Law Commons^™

Standing, Equity, And Injury In Fact, Ernest A. Young

Faculty Scholarship

This contribution to the Notre Dame Law Review's annual Federal Courts symposium on "The Nature of the Federal Equity Power" asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the symposium, that equity does not have causes of action as such--or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on whether …

State-Local Litigation Conflicts, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Unpacking Third-Party Standing, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right holder and the right holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. This Article argues that much of the doctrine’s perceived incoherence stems from the Supreme Court’s attempt to capture, in a single principle, disparate scenarios raising distinct problems of both theory …

Protecting Local News Outlets From Fatal Legal Expenses, Nicole J. Ligon

Faculty Scholarship

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. …

State Standing And Cooperative Federalism, Ernest A. Young

Faculty Scholarship

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …

Three Models Of Adjudicative Representation, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

A Study Of The Costs Of Legal Services In Personal Injury Litigation In Ontario: Final Report, Allan C. Hutchinson

Commissioned Reports, Studies and Public Policy Documents

Contingency Fee Agreements (CFAs) are now a fixed feature of the Ontario litigation landscape. However, little research or study has been done on exactly how they operate in practice, whether they advance the objectives that they were intended to achieve, and whether litigants are best served by the current arrangements. In this study, I intend to make a preliminary start to that research, set out some tentative criticisms of the CFA system as it currently operates, and, where appropriate, suggest preliminary proposals for change.

It should be said at the outset that my efforts to obtain real and serious data …

Book Review: Visualizing Law In The Age Of The Digital Baroque: Arabesques And Entanglements, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

Judging The Flood Of Litigation, Marin K. Levy

Faculty Scholarship

The Supreme Court has increasingly considered a particular kind of argument: that it should avoid reaching decisions that would “open the floodgates of litigation.” Despite its frequent invocation, there has been little scholarly exploration of what a floodgates argument truly means, and even less discussion of its normative basis. This Article addresses both subjects, demonstrating for the first time the scope and surprising variation of floodgates arguments, as well as uncovering their sometimes-shaky foundations. Relying on in-depth case studies from a wide array of issue areas, the Article shows that floodgates arguments primarily have been used to protect three institutions: …

Addressing The Needs Of Self-Represented Litigants In The Canadian Justice System, Trevor C. W. Farrow, Diana Lowe, Martha E. Simmons, Bradley Albrecht, Heather Manweiller

Commissioned Reports, Studies and Public Policy Documents

How can the Canadian justice system better assist self-represented litigants (SRLs) with their legal needs?

There is a service gap that exists in the Canadian justice system between what SRLs need and what is currently being provided. The system needs to better address how SRLs understand, avoid, manage and resolve their legal issues.

While the entire justice system has a role to play in understanding and addressing this question, courts and court administrators in particular have a central role to play. Some important efforts have begun to address the needs of SRLs. However, major challenges persist in providing adequate court …

Special Incentives To Sue, Margaret H. Lemos

Faculty Scholarship

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

Describing The Effect Of Adaptation On Settlement, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

No abstract provided.

Hedonic Adaptation And The Settlement Of Civil Lawsuits, John Bronsteen, Christopher J, Buccafusco, Jonathan S. Masur

Faculty Scholarship

This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that …

Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young

Faculty Scholarship

No abstract provided.

Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …

To Confront Or Not To Confront: Measuring Claiming Rates In Discrimination Grievances, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart

Faculty Scholarship

This note reexamines the generally accepted belief that persons with discrimination-related grievances are much less likely to complain about their problem than are persons with grievances arising from consumer purchases, torts, or other common kinds of personal problems. We find that previously reported analyses greatly overstate the gap between complaining in discrimination problems and other kinds of problems. Drawing on data from three surveys, each conducted in a different country (the United States, Canada, and Australia), we find that for some types of discrimination problems the level of complaining in fact equals or exceeds complaining in other arenas.

Voices Heard In Jury Argument: Litigation And The Law School Curriculum, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Ethical Considerations For The Corporate Legal Counsel, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Civil Litigation And Jura Novit Curia, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Workmen’S Compensation: Third Party’S Action Over Against Employer, Arthur Larson

Faculty Scholarship

No abstract provided.

Workmen’S Compensation Employer’S Independent Action Against Third Party, Arthur Larson

Faculty Scholarship

No abstract provided.