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Class Actions In The Era Of Trump: Trends And Developments In Class Certification And Related Issues, John C. Coffee Jr., Alexandra D. Lahav Jan 2017

Class Actions In The Era Of Trump: Trends And Developments In Class Certification And Related Issues, John C. Coffee Jr., Alexandra D. Lahav

Faculty Scholarship

In this memorandum prepared for the Annual ABA National Institute on Class Actions, Professors Coffee and Lahav review and assess developments in class certification over recent years, and track trends in approaches to certification. Special attention is given to securities litigation, the use of confidential witnesses, ascertainability, attorney's fees, standing, mootness, statutes of repose, and the impact of recent Supreme Court decisions, including Halliburton II and Spokeo.


The Macpherson-Henningsen Puzzle, Victor P. Goldberg Jan 2017

The Macpherson-Henningsen Puzzle, Victor P. Goldberg

Faculty Scholarship

In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?


Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski Jan 2016

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely ...


"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg Jan 2016

"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg

Faculty Scholarship

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory ...


Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg Jan 2015

Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg

Faculty Scholarship

Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses ...


Surprisingly Punitive Damages, Bert I. Huang Jan 2014

Surprisingly Punitive Damages, Bert I. Huang

Faculty Scholarship

Think first of the classic problem of redundant punitive damages: A defendant has caused a mass tort. Plaintiff 1 sues, winning punitive damages based on the overall reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. Next, consider a more subtle problem: Many statutes set the minimum award per claim at a super-compensatory level, based on the assumption that private suits may need extra inducement. But when enforcement turns out to be more vigorous than was assumed – most famously, when thousands or ...


Fee-Shifting Bylaw And Charter Provisions: Can They Apply In Federal Court? – The Case For Preemption, John C. Coffee Jr. Jan 2014

Fee-Shifting Bylaw And Charter Provisions: Can They Apply In Federal Court? – The Case For Preemption, John C. Coffee Jr.

Faculty Scholarship

In the first months after a decision of the Delaware Supreme Court upholding a fee-shifting bylaw under which the unsuccessful plaintiff shareholder was required to reimburse all defendants for their legal and other expenses in the litigation, some 24 public companies adopted a similar provision – either by means of a board-adopted bylaw or by placing such a provision in their certificate of incorporation (in the case of companies undergoing an IPO). In effect, private ordering is introducing a one-sided version of the “loser pays” rules. Indeed, as drafted, these provisions typically require a plaintiff who is not completely successful to ...


Concurrent Damages, Bert I. Huang Jan 2014

Concurrent Damages, Bert I. Huang

Faculty Scholarship

In areas as diverse as copyright, pollution, consumer protection, and electronic privacy, statutory damages have become a familiar form of civil remedy. Yet as judges are discovering, these formulaic awards can swing by orders of magnitude for no good reason — due to the rigidly linear way in which the awards stack up, count by count. The irony is that too much structure, rather than too little, is what causes such capricious outcomes. This Article proposes a solution: allow courts to run damages concurrently. As with concurrent criminal sentencing, the judge would recognize every act of violation, and yet group the ...


Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman Jan 2012

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this article adds depth to existing understanding of ...


Litigation Finance: What Do Judges Need To Know?, Bert I. Huang Jan 2012

Litigation Finance: What Do Judges Need To Know?, Bert I. Huang

Faculty Scholarship

The growth of “litigation finance” — the funding of lawsuits by outside investors who are neither parties nor counsel — is being closely watched by academics, the press, and the bar. The practice poses risks of conflicting interests and improper influence; and yet if carefully managed it may in fact enhance party autonomy. What questions, then, should judges be asking when dealing with a case with outside funding? This symposium essay offers judges a starting point: a menu of questions to ask parties who receive such financing. These inquiries aim to pierce simplistic labels such as “loan” or “investment,” in order to ...


Law, Economics, And The Burden(S) Of Proof, Eric L. Talley Jan 2012

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 ...


The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav Jan 2012

The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav

Faculty Scholarship

In this memorandum, Professors Coffee and Lahav describe and assess the highlights of class certification rulings from 2005 to 2012, and track trends in approaches to certification.


The Us Experience With Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg Jan 2010

The Us Experience With Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg

Faculty Scholarship

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with formalities ...


Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr. Jan 2010

Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr.

Faculty Scholarship

Both Europe and the United States are rethinking their approach to aggregate litigation. In the United States, class actions have long been organized around an entrepreneurial model that uses economic incentives to align the interest of the class attorney with those of the class. But increasingly, potential class members are preferring exit to voice, suggesting that the advantages of the U.S. model may have been overstated. In contrast, Europe has long resisted the U.S.’s entrepreneurial model, and the contemporary debate in Europe centers on whether certain elements of the U.S. model – namely, opt-out class actions, contingent ...


Responsibility And The Negligence Standard, Joseph Raz Jan 2009

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.


In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott Jan 2008

In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott

Faculty Scholarship

Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take ...


Accountability And Competition In Securities Class Actions: Why "Exit" Works Better Than "Voice", John C. Coffee Jr. Jan 2008

Accountability And Competition In Securities Class Actions: Why "Exit" Works Better Than "Voice", John C. Coffee Jr.

Faculty Scholarship

The rules of "litigation governance" in class actions are diametrically different from the rules of corporate governance, in large part because the former works off an "opt out" rule while the latter employs an "opt in" rule. This results in higher agency costs in the former context. To address this problem, reformers have long favored remedies such as the "lead plaintiff" provision of the Private Securities Litigation Reform Act ("PSLRA"), which in theory give class members a stronger voice. Empirically, however, such "voice-based" reforms appear to have had no more than a modest impact. But an alternative remedy appears to ...


Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg Jan 2007

Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg

Faculty Scholarship

In Dastar Corp. v. Twentieth Century Fox Film Corp. Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate "a species of mutant copyright law that limits the public's 'federal right to "copy and to use,"' expired copyrights." The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court's eagerness to forestall Darwinian disaster ...


On Copyright's Authorship Policy, Tim Wu Jan 2007

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

It has long been the stated aspiration of copyright to make authors the masters of their own destiny. Yet more often than not, the real subject of American copyright is distributors, book publishers, record labels, broadcasters, and others, who control the rights, bring the lawsuits, and take copyright as their industries' 'life-sustaining protection.' This paper offers a new theory and defense of the role of authors and authorial copyright in the copyright system. I argue that the device of making authors rights-bearers can seed new modes of production in the industries under copyright. Rights-bearing authors can, in other words, help ...


Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley Jan 2006

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient ...


Reforming The Securities Class Action: An Essay On Deterrence And Its Implementation, John C. Coffee Jr. Jan 2006

Reforming The Securities Class Action: An Essay On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

The securities class action cannot be justified in terms of compensation, but only in terms of deterrence. Currently, the damages recovered through private enforcement dwarf the financial penalties levied by public enforcement. Yet, the evidence is clear that corporate officers and insiders rarely contribute to securities class action settlements, with the settlement funds coming instead from the corporation and its insurers. As a result, the cost of such actions in the aggregate falls on largely diversified shareholders. Such a system is akin to punishing the victims of burglary for their negligence in suffering a burglary and does little to deter ...


Featuring The Three Tenors In La Triviata, Victor P. Goldberg Jan 2005

Featuring The Three Tenors In La Triviata, Victor P. Goldberg

Faculty Scholarship

In the "Three Tenors" case the FTC found an agreement a violation of the antitrust law despite the fact that there was no way it could be anticompetitive. The Commission failed to heed the lessons of Coase's classic paper on the nature of the firm, making a sharp distinction between activities within a firm (legal) and across firm boundaries (not legal). Analytically, there should be no distinction. The decision to integrate activities by contract rather than ownership is a matter of relative transactions costs. Since the boundaries of the firm are, ultimately, an economic decision reflecting the costs and ...


Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits Jan 2005

Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits

Faculty Scholarship

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to ...


Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann Jan 2005

Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann

Faculty Scholarship

This paper is the first part of a wide-ranging study of the role of intellectual property in the software industry. Unlike previous papers that focus primarily on software patents – which generally are held by firms that are not software firms – this Article provides a thorough and contextually grounded description of the role that patents play in the software industry itself.

The bulk of the Article considers the pros and cons of patents in the software industry. The Article starts by emphasizing the difficulties that prerevenue startups face in obtaining any value from patents. Litigation to enforce patents is impractical for ...


Copyright's Communications Policy, Tim Wu Jan 2004

Copyright's Communications Policy, Tim Wu

Faculty Scholarship

This paper suggest that the main challenges for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy. Since its inception copyright has set important baselines upon which publishers and their modern equivalents compete.business. As the pace of technological change accelerates, copyright's role in setting the conditions for competition is quickly becoming more important, even challenging for primacy the significance of copyright's encouragement of authorship.

The study of copyright's communications policy has both a descriptive and a normative payoff. First, it helps us understand both the ...


The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg Jan 2004

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included the right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever one's conception of the philosophical or policy basis for copyright. That is, whether one sees copyright as a personality right conferring on the author the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of ...


When Code Isn't Law, Tim Wu Jan 2003

When Code Isn't Law, Tim Wu

Faculty Scholarship

The prominent effects of computer code have made it difficult to ignore the fact that code can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) "code is law."

But the idea remains extremely vague. Most problematically, none of these understandings of code and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the ...


Essay – How Copyright Got A Bad Name For Itself, Jane C. Ginsburg Jan 2002

Essay – How Copyright Got A Bad Name For Itself, Jane C. Ginsburg

Faculty Scholarship

Over the last several years, copyrighted works have come to account for a healthy portion of our GNP, and an even more substantial share of U.S. exports. Nonetheless, copyright is in bad odor these days. Many of the developments over the last years designed to protect copyright have drawn academic scorn, and intolerance even from the popular press. I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.

Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators ...


Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg Jan 2001

Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg

Faculty Scholarship

This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded ...


Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg Jan 2001

Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg

Faculty Scholarship

A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and ...