Law Commons^™

Climate Science In Adaptation Litigation In The U.S., Jacob Elkin

Sabin Center for Climate Change Law

The most prominent climate litigation to date has primarily focused on mitigation—reducing greenhouse gas emissions—but as climate impacts become more frequent, extreme, and intense, adaptation litigation will increase. Adaptation cases frequently rely on evidence drawn from scientific research into past and future climate change. This research oftentimes consists of one of two types of climate research: attribution studies of climate change to date, and future projections of climate change and its impacts.

Climate change attribution links human activity to climate change, especially changes in the statistics of extreme weather events. Increasingly, it is also beginning to be applied to impacts …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy S. Lund

Faculty Scholarship

This Article analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, through an in-depth docket review, whether and how the ten largest mutual funds participate in shareholder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them …

Contractual Arbitrage, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Standard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques …

The Policy Implications Of Third-Party Funding In Investor-State Dispute Settlement, Brooke Guven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In this Working Paper, CCSI analyzes underexplored yet critical policy issues surrounding the use of third-party funding in ISDS. It considers the costs and benefits of the practice, asks whether it is desirable or undesirable that third-parties be permitted to invest in ISDS claims, and if so, under what circumstances and in order to achieve what objectives, and overviews policy responses, including a total or partial ban and various regulatory responses, that may be appropriate to manage identified impacts.

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

Lawyers, Power, And Strategic Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It's not just their ease with the language and the process that sets them apart. They dominate the space.

This empirical study analyzes the experience …

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …

Policing, Crime, And Legitimacy In New York And Los Angeles: The Social And Political Contexts Of Two Historic Crime Declines, Jeffrey Fagan, John Macdonald

Faculty Scholarship

This chapter tells the story of policing, crime, and the search for legitimacy over the past two decades in Los Angeles and New York City. Throughout this complex political, normative, and legal landscape, crime rates dropped dramatically in each city to levels not seen since the early 1960s. The chapter begins with a discussion of the evolution of policing in the two cities, assessing reciprocal and dynamic changes that reflected both the crises of crime epidemics and crises within the police. Next, it examines the role of litigation on the evolution of policing. Policing regimes in each city were challenged …

Law, Economics, And The Burden(S) Of Proof, Eric L. Talley

Faculty Scholarship

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic …

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of "equality directives," whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private …

Fee Shifting In Litigation: Survey And Assessment, Avery W. Katz, Chris William Sanchirico

Faculty Scholarship

Should the party who loses in litigation be forced to pay the legal fees of the winner? This paper surveys the economic literature regarding the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on …

Anticipating Litigation In Contract Design, Robert E. Scott, George G. Triantis

Faculty Scholarship

Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design in a world of costly litigation. We examine the efficiency of investment at the front end and back end of the contracting process, where we focus on litigation as the back-end stage. In deciding whether to express their obligations in precise or vague terms, contracting parties implicitly allocate costs between the front and back end. When the …

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …