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Series

Litigation

1999

Institution
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Articles 1 - 30 of 44

Full-Text Articles in Law

Constitutional Law -- Due Process Clause -- Third Circuit Holds That $50 Million Punitive Damages Award In Context Of A $48 Million Compensatory Award Is Unconstitutionally Excessive -- Inter Medical Supplies, Ltd. V. Ebi Medical Systems, Inc., 181 F.3d 446 (3d Cir. 1999)., A. Benjamin Spencer Dec 1999

Constitutional Law -- Due Process Clause -- Third Circuit Holds That $50 Million Punitive Damages Award In Context Of A $48 Million Compensatory Award Is Unconstitutionally Excessive -- Inter Medical Supplies, Ltd. V. Ebi Medical Systems, Inc., 181 F.3d 446 (3d Cir. 1999)., A. Benjamin Spencer

Faculty Publications

In 1996, the Supreme Court, in BMW of North America, Inc. v. Gore, struck down a punitive damages award on the ground that it was "grossly excessive" in violation of the Due Process Clause of the Fourteenth Amendment . Since BMW, many courts have faced the challenge of applying its principles to determine whether punitive damages awards surpass the constitutional limit. Last June, in Inter Medical Supplies, Ltd. v. EBI Medical Systems, Inc., the Third Circuit faced this difficulty when it considered whether a $50 million punitive damages award, granted in conjunction with a $48 million compensatory damages award, was excessive ...


A Defense Of Analogical Reasoning In Law, Emily Sherwin Oct 1999

A Defense Of Analogical Reasoning In Law, Emily Sherwin

Cornell Law Faculty Publications

This Article defends the practice of reasoning by analogy on the basis of its epistemic and institutional advantages. The advantages identified for analogical reasoning include that it produces a wealth of data for decisonmaking; it represents the collaborative effort of a number of judges over time; it tends to correct biases that might lead judges to discount the force of prior decisions; and it exerts a conservative force in law, holding the development of law to a gradual pace. Notably, these advantages do not depend on the rational force of analogical reasoning. Rather, the author contends that, as open-ended reasoning ...


How Much Justice Hangs In The Balance? A New Look At Hung Jury Rates, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman Oct 1999

How Much Justice Hangs In The Balance? A New Look At Hung Jury Rates, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

Reports of apparent increases in the number of hung juries in some jurisdictions have caused concern among policy makers. A 1995 report by the California District Attorneys Association cited hung jury rates in 1994 that exceeded 15 percent in some jurisdictions (the rates varied from 3 to 23 percent across the nine counties for which data were available). In 1996, the District of Columbia Superior Court reported a higher-than-expected hung jury rate of 11 percent. Why juries hang at these rates isn't clear, but some commentators have claimed that hung juries are the product of eccentric or nullifying holdout ...


The Rule 11 Studies And Civil Rights Cases: An Inquiry Into The Neutrality Of Procedural Rules, Mark Spiegel Sep 1999

The Rule 11 Studies And Civil Rights Cases: An Inquiry Into The Neutrality Of Procedural Rules, Mark Spiegel

Boston College Law School Faculty Papers

This article discusses the controversy regarding neutral procedural rules. It focuses on the claim that the 1983 version of Rule 11 had a disproportionate impact upon civil rights cases, thereby violating the norm of procedural neutrality. By looking at this claim about the impact of Rule 11 on civil rights cases, we can evaluate whether the 1983 version of Rule 11 violated the norm of procedural neutrality, and also understand the different ways that the concept of procedural neutrality is used. This exploration will help us understand the larger debate regarding the neutrality of procedural rules and to make connections ...


Shopping For Judges: An Empirical Analysis Of Venue Choice In Large Chapter 11 Reorganizations, Theodore Eisenberg, Lynn M. Lopucki May 1999

Shopping For Judges: An Empirical Analysis Of Venue Choice In Large Chapter 11 Reorganizations, Theodore Eisenberg, Lynn M. Lopucki

Cornell Law Faculty Publications

For almost two decades, an embarrassing pattern of forum shopping has been developing in the highly visible world of big-case bankruptcy reorganization. Forum shopping--defined here as the act of filing in a court that does not serve the geographical area of the debtor's corporate headquarters--now occurs in more than half of all big-case bankruptcies. Two jurisdictions have attracted most of the forum shoppers. During the 1980s, when a large portion of the shopping was to New York, the lawyers involved asserted that New York was a natural venue because of its role as the country's financial capital and ...


The New Casuistry, Paul R. Tremblay Apr 1999

The New Casuistry, Paul R. Tremblay

Boston College Law School Faculty Papers

No abstract provided.


The Bad News About Good Faith For Excess Um Carriers, Robert L. Tucker Mar 1999

The Bad News About Good Faith For Excess Um Carriers, Robert L. Tucker

Akron Law Publications

No abstract provided.


Deposed Parties: Who Has A Right To Access Depositions In Civil Cases?, Robert L. Tucker Jan 1999

Deposed Parties: Who Has A Right To Access Depositions In Civil Cases?, Robert L. Tucker

Akron Law Publications

No abstract provided.


Moot Court Board, 1999-2000, Kellie Casey Monk Jan 1999

Moot Court Board, 1999-2000, Kellie Casey Monk

Materials from All Student Organizations

No abstract provided.


The Uniqueness Of Federal Prosecutors, Bruce A. Green, Fred C. Zacharias Jan 1999

The Uniqueness Of Federal Prosecutors, Bruce A. Green, Fred C. Zacharias

Faculty Scholarship

No abstract provided.


Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger Jan 1999

Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger

Reviews

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of ...


Impeachment: Evidence Amendments, Paul C. Giannelli Jan 1999

Impeachment: Evidence Amendments, Paul C. Giannelli

Faculty Publications

No abstract provided.


The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang Jan 1999

The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang

Faculty Scholarship at Penn Law

No abstract provided.


Evidence: 1997-1998 Survey Of New York Law, Faust Rossi Jan 1999

Evidence: 1997-1998 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.


The Predictability Of Punitive Damages Awards In Published Opinions, The Impact Of Bmw V. Gore On Punitive Damages Awards, And Forecasting Which Punitive Awards Will Be Reduced, Theodore Eisenberg, Martin T. Wells Jan 1999

The Predictability Of Punitive Damages Awards In Published Opinions, The Impact Of Bmw V. Gore On Punitive Damages Awards, And Forecasting Which Punitive Awards Will Be Reduced, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article assesses the relation between compensatory damages and punitive damages in cases leading to published opinions and BMW v. Gore's impact on the patterns of punitive damages awards in these opinions. We find that punitive damages awards are considerably higher in cases leading to published opinions than in trial level cases. But the correlation between compensatory and punitive awards found in trial level data persists in published opinions and is all but indistinguishable from the correlation in trial level data. We find no significant difference in the pattern of awards before and after BMW and no significant difference ...


Lawyer Disclosure To Prevent Death Or Bodily Injury: A New Look At Spaulding V. Zimmerman, Roger C. Cramton Jan 1999

Lawyer Disclosure To Prevent Death Or Bodily Injury: A New Look At Spaulding V. Zimmerman, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.


Buckley V. Valeo: A Landmark Of Political Freedom, Joel Gora Jan 1999

Buckley V. Valeo: A Landmark Of Political Freedom, Joel Gora

Faculty Scholarship

No abstract provided.


Rethinking Statutory Antiwaiver Provisions Following The Lloyd's Of London Litigation, Mark J. Loewenstein Jan 1999

Rethinking Statutory Antiwaiver Provisions Following The Lloyd's Of London Litigation, Mark J. Loewenstein

Articles

In the Lloyd's of London cases, the United States Courts of Appeals upheld certain forum-selection clauses that effectually deprived investors of the protections of the federal securities laws as if the investors had expressly waived those protections. This article examines statutory antiwaiver provisions in light of the Lloyd's cases, exploring the effect those provisions have on the administration of the federal securities laws, and suggests that the law be amended to allow contractual waiver in certain circumstances.


Civil Discovery Standards Seek To Improve Pretrial Practice, Susan J. Becker Jan 1999

Civil Discovery Standards Seek To Improve Pretrial Practice, Susan J. Becker

Law Faculty Articles and Essays

Challenges faced by attorneys in conducting efficient expert depositions has inspired the Section of Litigation Discovery Task Force to create Civil Discovery Standards. This article reviews these new standards.


Panel Discussion Of The Excuse Factory, Stewart J. Schwab Jan 1999

Panel Discussion Of The Excuse Factory, Stewart J. Schwab

Cornell Law Faculty Publications


The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The View Of Trial Participants, Judges, And Jurors, Valerie P. Hans, Paula Hannaford-Agor, G. Thomas Munsterman Jan 1999

The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The View Of Trial Participants, Judges, And Jurors, Valerie P. Hans, Paula Hannaford-Agor, G. Thomas Munsterman

Cornell Law Faculty Publications

In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines the theoretical, legal, and policy issues raised by this reform and presents the early results of a field experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experiences, and reactions during trial as well as what they perceived to be the benefits and drawback of juror discussions. The data revealed that the majority of judges ...


Markets As Monitors: A Proposal To Replace Class Actions With Exchanges As Securities Fraud Enforcers, Adam C. Pritchard Jan 1999

Markets As Monitors: A Proposal To Replace Class Actions With Exchanges As Securities Fraud Enforcers, Adam C. Pritchard

Articles

Fraud in the securities markets has been a focus of legislative reform in recent years. Corporations-especially those in the high-technology industry-have complained that they are being unfairly targeted by plaintiffs' lawyers in class action securities fraud lawsuits. The corporations' complaints led to the Private Securities Litigation Reform Act of 1995 ("Reform Act"). The Reform Act attempted to reduce meritless litigation against corporate issuers by erecting a series of procedural barriers to the filing of securities class actions. Plaintiffs' attorneys warned that the Reform Act and the resulting decrease in securities class actions would leave corporate fraud unchecked and deprive defrauded ...


Jury Reform At The End Of The Century: Real Agreement, Real Changes, Phoebe C. Ellsworth Jan 1999

Jury Reform At The End Of The Century: Real Agreement, Real Changes, Phoebe C. Ellsworth

Articles

Complaints about the jury system and calls for its reform are nothing new-they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971'; in 1905 William Howard Taft decried the contemporary tendency "to exalt the jury's power beyond anything which is wise or prudent .... ,2 Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their ...


Commodities Rulings Appealable To Circuit, Daniel Wise Jan 1999

Commodities Rulings Appealable To Circuit, Daniel Wise

News Articles

No abstract provided.


The Intersection Of Peremptory Challenges, Challenges For Cause, And Harmless Error, William G. Childs Jan 1999

The Intersection Of Peremptory Challenges, Challenges For Cause, And Harmless Error, William G. Childs

Faculty Scholarship

The Author provides a history and overview of peremptory challenges and their relationship with challenges for cause. Part I of the Article outlines the various types of state statutes and state case law related to the mandatory or permissive use of peremptory challenges to correct perceived error in deciding challenges for cause.

Part II includes a discussion of the current law of error analysis in the federal courts and recent trends in that area of law. Part III consists of a review of the Supreme Court case law involving error analysis and peremptory challenges. This Part examines the specific situation ...


Supreme Court Section 1983 Developments, Martin A. Schwartz Jan 1999

Supreme Court Section 1983 Developments, Martin A. Schwartz

Scholarly Works

No abstract provided.


Taking Fiction Seriously: The Strange Results Of Public Officials' Individual Liability Under Bivens, Cornelia T. Pillard Jan 1999

Taking Fiction Seriously: The Strange Results Of Public Officials' Individual Liability Under Bivens, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

This article argues that the Supreme Court's decision to place liability on federal officials in their personal capacity--what Professors Fallon and Meltzer call Bivens's "genius"--is in fact its Achilles' heel. Individual liability under Bivens has become fictional because it is the government, and not the individual personally, that is in fact liable in Bivens cases. The individual liability fiction has ended up helping the federal government more than the Bivens plaintiff in various ways, and has contributed to the low rate of recovery under Bivens.

It may seem odd to attribute the low rate of Bivens recoveries ...


The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley Jan 1999

The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley

Journal Articles

The independent counsel system as established by the Ethics in Government Act of 1978 has put different components of the executive branch, such as the President and Department of Justice in the position of litigating against a special counsel. Litigation is not only a bad idea, it also gives rise to a serious constitutional dilemma. It either violates Article III because there is insufficient adversity to support litigation between the parties. Or it violates Article II, by preventing the President and his subordinates from controlling central functions of the executive branch, and places the independent counsel, an inferior officer, in ...


Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow Jan 1999

Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Marc Galanter's essay, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (Why the "Haves" Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many "law and . . . " studies ...


Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz Jan 1999

Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz

Scholarly Works

No abstract provided.