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Full-Text Articles in Litigation
Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, Jonah B. Gelbach
Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, Jonah B. Gelbach
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Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them. Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action. I …
Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch
Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch
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The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …
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
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
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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 …