Law Commons^™

A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral

Notre Dame Law Review Reflection

Sampling from the actual portfolio of a leading third-party litigation financier, this Essay demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments” may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees—even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiffs’ attorneys, often in the same case.

The overview of the business strategy of appellate financing contributes to a larger theme: the role and impact of …

Adopting The Gay Family, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, David T. Rohwedder, Robert H. Snyder, Morgan E. Duncan, Joseph M. Colwell, Christopher B. Mcdaniel

Mercer Law Review

This Article addresses several significant opinions issued and legislation passed during the survey period of this publication for the Georgia civil trial practitioner.

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …

Litigation Trolls, W. Bradley Wendel

Cornell Law Faculty Working Papers

Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are …

Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs From Embarrassing Exposure, Andrea A. Curcio

Andrea A. Curcio

No abstract provided.

Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore

Clark D. Cunningham

No abstract provided.

The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey

Russell D. Covey

No abstract provided.

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

Russell D. Covey

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 …

Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey

Russell D. Covey

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the …

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Russell D. Covey

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …

Deadly Waiting Game: An Environmental Justice Framework For Examining Natural And Man-Made Disasters Beyond Hurricane Katrina [Abstract], Robert D. Bullard

Robert D Bullard

Presenter: Robert D. Bullard, Ph.D., Professor of Sociology, Clark Atlanta University 1 page.

For Every Wrong, A Remedy: A Narrow Interpretation Of The Locomotive Inspection Act's Preemptive Scope In Asbestos Cases, Andrew Malzahn

Hamline Law Review

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State Action On Appeal: Parker Immunity And The Collateral Order Doctrine In Antitrust Litigation, Jason Kornmehl

Seattle University Law Review

The collateral order doctrine is perhaps the most significant exception to the general rule that only final judgments are appealable. The doctrine is particularly important in antitrust litigation when a defendant asserts state action immunity, often referred to as Parker immunity. However, the circuit courts have struggled with the question of whether a denial of Parker immunity is immediately appealable as a collateral order. This unsettled procedural issue is further complicated by the fact that the substantive law on Parker immunity differs depending on the entity asserting state action. This Article argues that a governmental entity that is deemed part …

Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow

Curtis E.A. Karnow

Articles, books, and other online resources relating to expert testimony with a specific focus on problems with peer review, bad science, and statistics

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

Articles

Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as …

Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz

Educational Leadership Faculty Publications

Financial resources for public education are increasingly scarce, and district leaders at all levels continue to struggle to maintain adequate levels of financial resources for their students and programs using complex funding formulas unique to their own jurisdictions. To help educators and education stakeholders better understand the dimensions of paying for public education, we begin with an overview of the historical development of school finance litigation that has shaped the funding mechanisms in most jurisdictions. The next section highlights developments in four representative jurisdictions from the funding formulas currently available in ASBO International’s Funding Formula Library. The library, available on …

Accurately Instructed In The Law: Finding State Jury Instructions, Jan B. Bissett, Margi Heinen

Library Scholarly Publications

No abstract provided.

Business And Commercial Litigation In Federal Courts (3d Ed.), Edited By Robert L. Haig, James M. Wicks

St. John's Law Review

(Excerpt)

The BCL is comprehensive, up-to-date, and very user-friendly. The practice aids, strategic considerations, checklists, and forms all make this set of books a "must-have" for every business litigator who is or will be going to federal court. Even as law libraries seem to be moving toward cutting book subscriptions, if one were to subscribe to only a single set of practice-based books, this should be it.

The Roberts Court And Securities Class Actions: Reaffirming Basic Principles, Eric Alan Isaacson

Akron Law Review

Part II of this Article presents an overview of Roberts Court decisions concerning class litigation...The Article’s primary focus, however, is on a trilogy of Roberts Court decisions concerning class certification in open-market securities fraud cases, where fraudulent statements allegedly manipulated the price of securities traded in the open market: Erica P. John Fund, Inc. v. Halliburton, Co. (“Halliburton I”), Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, and Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”)...Rather than jumping directly into a discussion of the three decisions, which have been extraordinarily good news for investors seeking to prosecute …

The Practical Approach: How The Roberts Court Has Enhanced Class Action Procedure By Strategically Carving At The Edges, Paul G. Karlsgodt, Dustin M. Dow

Akron Law Review

This Article explores the practical impacts of the Court’s class-action jurisprudence from 30,000 feet, observing that, with some notable exceptions, the Court has nibbled away at the rough edges of class-action procedure while passing on chances to dictate more drastic reform. Part II is a chronological summary of notable Roberts Court cases that have come to define its approach toward class litigation. Perhaps surprisingly, the Court eased its way to this point, neglecting to grant certiorari in any significant class-action cases for the first four years after the swearing in of Chief Justice Roberts in 2005. That changed in 2009 …

The New Class Action Federalism, Mark Moller

Akron Law Review

Because separation of powers is “an aspect of federalism”10—a mechanism through which federalism is protected—this idea helps connect the Court’s “happenstantial” class action federalism with constitutional principle. This Article develops this idea in three parts. Part I briefly summarizes Richard Marcus’s account of CAFA’s potential to catalyze a kind of hyper-aggressive mass tort nationalism. Part II then reviews how the Roberts Court’s stinting approach to class actions is, to the contrary, throwing a lifeline to federalism. Part III ends by showing how Bayer points to a link, so far undeveloped in the case law, between that stinting approach and the …

The Roberts Court And The End Of The Entity Theory, Andrew J. Trask

Akron Law Review

This Article traces the shift away from the entity theory. It begins with a discussion of the various academic treatments of the entity model, from its first formulation years ago to the more radical “trust device” theories advanced today. It then looks at the various ways in which implicitly adopting the entity model has affected various rulings in class action litigation. Finally, it discusses how the 9–0 opinions in Taylor v. Sturgell, Bayer Corp. v. Smith, and Standard Fire Insurance Co. v. Knowles (buttressed by Justice Elena Kagan’s dissent in Symczyk v. Genesis Health Co.) have made it clear that …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …

The Class Abides: Class Actions And The "Roberts Court", Elizabeth J. Cabraser

Akron Law Review

This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari …

Front-Loading, Avoidance, And Other Features Of The Recent Supreme Court Class Action Jurisprudence, Richard D. Freer

Akron Law Review

This Article discusses each of the thirteen Supreme Court decisions with the goal of drawing at least tentative conclusions for their impact on federal class practice. The thirteen decisions may be placed into five groups. Only three of the cases directly involve the general interpretation and application of Rule 23, while the other ten fall into four particular substantive areas. Reflecting these divisions, this Article proceeds in five parts. Part I discusses the three cases directly interpreting Rule 23. Part II addresses the three decisions involving securities classes brought under Rule 10b-5. Part III discusses the three decisions involving the …

Back To Class: Lessons From The Roberts Court Class Action Jurisprudence, Bernadette Bollas Genetin

Akron Law Review

This symposium issue on The Class Action After a Decade of Roberts Court Decisions provides perspectives on how the class action has fared under persistent Supreme Court scrutiny. Over the past ten years, the Roberts Court has repeatedly returned to questions concerning class action litigation...This ten-year retrospective on the Roberts Court’s class action decisions provides a timely opportunity to reflect on the Supreme Court’s institutional role in construing the Federal Rules and in creating class action policy through decisions construing Rule 23...The contributors to this symposium focus on the Roberts Court class action decisions as a whole; the Roberts Court’s …

Wrongful Death Actions Under Section 1983, Martin A. Schwartz, Steven Steinglass, Richard Emery, Ilann Margalit Maazel

Martin A. Schwartz

No abstract provided.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.