information shared in confidence between a lawyer and his client is confidential. Although all lawyers are well aware of this, surprisingly few know that conversations with a client and someone else's lawyer can also be privileged. This is what happens when a joint defense agreement is created; Joint defense agreements extend the attorney client privilege throughout the entire defense camp in cases where multiple defendants and their counsel have common interests in the litigation. This often overlooked, yet highly effective legal strategy may serve as a valuable tool for …

Foreign Official Immunity After Samantar, Chimene I. Keitner

Chimene I Keitner

The Politics Of Corporate Alien Tort Cases, Chimene I. Keitner

Chimene I Keitner

No abstract provided.

Requirements Of A Valid Islamic Marriage Vis-À-Vis Requirements Of A Valid Customary Marriage In Nigeria, Olanike Sekinat Odewale Mrs

Olanike Sekinat Adelakun

The Rise Of U.S. Food Sustainability Litigation, Stephanie Tai

Stephanie Tai

This article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation: challenges to CAFOs and challenges to the use of genetically modified organisms (GMOs) in the food system. These areas were chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.

The article begins by describing the sustainable food movement, including how the movement fits in with factors that sociologists use to …

Grading The Graders And Reforming The Reform: An Analysis Of The State Of Public Education Ten Years After No Child Left Behind, Jonathan C. Augustine, Craig M. Freeman

Jonathan C. Augustine

While Effusive, "Conclusory" Is Still Quite Elusive: The Story Of A Word, Iqbal, And A Perplexing Lexical Inquiry Of Supreme Importance, Donald J. Kochan

Donald J. Kochan

The meaning of the word “conclusory” seems really, quite elusory. Conclusory is a widespread, common, and effusive word in the modern legal lexicon. Yet you would not necessarily know that by looking through many dictionaries. “Conclusory” has been a late comer to the pages of most dictionaries. Even today, not all dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. Yet the word “conclusory” has taken center stage in the procedural plays of civil litigation with …

Class Action In Mexico, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

In April 2011 the Mexican Parliament approved a legislative package that regulates class actions. The amended laws are six: (1) Federal Code of Civil Proceedings; (2) Federal Civil Code; (3) Federal Law of Economic Competence; (4) Federal Law of Consumer’s Protection; (4) Organic Law of the Federal Judicial Power; (5) General Law of Ecological Equilibrium and Environmental Protection; and (6) Law of Protection to the User of Financial Services. On August 30th 2011, the Federal Official Gazette published this amendment to the federal law.

Procedimiento De Acciones Colectivas. Comunicación A Consumidores, Derecho De Exclusión Voluntaria Y Cosa Juzgada., Gabriel Martinez Medrano

Gabriel Martinez Medrano

Comentario a la Resolución de la Cámara en lo Contencioso Administrativo y Tributario de la Ciiudad Autónoma de Buenos Aires, Sala II.