Law Commons^™

Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

A recent study of appellate outcomes reveals that defendants succeed significantly more often than plaintiffs on appeal from civil trials-especially from jury trials.

Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard O. Lempert, Shari Seidman Diamond, Valerie P. Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon M. Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz

Cornell Law Faculty Publications

This brief addresses the issue of jury performance and jury responses to expert testimony. It reviews and summaries a substantial body of research evidence about jury behavior that has been produced over the past quarter century. The great weight of that evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or that they are pro-plaintiff, anti-defendant, and anti-business.

The Petitioners and amici on behalf of petitioners make a number of overlapping, but empirically unsupported, assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluation …

What's Half A Lung Worth? Civil Jurors' Accounts Of Their Award Decision Making, Nicole L. Mott, Valerie P. Hans, Lindsay Simpson

Cornell Law Faculty Publications

Jury awards are often criticized as being arbitrary and excessive. This paper speaks to that controversy, reporting data from interviews with civil jurors' accounts of the strategies that juries use and the factors that they consider in arriving at a collective award. Jurors reported difficulty in deciding on awards, describing it as "the hardest part" of jury service and were surprised the court did not provide more guidance to them. Relatively few jurors entered the jury deliberation room with a specified award figure in mind. Once in the deliberation room, however, they reported discussing a variety of relevant factors such …

A Residual Damages Right Against The Irs: A Cure Worse Than The Disease, Steve R. Johnson

Scholarly Publications

Tax scholarship commonly has emphasized the substantive rules of tax liability, according less than due attention to tax procedure. Recently, however, this imbalance has been partly redressed as a result of the taxpayer rights movement. The major legislative products of the movement have been the Taxpayer Bill of Rights (TBORl) in 1988, the Taxpayer Bill of Rights 2 (TBOR2) in 1996,and the Taxpayer Bill of Rights (TBOR3) in 1998. Congress currently is considering a fourth installment in the series. These measures – especially TBOR3 – have provoked considerable useful commentary from both practitioners and academics.

Nonetheless, much work remains to …

Justice Delayed?: An Empirical Analysis Of Civil Case Disposition Time, Michael Heise

Cornell Law Faculty Publications

This Article addresses the need to understand better our civil justice system by exploring possible determinants of disposition time for civil cases that reach a jury trial. This study uses one year of civil jury case outcomes from 45 of the nation's 75 most populous counties and identifies locale as one important variable, along with certain case types, results, and characteristics. An empirically moored understanding of the causes of case disposition time will assist public policy and reform efforts that seek to make civil justice speedier and, as a consequence, more inexpensive and just. Findings from this study call into …

Evaluating Scientific And Forensic Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood offers a critique of the present state of scientific and forensic evidence. In the context of discussing four challenges to the field, the author arms the practitioner with strategies and tactics for making effective use of scientific and forensic testimony.

Permitting Jury Discussions During Trial: Impact Of The Arizona Reform, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

A field experiment tested the effect of an Arizona civil jury reform that allows jurors to discuss evidence among themselves during the trial. Judges, jurors, attorneys, and litigants completed questionnaires in trials randomly assigned to either a Trial Discussions condition, in which jurors were permitted to discuss the evidence during trial, or a No Discussions condition, in which jurors were prohibited from discussing evidence during trial according to traditional admonitions. Judicial agreement with jury verdicts did not differ between conditions. Permitting jurors to discuss the evidence did affect the degree of certainty that jurors reported about their preferences at the …

Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino

Cornell Law Faculty Publications

No abstract provided.

The Timing Of Opinion Formation By Jurors In Civil Cases: An Empirical Examination, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman

Cornell Law Faculty Publications

The question of when and how jurors form opinions about evidence presented at trial has been the focus of seemingly endless speculation. For lawyers, the question is how to capture the attention and approval of the jury at the earliest possible point in the trial. Their goal is to maximize the persuasiveness of their arguments--or at least to minimize the persuasiveness of those of the opposing side. Judges, in contrast, are more concerned about prejudgment. They regularly admonish jurors to suspend judgment until after all the evidence has been presented and after the jurors have been instructed on the law. …

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …

Statutory Interpretation, Property Rights, And Boundaries: The Nature And Limits Of Protection In Trademark Dilution, Trade Dress, And Product Configuration Cases, Gary Myers

Faculty Publications

This article, however, takes the view that the basic landscape in trademark law is unlikely to change in the near future. Congress has only recently enacted the Trademark Dilution Act, and there seems to be little movement to amend it dramatically, let alone repeal it. There have been several recently enacted amendments to the Lanham Act addressing functionality that make great sense and are consistent with the principles suggested here, as will be discussed below. Moreover, the Supreme Court in Two Pesos, Qualitex, Park ‘n’ Fly, and Samara has recently set forth rules that will allow trade dress claims to …

The False Claims Act And The English Eradication Of Qui Tam Legislation, J. Randy Beck

Scholarly Works

Congress amended the False Claims Act in 1986 to encourage qui tam enforcement of the statute, which penalizes submission of false claims to the federal government. A qui tam statute authorizes a private citizen "informer" to file suit on behalf of the government for collection of a statutory forfeiture. A successful informer receives a share of the recovery. Qui tam enforcement came from England, where it served for centuries as the principal means of enforcing a wide range of statutes. England moved away from qui tam enforcement in the 1800s and abolished it altogether in 1951. In this Article, Professor …

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

UF Law Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …

The Future Of Civil Justice Reform And Empirical Legal Scholarship: A Reply, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Evidence: 1998-1999 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Civil Justice Delay And Empirical Data: A Response To Professor Heise, Carl W. Tobias

Law Faculty Publications

One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator …

The Futures Problem, Geoffrey C. Hazard Jr.

All Faculty Scholarship

Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem and Ortiz appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about …

Minnesota Court Of Appeals Hears Oral Argument Via Interactive Teleconferencing Technology, Edward Toussaint

Faculty Scholarship

The Minnesota Court of Appeals is dedicated to providingaffordable access to the appellate process. Access to theappellate process is central to our vision. In order to promote this vision, the Minnesota Court ofAppeals has taken the initiative to implement Interactive VideoTeleconferencing ("IVT"). This essay will discuss the historybehind this decision, the mechanics of its implementation, andthe benefits and challenges of its application to the appellateprocess.

Mock Trial Executive Board, 2000-2001, Kellie Casey Monk

Materials from All Student Organizations

No abstract provided.

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.

The Scope Of 'High Crimes And Misdemeanors' After The Impeachment Of President Clinton, Neil J. Kinkopf

Faculty Publications By Year

Constitutional theorists have begun focusing a great deal of attention on constitutionalism outside the judiciary. As Professor Neal Katyal points out in his insightful paper, the impeachment and trial of President Clinton provide an outstanding opportunity to reflect upon the practice of constitutionalism outside the courts. During these episodes, the House of Representatives and the Senate confronted numerous constitutional questions, but rarely resolved them on the basis of an identifiable construction of the Constitution's meaning. There is, however, at least one important question of constitutional interpretation that the House of Representatives must be understood to have resolved: the scope of …

Expert Qualifications: Traps For The Unwary, Paul C. Giannelli

Faculty Publications

No abstract provided.

Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky

Scholarly Works

No abstract provided.

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …

Coattail Class Actions: Reflections On Microsoft, Tobacco, And The Mixing Of Public And Private Lawyering In Mass Litigation , Howard M. Erichson

Faculty Scholarship

Ask anyone who follows legal news to name the two biggest litigation news stories in the United States at the start of the twenty-first century, and they will answer without blinking: Microsoft and tobacco. The Microsoft litigation, they will tell you, claims a place in the pantheon of antitrust landmarks that includes Standard Oil, Alcoa, and AT&T. The tobacco litigation is the most massive in a string of mass torts including asbestos, Dalkon Shield, and breast implants; it is arguably the most important public health matter ever litigated. Microsoft and tobacco each fit so well and so interestingly in their …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

Scholarly Works

The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.