Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 10 of 10
Full-Text Articles in Law
Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet
Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet
Faculty Scholarship
Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …
Mutual Optimism And Risk Preferences In Litigation, Keith N. Hylton
Mutual Optimism And Risk Preferences In Litigation, Keith N. Hylton
Faculty Scholarship
Why do some legal disputes fail to settle? From a bird’s eye view, the literature offers two categories of reasons. One consists of arguments based on informational disparities. The other consists of psychological arguments. This paper explores the psychological theory. It presents a model of litigation driven by risk preferences and examines the model’s implications for trials and settlements. The model suggests a foundation in Prospect Theory for the Mutual Optimism model of litigation. The model’s implications for plaintiff win rates, settlement patterns, and informational asymmetry with respect to the degree of risk aversion are examined.
What Is A Fair Price For Objector Blackmail? Class Actions, Objectors, And The 2018 Amendments To Rule 23, Elizabeth Cabraser, Adam N. Steinman
What Is A Fair Price For Objector Blackmail? Class Actions, Objectors, And The 2018 Amendments To Rule 23, Elizabeth Cabraser, Adam N. Steinman
Faculty Scholarship
As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …
Toward A Regulatory Framework For Third-Party Funding Of Litigation, Keith N. Hylton
Toward A Regulatory Framework For Third-Party Funding Of Litigation, Keith N. Hylton
Faculty Scholarship
Because third-party funding and sales of legal rights are equivalent in terms of their economics, I examine arrangements in which third-party sales of legal rights are permitted today; those arrangements include waiver, subrogation, and settlement agreements. These existing arrangements provide valuable lessons for the appropriate regulatory approach to third-party financing of litigation.
The Patent Litigation Explosion, James Bessen, Michael J. Meurer
The Patent Litigation Explosion, James Bessen, Michael J. Meurer
Faculty Scholarship
This Article provides the first look at patent litigation hazards for public firms during the 1980s and 1990s. Litigation is more likely when prospective plaintiffs acquire more patents, when firms are larger and technologically close and when prospective defendants spend more on research and development ("R&D"). The latter suggests inadvertent infringement may be more important than piracy. Public firms face dramatically increased hazards of litigation as plaintiffs and even more rapidly increasing hazards as defendants, especially for small public firms. The increase cannot be explained by patenting rates, R&D, firm value or industry composition. Legal changes are the most likely …
Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee
Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee
Faculty Scholarship
Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …
Trouble With All-Or-Nothing Settlements, The Symposium: Aggregate Justice: Perspectives Ten Years After Amchem And Ortiz, Howard M. Erichson
Trouble With All-Or-Nothing Settlements, The Symposium: Aggregate Justice: Perspectives Ten Years After Amchem And Ortiz, Howard M. Erichson
Faculty Scholarship
When defendants settle litigation involving multiple plaintiffs, they often insist that they will settle only if they obtain releases from all or nearly all of the plaintiffs in the group. If a defendant is going to spend money to resolve claims, it prefers to take its hit and move on. As one experienced settlement administrator puts it, when a defendant approaches plaintiffs' lawyers to discuss the settlement of a mass dispute, the "subject might be broached in various terms, [but] the underlying message is the same-'How much will it cost us to get out of all of these cases?" A …
Lessons For Patent Policy From Empirical Research On Patent Litigation, Michael J. Meurer, James Bessen
Lessons For Patent Policy From Empirical Research On Patent Litigation, Michael J. Meurer, James Bessen
Faculty Scholarship
This Article reviews empirical patent litigation research to reveal patent policy lessons. First, the Article presents facts about patent litigation. Next, it analyzes the patent premium. Patent litigation research reveals little about the magnitude of the patent premium, but the research reveals the strategies firms use to capture the patent premium and the patent policy instruments that determine the patent premium. Next, the Article evaluates the patent prosecution process and notes that making efforts to refine a patent application can affect the value of the patent. The Article then identifies reforms for improving PTO performance. Finally, the Article discusses policy …
Welfare Implications Of Costly Litigation Under Strict Liability, Keith N. Hylton
Welfare Implications Of Costly Litigation Under Strict Liability, Keith N. Hylton
Faculty Scholarship
This article examines a model of strict liability with costly litigation and presents conditions under which (1) potential injurers take optimal precautions, (2) increasing the cost of litigation enhances precaution and social welfare, (3) the optimal level of liability exceeds the compensatory level, and (4) increasing the rate of settlement enhances social welfare. The results have implications for controversies surrounding fee shifting, optimal damage awards (e.g., punitive damages), and the social desirability of settlement. The most striking implication is that fee shifting in favor of prevailing plaintiffs is socially desirable in low-transaction-cost settings.
Mass Tort Litigation And Inquisitorial Justice, Howard M. Erichson
Mass Tort Litigation And Inquisitorial Justice, Howard M. Erichson
Faculty Scholarship
In the past decade, settlement class actions have become increasingly popular in mass tort litigation, having been used successfully in cases such as the Dalkon Shield litigation, the Bjork-Shiley heart valve litigation, and the orthopedic bone screw litigation. Although the Supreme Court's opinion in Amchem has engendered some confusion over the continued viability of mass tort settlement class actions, it appears that such settlements remain a dominant approach to resolving mass tort lawsuits. With increasing frequency, plaintiffs and defendants come to court holding hands, and courts must launch their own vigorous inquiries into the merits of the parties' proffered settlement. …