Law Commons^™

The Quiet Revolution In Products Liability, James A. Henderson Jr., Theodore Eisenberg

Cornell Law Faculty Publications

Most revolutions are noisy, tumultuous affairs. This is as true of significant shifts in legal doctrine as it is of shifts of political power through force of arms. Indeed, the pro-plaintiff revolution in American products liability in the early 1960s will forever be associated with heroic, martial images, epitomized in Prosser's description of the assault upon, and fall of, the fortress citadel of privity. The same sort of terminology aptly could be used to describe the last five or ten years of legislative reform activity in the various states. Reacting to what many see as "crises" brought on by courts …

Citizen Comprehension Of Difficult Issues: Lessons From Civil Jury Trials, Joe S. Cecil, Valerie P. Hans, Elizabeth C. Wiggins

Cornell Law Faculty Publications

Lay participation in debates concerning public policies is a touchstone of a democracy. The Constitution enshrines this value not only by providing for a system of elected representatives, but also by recognizing the right to trial by jury. When a democratic society seeks to impose the rigors of the law on an individual, it must justify those standards to a panel of citizens and allow the austere expression of the law to become infused with the values of the community. Through this process, the vision of justice shared by members of the community informs the dialogue of adjudication.

The increasing …

Testing The Selection Effect: A New Theoretical Framework With Empirical Tests, Theodore Eisenberg

Cornell Law Faculty Publications

Recent law and economics scholarship has produced much theoretical and empirical work on how and why legal disputes are settled and litigated. One of the most significant developments in this literature, attributable to the work of William Baxter and the combined efforts of George Priest and Benjamin Klein, has been the formation of a theory about both the selection of disputes for trial and the rates of success that plaintiffs enjoy for those cases that are resolved at trial. The basic theory contains two components. The selection effect refers to the proposition that the selection of tried cases is not …

Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont

Cornell Law Faculty Publications

So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work.

Part I of this essay describes the role of the number three in procedure, with particular regard to standards …

Modern Evidence And The Expert Witness, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Two Cheers For The Ali Restatement's Provisions On Foreign Discovery, Douglas E. Rosenthal, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

Surveying Work Product, Kevin M. Clermont

Cornell Law Faculty Publications

Work product is the legal doctrine that central casting would send over. First, it boasts profundities, arising as it does from the colliding thrusts of our discovery and trial processes and from conflicting currents in our modified adversary system. Second, it will surface frequently, because the protected materials are commonly created by each side but uncommonly useful to the opponent. Third, it has generated a small mountain of lower-court case law, with the foothills forming a labyrinth of rules and wrinkles. In short, work product has for a couple of generations dramatically bewitched academics, bothered practitioners, and bewildered students.

Significant …

The Silent Revolution, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Civil Procedure: Commentary, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Restating Territorial Jurisdiction And Venue For State And Federal Courts, Kevin M. Clermont

Cornell Law Faculty Publications

"Jurisdiction must become venue," concluded Professor Albert A. Ehrenzweig. Perhaps it should. More certain is the proposition that comprehending jurisdiction requires mastering its relationship with venue. Such conclusions lie at some distance, however, bringing to mind that every journey must begin with a single step. A solid first step takes me to the subject of this Symposium, the Restatement (Second) of Judgments. This, put simply, is a masterful work. Even while still in tentative drafts, it proved an invaluable aid to judge, practitioner, teacher, and student. Yet in a work of such scope, anyone could find grounds for differing. …

State Law In Federal Civil Rights Cases: The Proper Scope Of Section 1988, Theodore Eisenberg

Cornell Law Faculty Publications

The Code Of Professional Responsibility As A Measure Of Attorney Liability In Civil Litigation, Charles W. Wolfram

Cornell Law Faculty Publications

No abstract provided.

Improving On The Contingent Fee, Kevin M. Clermont, John D. Currivan

Cornell Law Faculty Publications

Two basic fees--contingent and hourly--dominate the variety of fees that lawyers charge clients for pursuing damage claims. Each of these two types has its advantages; each is plagued with substantial disadvantages. This Article proposes a new type of fee, one that preserves the respective advantages of the two present fees while minimizing their distinct disadvantages.

In essence, the proposed fee calls for the payment, on a contingent basis, of an amount computed by adding one component tied to hours worked and another component linked to amount recovered. The preferability and feasibility of this proposed fee argue for the abolishment, or …

The Application And Avoidance Of Foreign Law In The Law Of Conflicts: Variations On A Theme Of Alexander Nekam, Gregory S. Alexander

Cornell Law Faculty Publications

Lying at the heart of all conflicts theories is a recognition that the function of the law of conflicts is to ensure rational and just solutions to controversies involving foreign elements. A just and rational solution is one that somehow accommodates those elements. This does not mean that the foreign law must be applied but simply suggests that at least some attention should be paid to that law in the process of resolving disputes. From these relatively uncontroversial postulates, one moves to the more difficult problem of defining the role of foreign law in the conflicts setting.

Attention in this …