Law Commons^™

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter Nash Swisher

University of Richmond Law Review

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products.Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.

Split On Sanctioning Pro Se Litigants Under 28 U.S.C. 1927: Choose Wisely When Picking A Side, Eighth Circuit, The, Kelsey Whitt

Missouri Law Review

In recent years, an increasing number of pro sel litigants have appeared in federal courts. Between October 2003 and September 2004, federal district courts had over 20,000 cases filed by pro se litigants. In fact, "pro se litigants appeared in thirty-seven percent of all cases.' The increase of pro se litigation is attributed to several factors, including the rising cost of litigation combined with the decrease of funding for legal services, the negative public perception of lawyers, and the rise of do-it-yourself legal resources. Once pro se litigants enter the federal court system, their presence multiplies the resources spent by …

Should Summary Judgment Be Granted?, Bradley Scott Shannon

American University Law Review

This article discusses (and criticizes) the recent change from "shall" to "should" in Federal Rule of Civil Procedure 56 to describe the standard by which a federal district court is to decide a "properly made and supported" motion for summary judgment. The article concludes that the text of Rule 56, which formally provided that such a motion "shall" be granted, cannot plausibly be construed as meaning "should"; that this change was not supported by those authorities cited by the Federal Civil Rules Advisory Committee; and that, as a normative matter, "should" is an inappropriate standard in this context. Federal district …

Defense Costs And Insurer Reserves In Medical Malpractice And Other Personal Injury Cases: Evidence From Texas, 1988-2004, Bernard Black, David A. Hyman, Charles Silver, William M. Sage

Faculty Scholarship

We study defense costs for commercially insured personal injury tort claims in Texas over 1988–2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers’ hourly rates. We study medical malpractice (“med mal”) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense …

Soboba Band Of Luiseño Indians Water Rights Settlement Act Of 2008, United States 110th Congress

Native American Water Rights Settlement Project

Federal Legislation: Soboba Band of Luiseño Indians Settlement Act, PL 110-297, 122 Stat. 2975 (July 31, 2008). The Act ratifies the Settlement Agreement dated June 7, 2006, between the Soboba Band of Luiseño Indians, US, Eastern Municipal Water District, Lake Hemet Municipal Water District and Metropolitan Water District of Southern CA. The Tribe will receive an adequate and secure future water supply (9,000 acre-feet per year); $18 million from Eastern and Lake Hemet water districts for economic development; $11 million from the federal government for water development; and 128 acres of land near Diamond Valley Lake for commercial development. The …

A Strategic Functionalist Approach To International Commercial Mediation, Antonin I. Pribetic

Antonin I. Pribetic

Mediation in the international context is a relatively recent phenomenon. As an Alternative Dispute Resolution (ADR) mechanism, third-party neutral mediation is firmly entrenched in the legal ethos and procedural rules of most common law jurisdictions; such as the United Kingdom, the United States and Canada. However, in the rest of the world, including many European, Latin American and Asian nations with civil law traditions, mediation remains an elusive concept. Some commentators suggest this may be due in part to differences in systemic (i.e. adversarial vs. inquisitorial) and cultural (i.e. mediation vs. conciliation) orientations.

This paper considers whether International Mediation is …

Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger

Law and Contemporary Problems

Schlanger talks about jail strip-search cases and its participants. Among the interesting features of these cases is that many different kinds of lawyers work on them. Plaintiffs' lawyers include employees of public-interest organizations; large law firm lawyers, often working pro bono, with a cooperating relationship with such a public-interest organization; lawyers with a private prisoners' rights or police-misconduct practice; and lawyers with a more varied or general class-action practice. This is somewhat unusual; the litigation bar has, by all accounts, grown increasingly specialized over the past several generations.

Due Process And Punitive Damages: An Economic Approach, Keith N. Hylton

Faculty Scholarship

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower …

Oy Vey! The Bernstein Exception: Rethinking The Doctrine In The Wake Of Constitutional Abuses, Corporate Malfeasance And The “War On Terror”, Breana Frankel

Breana Frankel

Abstract OY VEY! THE BERNSTEIN EXCEPTION: RETHINKING THE DOCTRINE IN THE WAKE OF CONSTITUTIONAL ABUSES, CORPORATE MALFEASANCE AND THE “WAR ON TERROR” Breana Frankel, Assistant Professor, Chapman University School of Law The “Bernstein doctrine” is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in act of state cases when it determines that adjudication would not harm U.S.-foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. However, in the more than 50 years since its inception, the Bernstein doctrine has …

Rights And Obligations Of Americans In Mexico Under Immigration Law And Other Areas Of Mexican Law, Jorge A. Vargas

University of Richmond Law Review

No abstract provided.

“Stoneridge And Scheme Liability Under Rule 10b-5: The Case For Private Enforcement.”, Erica L. Finkelson

Erica L Finkelson

This note examines the issue of scheme liability in securities fraud, which was heard on October 9, 2007 before the Supreme Court in Stoneridge Investment Partners, LLS, (Stoneridge) v. Scientific-Atlanta, Inc. and Motorola, Inc. Stoneridge represents shareholders who purchased stock in the cable company Charter Communications, Inc. (Charter). Stoneridge sued Scientific-Atlanta and Motorola for fraud because these companies knowingly agreed to let Charter overpay them for cable boxes and returned those funds to Charter as advertising payments so that Charter could inflate its revenue, misleading investors as to Charter’s book value. This note argues that Scientific-Atlanta and Motorola’s purposeful and …

Litigation And The Optimal Combination Of Vague And Precise Clauses In Contracts, Alvaro E. Bustos

Faculty Working Papers

In this paper we determine the optimal combination of precise and vague clauses written in contracts when the parties face writing and enforcement costs, the second ones in the form of litigation. We show that the parties may prefer to write vague instead of precise clauses not only because they are cheaper to write but also because they are cheaper to enforce. We extend Battigalli and Maggi (2002) to model the decision of a principal who chooses clauses to describe the actions that an agent has to perform. As both players observe nature imperfectly they may call for a court …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

Hedonic Adaptation And The Settlement Of Civil Lawsuits (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

This paper 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 a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Hedonic Adaptation And The Settlement Of Civil Lawsuits (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

Christopher J. Buccafusco

This paper 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 a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Antidumping And Cotton Subsidies: A Market-Based Defense Of Unfair Trade Remedies, Nadia E. Nedzel

Northwestern Journal of International Law & Business

This article argues that trade remedies, problematic though they may be, provide a legal framework in which litigation can and must be promulgated to protect the benefits of a global market economy.

Tobacco Litigation Without The Smoke? Cigarette Companies In The Smokeless Tobacco Industry, Micah L. Berman

Journal of Health Care Law and Policy

No abstract provided.

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande

Faculty Publications

This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …

Health Courts?, Philip G. Peters Jr.

Faculty Publications

This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a …

The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty

NYLS Law Review

No abstract provided.

Institutional Reform Litigation, Leonard Koerner

NYLS Law Review

No abstract provided.

A Democratic Theory Of Amicus Advocacy, Ruben J. Garcia

Scholarly Works

Amicus curiae ("friend of the court”) participation in litigation has flourished in recent years as many groups and individuals seek to influence the outcome of litigation. Amicus filers are not parties and judges have wide discretion to reject amicus briefs if they believe that the amicus participation does not add anything to the briefs already filed by the parties. In three recent cases, Seventh Circuit Court of Appeals Judge Richard Posner has rejected amicus filings and promised to closely scrutinize applications to file amicus briefs in the future. Judge Posner's influence has led an increasing number of judges, primarily at …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

Arbitrating Human Rights, Roger P. Alford

Journal Articles

Corporate liability for human rights abuses is one of the most important developments in current international law and practice. With the advent of human rights litigation against corporations, there is now the prospect of a deep-pocket defendant that is complicit in grave human rights abuses, subject to personal jurisdiction, and not immune from suit. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrong-doer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about …

Emotional Adaptation And Lawsuit Settlements, Peter H. Huang

Publications

In Hedonic Adaptation and the Settlement of Civil Lawsuits, Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur note an unexplored aspect of protracted lawsuits: During prolonged litigation tort victims can adapt emotionally to even permanent injuries, and therefore are more likely to settle--and for less--than if their lawsuits proceeded faster. This Response demonstrates that this is a facile application of hedonic adaptation with the following three points. First, people care about more than happiness: Tort victims may sue to seek justice or revenge; emotions in tort litigation can be cultural evaluations; and people are often motivated by identity and …

A Winning Solution For Youtube And Utube? Corresponding Trademarks And Domain Name Sharing, Jacqueline D. Lipton

Articles

In June of 2007, the United States District Court for the Northern District of Ohio ruled on a motion to dismiss various claims against the Youtube video-sharing service. The claimant was Universal Tube and Rollform Equipment Corp ("Universal"), a manufacturer of pipes and tubing products. Since 1996, Universal has used the domain name utube.com - phonetically the same as Youtube's domain name, youtube.com. Youtube.com was registered in 2005 and gained almost-immediate popularity as a video-sharing website. As a result, Universal experienced excessive web traffic by Internet users looking for youtube.com and mistakenly typing utube.com into their web browsers. Universal's servers …