Law Commons^™

Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Implementing The Public Welfare Requirement In New Mexico's Water Code, Consuelo Bokum

Publications

Despite the fact that the New Mexico legislature added a public welfare criterion to the water code over 10 years ago, the State Engineer Office has not addressed the application of the criterion by regulation and has only addressed the public welfare briefly in a few decisions. There is almost no case law in New Mexico addressing this issue. More and more participants, however, are raising public welfare in water rights protests. This paper addresses how the public welfare criterion has developed in western water law and proposes an approach for use of the criterion in New Mexico.

The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Rediscovering Discovery Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Using Decision Trees As Tools For Settlement, Marjorie Corman Aaron

Faculty Articles and Other Publications

While experienced lawyers can some­ times develop an intuitive sense of what a case is worth, their intuition may not be sufficient in a case of considerable complexity. Furthermore, intuitive "gut sense" valuations are hard to support or explain to clients.

Decision trees allow the parties and their lawyers to see more clearly how the strengths and weaknesses of their positions on specific issues will affect the overall value of a case. Long popular in the business community, deci­sion analysis has evolved as a tool for lawyers to help make decisions in complex litigation.

Wrongful Discharge Law And The Search For Third-Party Effects, Stewart J. Schwab

Cornell Law Faculty Publications

Litigation Outcomes In State And Federal Courts: A Statistical Portrait, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman

Cornell Law Faculty Publications

"U.S. Juries Grow Tougher on Plaintiffs in Lawsuits," the New York Times page-one headline reads. The story details how, in 1992, plaintiffs won 52 percent of the personal injury cases decided by jury verdicts, a decline from the 63 percent plaintiff success rate in 1989. The sound-byte explanations follow, including the notion that juries have learned that they, as part of the general population, ultimately pay the costs of high verdicts. Similar stories, reporting both increases and decreases in jury award levels, regularly make headlines. Jury Verdict Research, Inc. (JVR), a commercial service that sells case outcome information, often is …

The Contested Role Of The Civil Jury In Business Litigation, Valerie P. Hans

Cornell Law Faculty Publications

According to a recent study, several of the most frequent criticisms of the jury in business cases--that it is pro-plaintiff, that its decisions are based more on sympathy and prejudice than facts, and that it focuses on the defendant's deep pockets--appear to be unfounded.

Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this.

Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …

Courts In Cyberspace, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

Trial By Jury Or Judge: Which Is Speedier?, Theodore Eisenberg, Kevin M. Clermont

Cornell Law Faculty Publications

Many take as a given that jury-tried cases consume more time than judge-tried cases. Judge Richard Posner of the Seventh Circuit, for example, opines: “Court queues are almost always greatest for parties seeking civil jury trials. This makes economic sense. Such trials are more costly than bench trials both because of jury fees (which … understate the true social costs of the jury) and because a case normally takes longer to try to a jury than to a judge …. Parties are therefore “charged” more for jury trials by being made to wait in line longer.”

A close reading reveals …

The Civil Rights Remedy Of The Violence Against Women Act: Legislative History, Policy Implications & Litigation Strategy, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Allocating The Burden Of Proof In Sales Litigation, Alex Stein

Faculty Scholarship

No abstract provided.

Pretrial Publicity In Criminal Cases Of National Notoriety: Constructing A Remedy For The Remediless Wrong, Robert M. Hardaway, Douglas B. Tumminello

Sturm College of Law: Faculty Scholarship

Part I of this Article examines the history of pretrial publicity in American courts and explores the values that the Sixth Amendment seeks to protect. Part II criticizes the Supreme Court's current approach to the pretrial publicity problem. Part III analyzes case studies of nationally notorious trials. Part IV explores remedial measures reasonably calculated to nullify the effects of prejudicial publicity and cases in which a trial judge's omission of those measures constitutes reversible error. Finally, this Article concludes by setting forth a proposed standard that should be applied in order to ensure the defendant's right to a fair trial …

Assessing The Efficacy Of School Desegregation, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Legislative Development, The Attorney Accountability Act: A Case Study Of The Complexities Of Incentive-Based Legal Reform, Jamie S. Henikoff, Scott R. Peppet

Publications

No abstract provided.

Section 1983 Litigation, Martin A. Schwartz

Scholarly Works

No abstract provided.

The Pentium Papers: A Case Study Of Collective Institutional Investor Activism In Litigation, Joseph A. Grundfest, Michael A. Perino

Faculty Publications

This article suggests that institutional investors have rational incentives to become more active in the litigation arena, but that the current debate is falsely constrained because it rests on the assumption that institutional investors must participate either by (1) assuming the formal role of lead plaintiff, class representative, or intervenor or, (2) not participating at all. This is a false dichotomy because, as this article demonstrates, institutions have available to them a rich array of flexible, informal, and relatively inexpensive mechanisms by which they can make their views known to litigants and courts alike.

Our hypothesis that institutional investor activism …

What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the …

Attempted Cap On Punitive Damages Continues To Spark Debate, Susan J. Becker

Law Faculty Articles and Essays

The debate surrounding federal product liability law has not been silenced by recent compromises reached by the House and Senate regarding appropriate boundaries for such laws. To the contrary, President Clinton's threatened veto of Congress's Common Sense Product Liability Reform Act of 1996 and continued opposition by the ABA Section of Litigation and other groups to parts of the Act guarantee that the 20-year-old debate will continue to rage.

"Loser Pays" Loses Again, Susan J. Becker

Law Faculty Articles and Essays

The most recent congressional attempts to mandate "loser pays" rules for attorneys' fees in many federal civil cases have lost out--at least for the time being--but the push for such legislation has prompted the ABA to adopt a "loser pays" proposal of its own.

The After-Acquired Evidence Rule: The Best Of All Possible Worlds?, Sharona Hoffman

Faculty Publications

No abstract provided.

Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Class Action Rule Changes: A Midpoint Report, Edward H. Cooper

Articles

This a midpoint progress report of the Reporter on current proposals to amend the class action rule, Rule 23 of the Federal Rules of Civil Procedure. In part, it is one of many calls for help. The proposed amendments have been published for comment. It is important that the rulemakers hear from as many interested observers as possible. One of the pitfalls of the comment process - at least one of the pitfalls that the rulemakers like to believe in - is that there are many observers who believe that the rulemakers have got it right, and do not need …

Representing The Unrepresented In Class Action Settlements, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this article, Messrs. Wolfman and Morrison argue that in "settlement class actions" the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, …

Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold

Articles

In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. …

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

Scholarly Works

The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

Scholarly Works

Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

In-Kind Class Action Settlements, Scott R. Peppet

Publications

No abstract provided.

An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk

All Faculty Scholarship

When plaintiffs cannot predict the outcome of litigation with certainty, neither the American rule (each litigant bears its own litigation expenses) nor the British rule (the losing litigant pays the attorneys' fees of the winning litigant) would induce optimal decisions to bring suit. Plaintiffs may bring frivolous suits when litigation costs are small relative to the amount at stake; plaintiffs may not bring meritorious suits when litigation costs are large relative to this amount. More general fee-shifting rules are based not only on the identity of the winning party but also on how strong the court perceives the case to …