Law Commons^™

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law Review

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers, though not entirely immune to the effects of cognitive illusions that have been shown to …

Market Share Liability Beyond Des Cases: The Solution To The Causation Dilemma In Lead Paint Litigation?, Donald G. Gifford, Paolo Pasicolan

South Carolina Law Review

No abstract provided.

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development.

If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts, the …

State Legislative Update, Melissa Blair, Michael Benton, Jessica Gunder, David Lefevre

Journal of Dispute Resolution

As of December 1, 2006, twenty-eight states have enacted some type of right to cure legislation. On April, 28, 2006, Georgia, one of the twenty-eight, amended its construction defect dispute resolution procedures to clarify the responsibilities of the parties. Pennsylvania attempted to become the twenty-ninth, the bill having passed both houses of the legislature, but the Governor vetoed the bill on March 17. Right to cure legislation was considered in South Dakota, but it was deferred to the 36th Legislative Day on February 8, 2006.

Medical Malpractice Litigation And Tort Reform: It's The Incentives, Stupid, David A. Hyman, Charles Silver

Vanderbilt Law Review

Health care providers and tort reformers invariably claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non- negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. They complain that compensation flows almost randomly, winding up …

Why Does The Chesapeake Bay Need Litigators?, Jon A. Mueller, Joseph Tannery

University of Richmond Law Review

No abstract provided.

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Law and Contemporary Problems

In 1994, convicted murderer Stephen Mobley became a cause celebre when he appealed his death sentence before the Georgia Supreme Court in the case of Mobley v. State. Denno describes the potential implications arising from the high-profile case of Stephen Mobley. He sought to introduce a then-cutting-edge theory that violence could be based on a genetic or neurochemical abnormality as mitigating evidence during capital sentencing.

Information, Litigation, And Common Law Evolution, Keith N. Hylton

Faculty Scholarship

It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This article presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop favoring the …

Joinder & Severance Of Offenses, Paul C. Giannelli

Faculty Publications

No abstract provided.

Closing Argument: Prosecution Misconduct, Paul C. Giannelli

Faculty Publications

No abstract provided.

Joinder & Severance Of Defendants, Paul C. Giannelli

Faculty Publications

No abstract provided.

Low-Fat Foods Or Big Fat Lies?: The Role Of Deceptive Marketing In Obesity Lawsuits, Matthew Walker

Georgia State University Law Review

No abstract provided.

Barriers To Accessible Housing: Enforcement Issues In "Design And Construction" Cases Under The Fair Housing Act, Robert G. Schwemm

University of Richmond Law Review

No abstract provided.

Introduction To Evidence Stories, Richard O. Lempert

Other Publications

An introduction to Evidence Stories, by Richard Lempert.This publication contains essays by leading evidence scholars discussing the stories behind landmark cases and illuminating principles and materials across the evidence curriculum. The seldom-told stories behind cases where evidence plays a significant role are now told with important illustrations of the development, application, and importance of the rules of evidence.

Barriers To Accessible Housing: Enforcement Issues In “Design And Construction” Cases Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

In the Fair Housing Amendments Act of 1988 (“FHAA”), Congress added “handicap” to the bases of discrimination outlawed by the federal Fair Housing Act (“FHA”) and also enacted three special provisions to further insure equal housing opportunity for persons with disabilities. One of these special provisions—§ 3604(f)(3)(C) —mandates that all new multi-family housing be designed and constructed with seven specified accessibility features.

Despite the accessibility requirements of § 3604(f)(3)(C)—and similar requirements in scores of state and local fair housing laws—a great deal of the multi-family housing built since §3604(f)(3)(C) became effective has failed to include the features mandated by this …

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

What Athletic Departments Must Know About Title Ix And Sexual Harassment, Holly Hogan

Marquette Sports Law Review

No abstract provided.

Los Principios Generales Del Derecho Probatorio Y El Proceso Civil, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

This article, written and published for a Spanish speaking audience, provides with a critical comparative overview of the principles of civil procedure and of the law of evidence.

Peer To Patent: Collective Intelligence And Intellectual Property Reform, Beth Simone Noveck

Articles & Chapters

No abstract provided.

Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish

Journal Articles

An important debate is currently underway in the inter-American human rights system involving the proper approach litigators, adjudicators, and advocates should take to supranational litigation of economic, social and cultural rights. Centered on questions of jurisdiction and the proper characterization and limits of justiciability, its resolution has tremendous implications for the tools available to on-the-ground advocates, their real-world effectiveness and sustainability in adjudicatory and advocacy contexts alike, and the rationalization of the system's developing jurisprudence over the long-term.

This article book-ends a trilogy of pieces appearing in the NYU Journal of International Law and Politics by two sets of authors, …

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …

Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron

Articles, Book Chapters, & Popular Press

The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …

Access To Justice And The Evolution Of Class Action Litigation In Australia, Camille Cameron, Bernard Murphy

Articles, Book Chapters, & Popular Press

The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …

Identification Of Trade Secret Claims In Litigation: Solutions For A Ubiquitous Dispute, Charles Tait Graves, Brian D. Range

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey

Scholarly Works

This is a short piece written for the AAA's Dispute Resolution Journal on two competing provisions in Section 4 of the FAA. One provision tells district courts to compel arbitration in accordance with the parties' agreement, including any forum selection clause. The other says that the court can compel arbitration only within its own territory. This, of course, creates a problem when the forum selection clause calls for arbitration in another jurisdiction. This short article addresses the conflict, showing how courts tend to rule on the issue (as of 2006).

"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson

Publications

No abstract provided.

The Growth Of Cost-Shifting In Response To The Rising Cost And Importance Of Computerized Data In Litigation, Ross Chaffin

Oklahoma Law Review

No abstract provided.

The Ghost Of Alan Freed: An Analysis Of The Merit And Purpose Of Anti-Payola Laws In Today's Music Industry, Kristen Lee Repyneck

Villanova Law Review

No abstract provided.

What We Know And What We Should Know About American Trial Trends, Margo Schlanger

Journal of Dispute Resolution

This brief essay first summarizes some of that knowledge-in particular, the chief features we know about the shrinking civil trial docket in federal district courts. Next, it proposes four areas of future investigation necessary to understand the contours of the trend and to assess its causes. Then, I bring together the causal hypotheses that have already been proposed, none of which has yet been securely tested. Finally, in an appended bibliography, I list data sources, reports, and scholarly analyses that will be useful to those doing future work.