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Dispute Resolution and Arbitration Commons™
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Articles 1 - 18 of 18
Full-Text Articles in Dispute Resolution and Arbitration
Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky
Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky
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The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of …
Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy
Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy
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This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …
Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas
Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas
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This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …
Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank
Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank
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In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or …
A Tea Party At The Hague?, Stephen B. Burbank
A Tea Party At The Hague?, Stephen B. Burbank
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In this article, I consider the prospects for and impediments to judicial cooperation with the United States. I do so by describing a personal journey that began more than twenty years ago when I first taught and wrote about international civil litigation. An important part of my journey has involved studying the role that the United States has played, and can usefully play, in fostering judicial cooperation, including through judgment recognition and enforcement. The journey continues but, today, finds me a weary traveler, more worried than ever about the politics and practice of international procedural lawmaking in the United States. …
Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus
Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus
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A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …
Offer-Of-Judgment Rules And Civil Litigation: An Empirical Study Of Automobile Insurance Litigation In The East, Tom Baker, Albert H. Yoon
Offer-Of-Judgment Rules And Civil Litigation: An Empirical Study Of Automobile Insurance Litigation In The East, Tom Baker, Albert H. Yoon
All Faculty Scholarship
No abstract provided.
Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank
Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank
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In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American …
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
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Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …
Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.
Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.
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No abstract provided.
The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang
The Effect Of Offer-Of-Settlement Rules On The Terms Of Settlement, Lucian Arye Bebchuk, Howard F. Chang
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No abstract provided.
A Primer On Prejudgment Interest, Michael S. Knoll
A Primer On Prejudgment Interest, Michael S. Knoll
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No abstract provided.
The Vanishing Precedent: Eduardo Meets Vacatur, Jill E. Fisch
The Vanishing Precedent: Eduardo Meets Vacatur, Jill E. Fisch
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No abstract provided.
Rewriting History: The Propriety Of Eradicating Prior Decisional Law Through Settlement And Vacatur, Jill E. Fisch
Rewriting History: The Propriety Of Eradicating Prior Decisional Law Through Settlement And Vacatur, Jill E. Fisch
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No abstract provided.
Proposals To Amend Rule 68 - Time To Abandon Ship, Stephen B. Burbank
Proposals To Amend Rule 68 - Time To Abandon Ship, Stephen B. Burbank
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No abstract provided.
Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank
Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank
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No abstract provided.
Interjurisdictional Preclusion And Federal Common Law: Toward A General Approach, Stephen B. Burbank
Interjurisdictional Preclusion And Federal Common Law: Toward A General Approach, Stephen B. Burbank
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No abstract provided.
An Historical And Critical Analysis Of Interpleader, Geoffrey C. Hazard Jr., Myron Moskovitz
An Historical And Critical Analysis Of Interpleader, Geoffrey C. Hazard Jr., Myron Moskovitz
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No abstract provided.