Law Commons^™

Measuring The Deterrent Effect Of Punitive Damages, Theodore Eisenberg

Cornell Law Faculty Publications

Professor Viscusi's article differs from the dominant mode of law and economics scholarship on punitive damages. The usual punitive damages article contains purely theoretical considerations about when punitive damages are appropriate and about their optimal level; no effort is made to ascertain whether the existing pattern of punitive awards corresponds with the theory. This is part of a larger problem: the dearth of empirical evidence in law and economics scholarship. Viscusi, on the other hand, provides empirical tests of whether punitive damages accomplish their goals, and he makes creative use of publicly available data sources. For the goal of his …

What If There Is No Client?: Prosecutors As "Counselors" Of Crime Victims, Stacy Caplow

Faculty Scholarship

No abstract provided.

Unsettled Standing: Who (Else) Should Enforce The Duties Of Charitable Fiduciaries?, Rob Atkinson

Scholarly Publications

No abstract provided.

The United States' Approach To International Civil Litigation: Recent Developments In Forum Selection, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

An Historical Analysis Of The Binding Effect Of Class Suits (Co-Authored With G. Hazard Jr. & J. Gedid), Stephen D. Sowle

All Faculty Scholarship

No abstract provided.

Crosscurrents: Supplemental Jurisdiction, Removal, And The Ali Revision Project, Joan E. Steinman

All Faculty Scholarship

No abstract provided.

The Scope Of Appellate Jurisdiction: Pendent Appellate Jurisdiction Before And After Swint, Joan E. Steinman

All Faculty Scholarship

No abstract provided.

Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

General Observations on Interpreting Win-Rate Data Properly. Many empirical legal studies use data on plaintiffs' rate of success, because of those data's ready availability and apparent import. Yet these "win rates" are probably the slipperiest of all judicial data. Win rates are inherently ambiguous because of the case-selection effect. The litigants' selection of the cases brought produces a biased sample from the mass of underlying disputes. The settlement process, usually conducted by rational and knowledgeable persons who take into account and thereby neutralize the very factor that one would like to study, produces a residue of litigated cases for which …

Summary Adjudication In United States Civil Procedure, Mary J. Davis

Law Faculty Scholarly Articles

This article uses one of the high profile mass tort cases of recent decades, the complex silicone gel-filled breast implant products liability litigation, to evaluate summary adjudication measures. Recognizing that not all claims filed are complex tort claims (just the most interesting ones), where commercial claims present the opportunity for use of summary proceedings, those will be discussed as well, particularly regarding mechanisms by which security for a creditor-plaintiffs claim can be obtained prior to a favorable verdict.

While preparing this Report, it became clear that the author has a particular view of what constitutes a "summary adjudication" procedure, but …

Nearing The End Of Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

In continuing the series of essays which evaluate and document the phenomenon of federal civil justice reform, this essay initially affords an update on recent developments in civil justice reform at the national level and in the United States District Court for the District of Montana (Montana District). The essay emphasizes the conclusion of two major studies that analyze the national reform effort and the submission to Congress of reports and a recommendation, which were premised substantially on these studies, by the Judicial Conference of the United States. The essay also stresses the completion by the Ninth Circuit District Local …

Reforming Common Sense Legal Reforms, Carl W. Tobias

Law Faculty Publications

The Contract With America figured prominently in the Republican Party's victories in the 1994 congressional races. During the opening days of the 104th Congress, therefore, approximately one hundred sponsors introduced the Common Sense Legal Refonns Act (CSLRA), which embodied several measures that comprised the Contract's ninth precept. The only constituent of this package of proposals which actually became law was the Private Securities Litigation Refonn Act (PSLRA). Both Houses of Congress did pass products liability reform bills but lacked the requisite votes to override President Bill Clinton's veto. The House of Representatives approved the Attorney Accountability Act (AAA), which would …

The Sources And Scope Of Federal Procedural Common Law: Some Reflections On Erie And Gasperini, Wendy Collins Perdue

Law Faculty Publications

In this Essay I explore what traditional Erie cases would look like if we treated those cases just like classic federal common law cases. I conclude that such an approach is consistent with Erie itself and is also consistent with many of the holdings, if not the language, of traditional Erie cases. This unified approach to substantive and procedural federal common law might have some advantages. In addition to providing conceptual uniformity, this approach would offer an escape from current Erie doctrine, which is confused and unsatisfactory. Under the current doctrine, the Court appears to vacillate between the balancing test …

Moving Violations: An Examination Of The Broad Preemptive Effect Of The Carmack Amendment, Jeanne M. Kaiser

Faculty Scholarship

This Article addresses the general principles of preemption, and describes the history, purpose and language of the Carmack Amendment. The Article then demonstrates that at the time the amendment was passed, Congress had no intention of preempting claims based on moving industry misconduct. Part II discusses the constitutional principles that govern application of the law of federal preemption and describes how application of preemption in Carmack Amendment cases has diverged from the overall application of preemption principles in other areas of congressional legislation. Finally, Part III argues that the courts have improperly granted the moving industry carte blanche to deceive …

The Effect Of Lifting The Blindfold From Civil Juries Charged With Apportioning Damages In Modified Comparative Fault Cases: An Empirical Study Of The Alternatives, Jordan H. Leibman, Robert B. Bennett, Richard Fetter

Scholarship and Professional Work - Business

Focuses on a study on the effect of lifting the blindfold from civil juries charged with apportioning damages in modified comparative fault cases. Historical background on comparative fault in the United States; Origin of blindfolding; Comparison of blindfold modified comparative fault verdicts with sunshine verdicts; Conclusions.

Comment On The Supplemental-Jurisdiction Statute: 28 U.S.C. § 1367, Arthur D. Wolf

Faculty Scholarship

This Article discusses the supplemental-jurisdiction statute of 1990, 28 U.S.C. § 1367, which has generated more commentary than perhaps any other jurisdictional section. Together, § 1331, which traces its history to the Judiciary Act of 1875, and § 1332, which dates back to the Judiciary Act of 1789, did not undoubtedly promote more examination in their first eight years of existence. One might speculate why § 1367 has been the focus of so much commentary, largely critical: critical of the speed with which § 1367 was enacted, critical of the narrow range of persons involved in its drafting, critical of …

Punitive Awards After Bmw, A New Capping System, And The Reported Opinion Bias, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

Capping punitive damages awards is a centerpiece of the tort reform movement. According to the American Tort Reform Association, as of June 30, 1996, forty-three states allowed punitive damages awards. Of these, twenty-nine states impose no caps on punitive damages and fourteen impose some form of cap. In states that cap punitive awards, the preferred method is to employ a simple multiple of the compensatory award. Eleven states rely on a multiple of the compensatory damages award. The most popular multiple is three times the compensatory award, but this is used by only five states. The capping multiples range from …

Evidence: 1996-1997 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Industrial Espionage As Unfair Competition, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

Discovery In International Legal Developments Year In Review: 1997, Christopher J. Borgen

Faculty Publications

U.S. law provides litigants with a variety of means to obtain evidence from foreign jurisdictions. The Federal Rules of Civil Procedure (the Federal Rules) and rules of state courts may be used if a U.S. court has jurisdiction over the person who is in control of the evidence in question. Section 1783 of tide 28 of the United States Code provides a means for serving a subpoena on U.S. nationals or residents abroad. Litigants may also obtain foreign discovery through letters rogatory as permitted by 28 U.S.C. § 1781 and treaties such as the Hague Convention on Taking Evidence (the …

Did The Civil Justice Reform Act Of 1990 Actually Expire?, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act of 1990 (CJRA) was intended to reduce the expense and delay associated with federal district court litigation by requiring courts to study and adopt new procedures. The CJR.lrs gains, however, may be erased by the uncertainty surrounding its sunset provision. Professor Tobias argues that Congress or the Judicial Conference should resolve the uncertainty by proclaiming that the CJRA has expired, thus forcing districts to abrogate procedures inconsistent with the Federal Rules of Civil Procedure.

The Judicial Conference Report And The Conclusion Of Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

The Civil Justice Reform Act (CJRA) of 1990 instituted a nationwide experiment with procedures for decreasing expense and delay in federal civil litigation. Congress required all ninety-four federal district courts to adopt civil justice expense and delay reduction plans and to apply cost and delay reduction measures for at least four years.Congress correspondingly prescribed considerable evaluation of the experimentation which the federal districts undertook. The 1990 legislation mandated that each court annually assess the efficacy of the procedures which the district employed. Moreover, Congress required that an “independent organization with expertise in the area of Federal court management” conduct a …

The Compromise Of '38 And The Federal Courts Today, John H. Robinson

Journal Articles

In 1998 the legal community of the United States should stop and take stock of two epochal events in the history of the federal judicial system. One of those events, as readers of a procedure symposium do not need to be told, is the sixtieth anniversary of the introduction of the Federal Rules of Civil Procedure. I shall have more to say about that event presently, but I want first to devote a few paragraphs to a second event, one which proceduralists ignore at their peril. The event I have in mind is the initiation of a new era of …

Fraud And Federalism: Preempting Private State Securities Fraud Causes Of Action, Michael A. Perino

Faculty Publications

The passage of the Private Securities Litigation Reform Act of 1995 has engendered a significant forum shift in class action securities fraud litigation, from federal to state court. This unintended by-product of the Act has reignited debate over our dual federal-state system of securities regulation and in turn has inspired a discussion as to whether Congress should now preempt state securities fraud causes of action. This article argues that preemption is an appropriate, but not the only, solution to these concerns. To support this argument, this article first traces the history of dual state-federal securities regulation within the context of …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance law in the year 1998.

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in years 1998 and 1999.

Civil Justice Reform Sunset, Carl W. Tobias

Law Faculty Publications

This article uses the Civil Justice Reform Act of 1990 (CJRA) as the backdrop for addressing efforts to increase uniformity, simplicity, and transsubstantivity, and to decrease expense and delay in civil litigation. Professor Tobias discusses both the origin and the implementation of the CJRA. By requiring each federal district court to formulate a civil justice expense and delay reduction plan, the purpose of the CJRA is to decrease expense and delay in civil litigation. Professor Tobias argues that the CIRA has been successful because districts have applied techniques that have saved cost and time and have provided new data that …

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

Scholarly Works

Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

Once More Into The Breach: More Reforms For The Federal Discovery Rules, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Discovery Containment Redux, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Puzzling Persistence Of Pleading Practice, Richard L. Marcus

Faculty Scholarship

No abstract provided.