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Full-Text Articles in Law

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert Jan 2018

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there ...


A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux Jan 2014

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Articles

No abstract provided.


Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos Jan 2012

Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos

Articles

This Article provides the first extended academic consideration of a new practice adopted by an increasing number of courts to resolve e-discovery disputes — the sampling of a small portion of the information sought in backup or other relatively inaccessible files. We provides a comprehensive overview and statistical analysis of contemporary sampling techniques, identifying issues where sampling practice is inconsistent or where additional guidance appears to be required. Our aim is to provide a coherent theoretical approach to the use of sampling, suggesting “best practices” for many unresolved issues, and locating sampling practice within broader contemporary debates about discovery.


Information Lost And Found, Frederic M. Bloom Jan 2012

Information Lost And Found, Frederic M. Bloom

Articles

At the core of every lawsuit is a mix of information-revealing documents that chronicle a party's malfeasance, guarded memos that outline a lawyer's trial strategy, fading memories that recall a jury's key mistakes. Yet the law's system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap ...


Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux Jan 2010

Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux

Articles

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is ...


Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss Jan 2009

Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss

Articles

Cases are won and lost in discovery, yet discovery draws little academic attention. Most scholarship focuses on how much discovery to allow, not on how courts decide discovery disputes--which, unlike trials, occur in most cases. The growth of computer data--e-mails, lingering deleted files, and so forth--increased discovery cost, but the new e-discovery rules just reiterate existing cost-benefit proportionality limits that draw broad consensus among litigation scholars and economists. But proportionality rules are impossible to apply effectively; they fail to curb discovery excess yet disallow discovery that meritorious cases need. This Article notes proportionality's flaws but rejects the consensus blaming ...


Fallen Superheroes And Constitutional Mirages: The Tale Of Brady V. Maryland, Scott E. Sundby Jan 2002

Fallen Superheroes And Constitutional Mirages: The Tale Of Brady V. Maryland, Scott E. Sundby

Articles

No abstract provided.


The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein Jan 2000

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the ...


Dealing With Evidentiary Deficiency, Richard D. Friedman Jan 1997

Dealing With Evidentiary Deficiency, Richard D. Friedman

Articles

Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency. Ariel Porat ...


Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper Jan 1994

Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper

Articles

Discovery practice continues to be the single most troubling element of contemporary procedure. To be sure, the system seems to work well in a high proportion of all federal cases. The proportion may seem astonishingly high in relation to the amount of attention devoted to discovery. The discovery problems that occur in a relatively small proportion of the federal caseload, however, impose serious burdens on the parties and the court system. Every proposal that addresses discovery "abuse" deserves serious attention. These comments focus on the discovery abuse portion of the paper by Cooter and Rubinfeld. Questions are posed that may ...


Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross Jan 1990

Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross

Articles

This essay describes a novel clinical format, a simulation course that is based on students' testimony about actual events in their own lives. The two main purposes of the course, however, are not novel. First, I aim to teach the students to be effective trial lawyers by instructing them in the techniques of direct examination and cross-examination and by making them sensitive to the roles of the other courtroom players: the witness, the judge, and the jury. Second, I hope to encourage the students to think about the social and ethical consequences of our method of trying lawsuits.


Depositions Of Corporations: Problems And Solutions-Fed. R. Civ. P. 30(B)(6), M. Minnette Massey Jan 1986

Depositions Of Corporations: Problems And Solutions-Fed. R. Civ. P. 30(B)(6), M. Minnette Massey

Articles

No abstract provided.


The Consumer Class Action, Arthur H. Travers, Jr., Jonathan M. Landers Jan 1970

The Consumer Class Action, Arthur H. Travers, Jr., Jonathan M. Landers

Articles

No abstract provided.


The Patentability Of A Principle Of Nature, John B. Waite Jan 1917

The Patentability Of A Principle Of Nature, John B. Waite

Articles

The extent to which courts will go in conceding patentability to a natural law, or principle of nature, is evidenced in the case of Minerals Separation Co. v. Hyde, 37 Sup. Ct. -, decided by the Supreme Court, December 11, 1916. It has always been more or less an axiom of patent law that the discovery of a principle of nature does not entitle the discoverer to a patent for it. The case usually thought of first as authority therefor, is that of Morton v. New York Eye Infirmary, 5 Blatch. 116, 2 Fisher 320. The patentees in that case had ...