Law Commons^™

Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer

Faculty Scholarship

It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak …

Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman

Articles, Book Chapters, & Popular Press

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were …

The Dangers Of Deference: International Claim Settlement By The President, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

During the final months of the Clinton administration, the State Department entered into a trio of unprecedented international agreements with France (the "French Agreement"), Germany (the "German Agreement"), and Austria (the "Austrian Agreement"). These "sole" executive agreements, designed to resolve litigation pending in the U.S. courts that arose out of World War II and the Holocaust, were made without Senate ratification(as required for a treaty) or congressional authorization (as in a congressional- executive agreement). Although executive branch settlement of claims without Senate or congressional approval has a long history, these executive agreements mark an important departure from prior practice by …

The Civil Rights Era: A Look Back By Those Who Lived And Litigated Through It, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

An Overview Of The Sarbanes-Oxley Act And Its Implications For Attorneys, Jeffrey W. Stempel

Scholarly Works

On July 30, 2002, President Bush signed the Sarbanes-Oxley Act of 2002, H.R. 3763, well-publicized in the press as a legislative response to the perceived excesses of corporate America: Enron; WorldCom; Tyco; Global Crossing, etc.

The Sarbanes-Oxley Act of 2002 contains an array of provisions affecting lawyers as professionals serving businesses and contains one provision that will clearly impact corporate counsel in the ethical discharge of their duties. Section 307 of the Act and the recently released Proposed Roles of the Securities Exchange Commission regarding lawyer duties and implementation of Section 307 require counsel to go "up the ladder," to …

Secret Settlements And Practice Restrictions Aid Lawyer Cartels And Cause Other Harms, Susan P. Koniak, David Dana

Faculty Scholarship

In this article, the authors argue that the use of secrecy agreements and practice restrictions in settlement contracts should be prohibited not only by the ethics rules, but also by criminal and civil law. The authors begin by discrediting four arguments that are traditionally employed to support the use of secrecy agreements and practice restrictions. They then argue that the use of secrecy agreements and practice restrictions generate substantial costs, but do not secure any legitimate benefits that could not be attained by other, less costly means. The authors also explain how the problems caused by secrecy agreements and practice …

Assessing Sovereign Interests In Cross-Border Discovery Disputes: Lessons From Aerospatiale, Hannah Buxbaum

Articles by Maurer Faculty

The Hague Evidence Convention addresses a particular kind of jurisdictional conflict: the conflict between one nation's issuance of extraterritorial discovery orders and another nation's right to govern discovery activity taking place within its territory. The particular mechanisms that the Convention establishes for use in cross-border discovery proceedings, and the compromises between civil-law and common-law procedures for evidence gathering that it embodies, were effected with that system goal in mind. In Aerospatiale, the Supreme Court considered the scope of the Convention's application, addressing the interaction of Convention procedures and pre-existing federal rules on evidence gathering. As portions of the decision make …

Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley

Articles by Maurer Faculty

No abstract provided.

Some Steps Between Attitudes And Verdicts, Phoebe C. Ellsworth

Book Chapters

Most research that has attempted to predict verdict preferences on the basis of stable juror characteristics, such as attitudes and personality traits, has found that individual differences among jurors are not very useful predictors, accounting for only a small proportion of the variance in verdict choices. Some commentators have therefore concluded that verdicts are overwhelmingly accounted for by "the weight of the evidence," and that differences among jurors have negligible effects. But there is a paradox here: In most cases the weight of the evidence is insufficient to produce firstballot unanimity in the jury (Hans & Vidmar, 1986; Hastie, Penrod, …

Turf Struggles: Land, Sovereignty, And Sovereign Immunity, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Joseph Hodges Choate (1832-1917), Janet Butler Munch

Publications and Research

Joseph Hodges Choate (1832-1917) was a trial lawyer and diplomat.

Clear Sailing Agreements: A Special Form Of Collusion In Class Action Settlements, William D. Henderson

Articles by Maurer Faculty

A clear sailing agreement (or clause) is a compromise in which a class action defendant agrees not to contest the class lawyer's petition for attorneys' fees. This Article argues that clear sailing provisions often facilitate collusive settlements in cases involving non-pecuniary relief or claims-made common funds that return all unclaimed monies to the defendant. Because these types of settlements present difficult valuation problems, trial courts lack a clear benchmark for calculating attorneys' fees. Defendants and class can exploit this uncertainty by presenting an inflated settlement value to the court (to justify higher attorneys' fees) while simultaneously reducing the true cost …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Defeating Class Certification In Securities Fraud Actions, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

How Bad Law Made A Hard Case Easy: Nevada V. Hicks And The Subject Matter Jurisdiction Of Tribal Courts, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

Articles

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …

How Employment-Discrimination Plaintiffs Fare In The Federal Courts Of Appeals, Kevin M. Clermont, Theodore Eisenberg, Stewart J. Schwab

Cornell Law Faculty Publications

Employment-discrimination plaintiffs swim against the tide. Compared to the typical plaintiff, they win a lower proportion of cases during pretrial and after trial. Then, many of their successful cases are appealed. On appeal, they have a harder time in upholding their successes, as well in reversing adverse outcome.

This tough story does not describe some tiny corner of the litigation world. Employment-discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent.

In this article, we use official government data to describe the appellate phase of this …

Lawyer Ethics On The Lunar Landscape Of Asbestos Litigation, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle

Cornell Law Faculty Publications

During jury selection, many courts adopt a minimal approach to voir dire questions, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. This Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.

Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Brewer v. Jim's Concrete of Brevard, 538 U.S. 691 (2003). The author expected the Court to address the issue of whether the language of the Fair Labor Standards Act providing that "an action . . . may be maintained in any federal or state court" constitutes an express provision prohibiting removal to federal court when the plaintiff has chosen to maintain its lawsuit in state court.

New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Journal Articles

Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued final regulations …

Is There A Role For Lawyers In Preventing Future Enrons?, Jill E. Fisch, Kenneth M. Rosen

All Faculty Scholarship

Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer’s role by requiring covered attorneys to “report up” evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to “report up” subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

Exhaustion Under The Prison Litigation Reform Act: The Consequence Of Procedural Error, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.

Nullificatory Juries, Kaimipono David Wenger, David A. Hoffman

All Faculty Scholarship

In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to …

Civil Rights Litigation: The Current Paradox, David Rudovsky

All Faculty Scholarship

No abstract provided.

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

All Faculty Scholarship

The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts …

Litigation Narratives: Why Jensen V. Ellerth Didn't Change Sexual Harassment Law, But Still Has A Story Worth Telling, Melissa Hart

Publications

No abstract provided.

A Taxing Settlement, Hanoch Dagan, James J. White

Articles

The following essay is based on the talk "Government, Citizens, and Injurious Industries: A Case Study of the Tobacco Litigation," delivered by Hanoch Dagan last May to the Detroit Chapter of the International Association of Jewish Lawyers and Jurists, and on the article "Governments, Citizens, and Injurious Industries," by Dagan and James J. White, '62, which appeared in 75.2 New York University Law Review 254-428 (May 2000). The authors hold conflicting view on the underlying issue of this topic: tobacco company product liability. Professor Dagan holds the position that tobacco companies are liable for harm done by their products; Professor …

The Reliability Of The Administrative Office Of The U.S. Courts Database: An Initial Empirical Analysis, Theodore Eisenberg, Margo Schlanger

Articles

Researchers have long used federal court data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data include information about every case filed in federal district court and every appeal filed in the twelve nonspecialized federal appellate courts. Much research using the AO data spans subject matter areas, and includes articles on appeals, caseloads and case-processing times, case outcomes, the relation between demographics and case outcomes, class actions, diversity jurisdiction, and litigation generally. Other research using the AO data covers particular subject matter areas, such as inmate cases, contract cases, corporate litigation, …