Law Commons^™

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

The Standing Of Article Iii Standing For Data Breach Litigants: Proposing A Judicial And A Legislative Solution, Devin Urness

Vanderbilt Law Review

Data breaches are not going away. Yet victims still face uncertainty when deciding whether and where to file cases against companies or other institutions that may have mishandled their information. This is especially true if the victims have not yet experienced a financial harm, like identity theft, as a result of a data breach. Much of the uncertainty revolves around the standing doctrine and the Supreme Court’s guidance (or lack thereof) on what constitutes a substantial risk of harm sufficient to establish an injury in fact. Federal circuit courts have come to divergent results in data breach cases based on …

Lead Plaintiff Incentives In Aggregate Litigation, Charles R. Korsmo, Minor Myers

Vanderbilt Law Review

The lead plaintiff role holds out considerable promise in promoting the deterrence and compensation goals of aggregate litigation. The prevailing approach to compensating lead plaintiffs, however, provides no real incentive for a lead plaintiff to bring claims on behalf of a broader group. The policy challenge is to induce sophisticated parties to press claims not in their individual capacity but instead in a representative capacity, conferring a positive externality on all class members by identifying attractive claims, financing ongoing litigation, and managing the work of attorneys. We outline what an active and engaged lead plaintiff could add to the civil …

Disclosing Prosecutorial Misconduct, Jason Kreag

Vanderbilt Law Review

Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the criminal justice system. Commentators have responded by proposing a range of reforms to increase Brady compliance. Yet these reforms largely ignore the need to remedy the harms from past Brady violations. Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors'Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure because of Brady misconduct. This Article proposes a new remedy …

Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm

Vanderbilt Law Review

First, we have a long way to go to educate judges about the benefit of active judicial management of the discovery process and the proportionality requirement. Second, just telling judges to "go forth and actively manage" without showing them concrete ways to do it in realistic case settings is not going to be effective. I am happy to report that thanks to the hard work of Judge Jeremy Fogel, director of the Federal Judicial Center, the educational programs for new and experienced judges alike now include special emphasis on management of the discovery process and the proportionality requirement. And the …

Application Of The New "Proportionality" Discovery Rule In Class Actions: Much Ado About Nothing, Robert H. Klonoff

Vanderbilt Law Review

The "proportionality" amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs' bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, I have reviewed every published judicial opinion (approximately 135) between December 1, 2015 and April 30, 2018 that applied the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna Shepherd

Vanderbilt Law Review

In this Article, we explain that either a rule requiring both parties to share the costs of discovery ("cost-sharing rule") or a rule creating a risk for both parties that they will bear the entire costs of discovery ("cost-shifting rule") would minimize many of the negative incentives that exist under either a strict producer-pays or requester pays rule. Whereas the producer-pays rule creates incentives for excessive discovery because requesters can externalize the costs of requests and use discovery to impose costs on producing parties to force settlement, requesters under a cost-sharing or cost-shifting rule cannot externalize the costs of discovery …

Discovery Disclosure And Deterrence, Sergio J. Campos, Cheng Li

Vanderbilt Law Review

Courts, practitioners, and scholars have recently expressed concern over the ex post costs of discovery in civil litigation. In this Article, we develop a game theoretic model of litigant behavior to study an overlooked phenomenon-the ex ante effects of discovery on a defendant's incentive to engage in unlawful conduct. We focus on motions to seal, which limit the disclosure of discovered information to the public, but permit disclosure to the court and parties. Specifically, we examine the effect different rules regarding such motions have in deterring defendants from engaging in unlawful behavior. We show that as a rule becomes more …

How We Got Here: A Brief History Of Requester-Pays And Other Incentive Systems To Supplement Judicial Management Of Discovery, E. Donald Elliot

Vanderbilt Law Review

Over the last two decades, a mature academic literature has developed about how we might use incentives as a complement to discretionary judicial decisions for controlling civil discovery. Professor Brian Fitzpatrick and the other organizers of the Vanderbilt Law Review "Future of Discovery" Symposium thought it would make sense to start this symposium by summarizing what has been written previously on the subject in the hope that the next time that the rules advisory committee tries again to solve the problem of properly managing discovery, it might benefit from some of this learning.

A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor

Vanderbilt Law Review

We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to …

Discovery And The Social Benefits Of Private Litigation, Paul Stancil

Vanderbilt Law Review

In the era just before the Federal Rules of Civil Procedure went into effect in 1938, federal civil litigation was a different animal.' Although Congress had created several private statutory causes of action before the 1930s,2 the federal civil docket prior to enactment of the Rules consisted primarily of diversity jurisdiction common law cases, labor injunctions and receiverships, and miscellaneous cases brought by the United States, including Prohibition-era "liquor cases" as well as internal revenue and food and drug enforcement. 3 Occasional exceptions notwithstanding, pre-New Deal federal courts hearing private claims functioned primarily as forums for the resolution of discrete, …

Opting Out Of Discovery, Jay Tidmarsh

Vanderbilt Law Review

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …

Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules, Linda S. Simard

Vanderbilt Law Review

After more than two decades of vigorous debate, the original Federal Rules of Civil Procedure became effective on September 16, 1938, and ushered in broad provisions for discovery. The need for discovery, however, was not a central theme of the debates that preceded the original codification. Rather, the proponents of the new rules asserted that the Conformity Act of 1872 created uncertainty regarding the procedure that would apply in federal court. This uncertainty caused unnecessary expense and delay, particularly for interstate corporations that felt compelled to retain specialized counsel in every state. Proponents asserted that adoption of trans-substantive rules of …

One-Way Fee Shifting After Summary Judgment, Cameron T. Norris

Vanderbilt Law Review

New, defendant-friendly amendments to the Federal Rules of Civil Procedure took effect in December 2015. Included in the amendments were several provisions designed to curb the cost of discovery. Although modest, the discovery-related provisions created more controversy than perhaps anything the rule makers have done in recent memory. Yet the new amendments were only part of what corporate defendants asked the rule makers to do. Left undone was a much more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. To the surprise of many commentators, the …

A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice, Gordon Mckee, Anne Glover, Francis Rouleau

Vanderbilt Law Review

symposium organized by the Vanderbilt Law Review to discuss the future of discovery in the United States.' More specifically, the topic for discussion was an ongoing debate in the United States about proposals by the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice to adopt a "requestor-pays" discovery rule. In a requestor-pays system, each party pays for the discovery it seeks, which includes the costs of discovery belonging to the other parties to the litigation. It is based on the theory that a requestor-pays rule will encourage each party to manage its own discovery expenses and tailor …

A Proposal To End Discovery Abuse, Alexandra D. Lahav

Vanderbilt Law Review

When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed …

How We Got Here: A Brief History Of Requester-Pays And Other Incentive Systems To Supplement Judicial Management Of Discovery, E. Donald Elliott

Vanderbilt Law Review

Over the last two decades, a mature academic literature has developed about how we might use incentives as a complement to discretionary judicial decisions for controlling civil discovery. Professor Brian Fitzpatrick and the other organizers of the Vanderbilt Law Review “Future of Discovery” Symposium thought it would make sense to start this symposium by summarizing what has been written previously on the subject in the hope that the next time that the rules advisory committee tries again to solve the problem2 of properly managing discovery, it might benefit from some of this learning.

The Failed Superiority Experiment, Christine P. Bartholomew

Vanderbilt Law Review

Federal law requires a class action be "supcrior to alternative methods for fairly and efficiently adjudicating the controversy." This superiority requirement has gone unstudied, despite existing for half a century. Thia Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card-subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

Splitting The Baby: Standardizing Issue Class Certification, Jenna G. Farleigh

Vanderbilt Law Review

The Bible depicts King Solomon resolving a dispute between two women who claimed to be the mother of the same child. In the pursuit of justice, King Solomon threatened to do the unthinkable- slice the child in two. Although severing children is not a recommended vehicle for justice, severing lawsuits is. In fact, in the class-action context, the "issue class" established by Federal Rule of Civil Procedure 23(c)(4) does just what King Solomon threatened-it severs litigation into pieces, allowing aggregate treatment of only certain issues in a given lawsuit. Residual issues are left to be determined in plaintiff-specific, follow-on suits. …

Cleaning Up Punitive Damages: A Statutory Solution For Unguided Punitive-Damages Awards In Maritime Cases, Richard A. Chastain

Vanderbilt Law Review

Intentionally destroying property-boundary markers by sawing down the posts.' Causing environmental disasters. Fraudulently refusing to settle insurance claims within coverage limits. Bad-faith dealing in big oil contracts. Hiding mild weather damage to new vehicles. Creating and marketing cigarettes while knowing about their carcinogenic risks. Contributing to automobile accidents. No, these are not items on some nefarious villain's to-do list. These are all examples of cases where courts have awarded punitive damages against the tortfeasors on top of their compensatory liability. While each tort is unquestionably wrong, some certainly appear more wrong than others.

In recent years, punitive damages have become …

Will Aggregate Litigation Come To Europe?, Samuel Issacharoff, Geoffrey P. Miller

Vanderbilt Law Review

The current wave of deregulation and market liberalization in Europe has had major repercussions for the prospect of litigated forms of collective redress. Once decried as the perversity of rapacious Americans, class actions are now the focus of significant reform efforts in many European countries and even at the level of the European Union. There are, no doubt, many reasons for the relatively sudden attention to means of collective redress. Some have to do with the need to create effective ex post accountability mechanisms to contain the potential adverse effects of goods and services freely entering the market. Others seek …

Juror Questions During Trial: A Window Into Juror Thinking, Shari Seidman Diamond, Mary R. Rose, Beth Murphy, Sven Smith

Vanderbilt Law Review

The jury has undergone a dramatic transformation from its earliest incarnation when jurors acted as witnesses, investigators, and tribunal. In the modern American jury trial, the parties determine what jurors learn during the proceedings. Jurors of today, assigned the role of audience members until deliberations begin, typically speak in the courtroom only during jury selection and through their verdict at the end of the trial. In light of their enforced silence throughout the trial, jurors have no opportunity to clarify or check on their interpretation of the evidence and they provide few external indications about their thinking as the trial …

Offer-Of-Judgment Rules And Civil Litigation: An Empirical Study Of Automobile Insurance Litigation In The East, Albert Yoon, Tom Baker

Vanderbilt Law Review

Although their express purpose is to adjudicate disputes, courts by their institutional design encourage civil litigants to settle their differences without resorting to trial. Most civil systems impose filing fees, pleading requirements, and a highly formalized presentation of evidence; also, because of crowded civil dockets, courts typically require litigants to wait months, or even years, for their trial date.' For these reasons, and because of the increasing costs of legal representation, it is not surprising that the majority of litigants settle before trial. Notwithstanding these measures, federal courts and most state courts have an additional mechanism to encourage settlement, generally …

Rethinking Place Of Business As Choice Of Law In Class Action Lawsuits, Allison M. Gruenwald

Vanderbilt Law Review

In the past century, businesses have come to operate on a national and often global level. In the past century, the United States has seen an enormous nationalization and even globalization of business. As a result, the actions of a single company increasingly have the potential to affect people far beyond the boundaries of that company's home state. When one or a few companies injure large numbers of consumers across the country, aggregate litigation (namely the class action lawsuit) becomes an especially attractive remedy. Aggregating claims allows plaintiffs to save time and money and may also enable them to present …

From "Predominance" To "Resolvability": A New Approach To Regulating Class Actions, Allan Erbsen

Vanderbilt Law Review

Class actions incite both delight and disgust. Several complementary themes in popular culture embrace the class action, including sympathy for underdog litigants challenging powerful malefactors, fascination with massive redistributions of wealth from corporations to individuals, and reluctance to permit large and influential wrongdoers to escape justice merely because of their size and clout. Class actions have thus become an appealing procedural counterweight to the burdens that modern society imposes on consumers and citizens, giving many little Davids a fighting chance for protection from or retribution against political and economic Goliaths. But class actions also expose and rile competing visions of …

Civil Aiding And Abetting Liability, Nathan I. Combs

Vanderbilt Law Review

Criminal liability for aiding and abetting constitutes an ancient doctrine of criminal law. Commentators describing English law at the beginning of the fourteenth century recognized that "the law of homicide is quite wide enough to comprise . . . those who have 'procured, counseled, commanded or abetted' the felony.. .for it is colloquially said that he sufficiently kills who advises." In 1909, Congress enacted a general aiding and abetting statute applicable to all federal criminal offenses.

Civil liability for aiding and abetting, however, represents a very underdeveloped theory within common law tort. Courts have stated, seemingly in jest, that precedents …

Human Rights Violations As Mass Torts: Compensation As A Proxy For Justice In The United States Civil Litigation System, Elizabeth J. Cabraser

Vanderbilt Law Review

On July 26, 2000, final approval was granted to a landmark $1.25 billion settlement of the claims of an international class of Holocaust victims against Swiss Banks that engaged in massive looting and misappropriation of assets entrusted to them by hundreds of thousands of Jews and other groups imprisoned, murdered, and dislocated by the Nazi regime. The Swiss Banks complaints linked the actions of Swiss financial institutions to the Nazi regime and its program of genocide.

The Swiss Banks litigation was brought and settled under federal class action rules in the United States District Court for the Eastern District of …

Appellate Courts, Historical Facts, And The Civil-Criminal Distinction, Chad M. Oldfather

Vanderbilt Law Review

Among the pieties of our legal system is the notion that appellate courts do not engage in factual evaluation. Murky though the distinction between "fact" and "law" may be,' there is general agreement that somewhere along the fact-law spectrum lies a point beyond which appellate courts ought not venture. Past it exist questions of "historical fact," the "who, when, what, and where" series of questions that we have deemed only juries or trial judges to be capable of answering.

Just as well accepted is the reasoning behind this juridical line in the sand. Simply put, we believe that appellate courts …

Common Sense And Other Legal Reforms, Carl Tobias

Vanderbilt Law Review

The Contract with America (the "Contract") was the centerpiece of the Republican Party's strategy in the 1994 congressional campaigns. The Common Sense Legal Reforms Act (CSLRA") was the ninth tenet and a critical constituent of the Contract, which the Republican Party promised that the new Congress would vote upon within one hundred days. Once the Grand Old Party swept into office, capturing the House of Representatives for the first time in four decades, many members of Congress were expressly committed to honoring the Contract with America. Accordingly, nearly one hundred Republican sponsors introduced the Common Sense Legal Reforms Act during …

Hypnotic Memories And Civil Sexual Abuse Trials, Jacqueline Kanovitz

Vanderbilt Law Review

In the next few paragraphs, the reader will eavesdrop on a psycho- therapy session. During this session, the therapist uses hypnosis, a common technique in clinical practice today. In the past, the legal system has paid little attention to the memory retrieval techniques used in psychotherapy because statutes of limitations have prevented patients from using memories of childhood wrongs uncovered in adult psycho-therapies to bring suit. However, recent changes will force the legal system to examine whether the memory restoring techniques used in psychotherapy can produce memory that is trustworthy enough for the legal system to accept. What follows is …