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Lawyers' Ethics Beyond The Vanishing Trial: Unrepresented Claimaints, De Facto Aggregations, Arbitration Mandates, And Privatized Processes, Judith Resnik 2017 Fordham Law School

Lawyers' Ethics Beyond The Vanishing Trial: Unrepresented Claimaints, De Facto Aggregations, Arbitration Mandates, And Privatized Processes, Judith Resnik

Fordham Law Review

Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. The conveners have wisely drawn attention to the disjuncture between legal ethics and today’s litigation world. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics need to address in the decades to come.


The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis 2017 Indiana Univeristy, Maurer School of Law

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Fordham Law Review

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.


Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner 2017 UC Hastings College of Law

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.


Closure Provisions In Mdl Settlements, D. Theodore Rave 2017 University of Huston Law Center

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the ...


What Does It Mean To Say That Procedure Is Political?, Dana S. Reda 2017 Peking University School of Transactional Law

What Does It Mean To Say That Procedure Is Political?, Dana S. Reda

Fordham Law Review

Procedure is not the first field of law to face controversy along these lines. Law’s independence from politics, in both its descriptive and normative aspects, is a century long legal challenge.9 This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized.


Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding 2017 Stanford Law School

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall ...


The Bellwether Settlement, Adam S. Zimmerman 2017 Loyola Law School

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.


Erie Step Zero, Alexander A. Reinert 2017 Benjamin N. Cardozo School of Law

Erie Step Zero, Alexander A. Reinert

Fordham Law Review

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong. To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy ...


Constraining Monitors, Veronica Root 2017 Notre Dame Law School

Constraining Monitors, Veronica Root

Fordham Law Review

Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a ...


What Does It Mean To Say That Procedure Is Political?, Dana S. Reda 2017 Peking University School of Transactional Law

What Does It Mean To Say That Procedure Is Political?, Dana S. Reda

Fordham Law Review

Procedure is not the first field of law to face controversy along these lines. Law’s independence from politics, in both its descriptive and normative aspects, is a century long legal challenge.9 This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized.


Constraining Monitors, Veronica Root 2017 Notre Dame Law School

Constraining Monitors, Veronica Root

Fordham Law Review

Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a ...


Busting Up The Pretrial Industry, Andrew S. Pollis 2017 Case Western Reserve University School of Law

Busting Up The Pretrial Industry, Andrew S. Pollis

Fordham Law Review

While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of ...


Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding 2017 Stanford Law School

Due Process Without Judicial Process?: Antiadversarialism In American Legal Culture, Norman W. Spaulding

Fordham Law Review

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall ...


The Bellwether Settlement, Adam S. Zimmerman 2017 Loyola Law School

The Bellwether Settlement, Adam S. Zimmerman

Fordham Law Review

This Article examines the use of bellwether mediation in mass litigation. Bellwether mediations are different from bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether mediations, the parties instead rely on a representative sample of settlement outcomes overseen by judges and court-appointed mediators.


The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis 2017 Indiana Univeristy, Maurer School of Law

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Fordham Law Review

Drawing on these findings, we discuss the pressing need for a wider ethic that applies to transactional attorneys who design binding arbitration clauses within adhesion contracts. We also draw lessons from behavioral legal ethics and social psychology. These lessons reveal that this wider ethic may be endangered by the situational influences that currently operate within law firms (and in-house) due to these two intersecting patterns. We discuss ways of altering the regulatory environment to encourage the wider ethic to flourish.


Erie Step Zero, Alexander A. Reinert 2017 Benjamin N. Cardozo School of Law

Erie Step Zero, Alexander A. Reinert

Fordham Law Review

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong. To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy ...


Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner 2017 UC Hastings College of Law

Restraining Lawyers: From “Cases” To “Tasks”, Morris A. Ratner

Fordham Law Review

These regulatory and market mechanisms for restraining lawyers share a common thread but differ in their purposes, efficacy, and fairness. Despite these differences, the growing intensity of their focus, and their possible amplification of each other, suggest the possibility of the emergence of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.


Closure Provisions In Mdl Settlements, D. Theodore Rave 2017 University of Huston Law Center

Closure Provisions In Mdl Settlements, D. Theodore Rave

Fordham Law Review

Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties—the defendant and the ...


Twenty Reasons To Publish In Dignity, Donna M. Hughes 2017 University of Rhode Island

Twenty Reasons To Publish In Dignity, Donna M. Hughes

Dignity: A Journal on Sexual Exploitation and Violence

No abstract provided.


It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring 2017 Fordham University School of Law

It’S Time For An Intervention!: Resolving The Conflict Between Rule 24(A)(2) And Article Iii Standing, Gregory R. Manring

Fordham Law Review

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.


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