Open Access. Powered by Scholars. Published by Universities.®

Litigation Commons

Open Access. Powered by Scholars. Published by Universities.®

Discipline
Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 4503

Full-Text Articles in Litigation

Individual Accountability For Corporate Crime, Gregory Gilchrist Feb 2018

Individual Accountability For Corporate Crime, Gregory Gilchrist

Georgia State University Law Review

Corporate crime is too often addressed by fining the corporation, leaving the real people who committed the crime facing no consequence at all. This failure to hold individuals accountable in cases of corporate malfeasance generates an accountability gap that undermines deterrence and introduces expressive costs. Facing heightened criticism of this trend, then-Deputy Attorney General Sally Yates issued a policy designed to generate prosecutions of real people in cases of corporate wrongdoing. The policy reflects a strong and continuing demand for more prosecutions of individuals in the corporate context.

This Article contends that the effort to introduce accountability by increasing prosecutions ...


Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed Feb 2018

Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed

Georgia State University Law Review

Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence ...


Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams Feb 2018

Not So Good: The Classification Of “Smart Goods” Under Ucc Article 2, Chadwick L. Williams

Georgia State University Law Review

Refrigerators can now tweet. Today, almost sixty years after the states widely adopted the Uniform Commercial Code (UCC), the line between goods and services is more blurred than ever. When the UCC was drafted, a good was the simple opposite of a service. A good was something “movable” and tangible, and a service was not. Article 2 of the UCC, which governs sales, limits its scope to goods.

However, because Article 2 was drafted long before the proliferation of so-called “smart goods,” courts continuously struggle to determine when a smart good falls within Article 2’s scope. Courts have developed ...


Don’T Let The Bed Bugs Bill: Landlord Liability For Bed Bug Infestations In Georgia, Megan M. Harrison Feb 2018

Don’T Let The Bed Bugs Bill: Landlord Liability For Bed Bug Infestations In Georgia, Megan M. Harrison

Georgia State University Law Review

Although the historical relationship between bed bugs and humans dates back to ancient Egypt, the common bed bug, or Cimex lectularius, vanished from the beds of Americans around World War II. In the late 1990s, however, our bloodsucking bedfellows returned. Bed bug infestations are a growing public health issue. Bed bugs are now found in all fifty states, with populations in five states reaching epidemic levels. Both the Environmental Protection Agency (EPA) and the Center for Disease Control and Prevention(CDC) consider bed bugs a “pest of significant public health importance."

Despite their name, bed bugs are not limited to ...


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff Feb 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


Active Promotion Of Useful Arts: Considering The Government's Role In Patent Enforcement, Brian Harris Feb 2018

Active Promotion Of Useful Arts: Considering The Government's Role In Patent Enforcement, Brian Harris

Texas A&M Law Review

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the ...


Inferences From Litigated Cases, Daniel M. Klerman, Yoon-Ho Alex Lee Feb 2018

Inferences From Litigated Cases, Daniel M. Klerman, Yoon-Ho Alex Lee

University of Southern California Legal Studies Working Paper Series

Priest and Klein (1984) argued that, because of selection effects, the percentage of litigated cases won by plaintiffs will not vary with the legal standard. Many researchers thereafter concluded that one could not make valid inferences about the character of the law from the percentage of cases plaintiffs won, nor could one measure legal change by observing changes in that percentage. This article argues that, even taking selection effects into account, one may be able to make valid inferences from the percentage of plaintiff trial victories. First, it analyzes selection effects under asymmetric information models. It shows that, under a ...


Class Action Settlement Residue And Cy Pres Awards: Emerging Problems And Practical Solutions, Wilber H. Boies, Latonia Haney Keith Jan 2018

Class Action Settlement Residue And Cy Pres Awards: Emerging Problems And Practical Solutions, Wilber H. Boies, Latonia Haney Keith

Latonia Haney Keith

Class action settlements often present the court and parties with the practical problem of disposing of residual funds that remain after distributions to class members. The cy pres doctrine is a well-recognized device that permits the court to designate suitable organizations to receive such funds. Recently, academics, judges, practitioners, and professional objectors have mounted a multi-faceted attack on this device, ranging from constitutional and ethical concerns to appeals challenging specific awards. This Article first describes the use of cy pres awards in class action settlements and explains why the constitutional, statutory, and ethical objections are unfounded. This Article then addresses ...


Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel Jan 2018

Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel

Law School Blogs

No abstract provided.


Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant Jan 2018

Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant

Oklahoma Law Review

No abstract provided.


Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron Jan 2018

Ousted: The New Dynamics Of Privatized Procedure And Judicial Discretion, Robin Effron

Faculty Scholarship

No abstract provided.


The Right Balance: Qualified Immunity And Section 1983, Jana Minich Dec 2017

The Right Balance: Qualified Immunity And Section 1983, Jana Minich

Channels: Where Disciplines Meet

This paper explores qualified immunity jurisprudence in the context of Section 1983 lawsuits against police officers. Following an overview of the history behind this jurisprudence, this research looks into the current problems with the application of qualified immunity: lack of guidance for lower courts, a need for constitutional rights articulation, and a divergence from notice-based standard for particularity. This study suggests guiding the trajectory of case law toward solutions with foundations already present in precedent rather than overhauling the system of qualified immunity.


The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas Dec 2017

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

Faculty Scholarship

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger ...


Lessons For Legalizing Love: A Case Study Of The Naz Foundation's Campaign To Decriminalize Homosexuality In India, Preston G. Johnson Dec 2017

Lessons For Legalizing Love: A Case Study Of The Naz Foundation's Campaign To Decriminalize Homosexuality In India, Preston G. Johnson

Capstone Collection

In 1860, British colonizers codified Section 377 into the Indian Penal Code. 377 is an anti-sodomy law based on Victorian/Judeo-Christian values which criminalizes homosexuality through judicial interpretation and the manipulation of ambiguous language. On August 15th, 2017, India celebrated 70 years of independence from British control, yet 377 still exerts oppressive control over the safety and freedom of Indian LGBTQI communities. Defining queerness as perversion has caused LGBTQI individuals to become victims of false accusations, blackmail, harassment, housing and workplace discrimination, familial rejection, forced “conversion therapy”, assault, rape, torture, and even murder because of this power imbalance and ...


Contingent Fee Litigation In New York City, Eric Helland, Daniel M. Klerman, Brenda Dowling, Alexander Kappner Nov 2017

Contingent Fee Litigation In New York City, Eric Helland, Daniel M. Klerman, Brenda Dowling, Alexander Kappner

University of Southern California Legal Studies Working Paper Series

Since 1957, New York courts have required contingent fee lawyers to file “closing statements” that disclose settlement amounts, lawyers’ fees, an accounting of expenses, and other information. This article provides preliminary analysis of these data for the period 2004-2013. Among this article’s findings are that settlement rates in New York state courts are very high (84%) relative to previous studies, that very few cases are resolved by dispositive motions, that litigated cases and settled cases have almost exactly the same average recovery, that median litigation expenses, other than attorney’s fees, are 3% of gross recovery, that claims are ...


Consumer Class Actions: Who Are The Real Winners?, Edward F. Sherman Nov 2017

Consumer Class Actions: Who Are The Real Winners?, Edward F. Sherman

Maine Law Review

The class action is one of the most controversial procedural devices in the American legal system. In the years since an expanded class action rule was adopted in 1966, class actions have grown in scope and number, and suits by consumers have accounted for an increasing share of class actions suits. By allowing individuals to sue not only for themselves, but also on behalf of others similarly situated, the class action “empowers plaintiffs to bring cases that otherwise either would not be possible or would only be possible in a very different form.” Business critics see this as enabling “lawyers ...


Will Bell V. Town Of Wells Be Eroded With Time?, Sidney St. F. Thaxter Nov 2017

Will Bell V. Town Of Wells Be Eroded With Time?, Sidney St. F. Thaxter

Maine Law Review

In 1989, the Maine Law Court issued a landmark decision regarding the ownership of the land between the mean high-water mark and the mean low-water mark (the intertidal zone) in a case entitled Bell v. Town of Wells.1 This decision was controlled, in part, by the 1986 decision in the same case. Bell I was decided following an appeal by the plaintiff-landowners from the lower court decision dismissing Counts I and II of their Complaint as “barred by sovereign immunity.” The lower court found that “the State has an interest in Moody Beach and in that sense it has ...


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. Nov 2017

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


Eat Your Vitamins And Say Your Prayers: Bollea V. Gawker, Revenge Litigation Funding, And The Fate Of The Fourth Estate, Nicole K. Chipi Nov 2017

Eat Your Vitamins And Say Your Prayers: Bollea V. Gawker, Revenge Litigation Funding, And The Fate Of The Fourth Estate, Nicole K. Chipi

University of Miami Law Review

In August 2016, Gawker.com shut down after 14 years of—more often than not—controversial online publishing. The website was one of several Gawker Media properties crushed under the weight of a $140 million jury verdict awarded to Terry Bollea (better known as former professional wrestler Hulk Hogan), in a lawsuit financed by eccentric Silicon Valley billionaire Peter Thiel. Thiel’s clandestine legal campaign was part of a vendetta against Gawker Media, a venture he confirms was singularly focused on bankrupting the company through litigation. His success sent shudders through the media world, demonstrating that determined actors with deep ...


A Halachic Perspective On The Parent-Child Privilege, Erica Smith-Klocek Nov 2017

A Halachic Perspective On The Parent-Child Privilege, Erica Smith-Klocek

The Catholic Lawyer

No abstract provided.


Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn Nov 2017

Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn

Fordham Law Review

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The ...


Deference To The Plaintiff In Forum Non Conveniens Cases, Brett Workman Nov 2017

Deference To The Plaintiff In Forum Non Conveniens Cases, Brett Workman

Fordham Law Review

This Note analyzes several cases in an effort to understand why, based on each case’s unique circumstances, the plaintiff’s choice of forum received a particular level of deference. This Note then produces a synthesized list of factors that alter the level of deference a plaintiff’s choice of forum receives under forum non conveniens analysis. An understanding of these factors provides increased predictability as to when a plaintiff’s choice of forum might receive heightened deference under this common law doctrine.


The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help ...


The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas Oct 2017

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

Steven Davidoff Solomon

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger ...


Small Sustainability Supply: How Small Business And Lean Manufacturing Can Change Supply Chains, Carlos Lopez Oct 2017

Small Sustainability Supply: How Small Business And Lean Manufacturing Can Change Supply Chains, Carlos Lopez

Sustainable Development Law & Policy

No abstract provided.


Benefitting From Sustainable Development, Victoria Frappaolo Oct 2017

Benefitting From Sustainable Development, Victoria Frappaolo

Sustainable Development Law & Policy

No abstract provided.


Batteries Included: Incentivizing Energy Storage, Lindsay Breslau, Michael Croweak, Alan Witt Oct 2017

Batteries Included: Incentivizing Energy Storage, Lindsay Breslau, Michael Croweak, Alan Witt

Sustainable Development Law & Policy

Distributed Energy Storage (“DES”) technologies that allow households and businesses to store substantial amounts of electricity on site are rapidly advancing and could soon have dramatic impacts on the nation’s electricity generation, transmission, and distribution markets. These technologies could provide numerous benefits, including enhanced energy security, grid stability, and greater support for renewable generation technologies, but several obstacles are slowing their adoption throughout the country. Among these obstacles are stubbornly high manufacturing costs and the potential impacts of DES development on utilities and the traditional energy regulatory framework. Fortunately, policymakers in California, New York, Hawaii, and some other states ...


Appraising The Role Of The Ifc And Its Independent Accountability Mechanism: Community Experiences In Haiti’S Mining Sector, Kate Nancy Taylor Oct 2017

Appraising The Role Of The Ifc And Its Independent Accountability Mechanism: Community Experiences In Haiti’S Mining Sector, Kate Nancy Taylor

Sustainable Development Law & Policy

No abstract provided.