Democratic Enforcement? Accountability And Independence For The Litigation State, 2017 Duke Law School
Democratic Enforcement? Accountability And Independence For The Litigation State, Margaret H. Lemos
No abstract provided.
Análisis Económico De La Prueba De Oficio, 2016 Universidad Nacional del Sur, Bahia Blanca, Argentina
Análisis Económico De La Prueba De Oficio, Sebastian Gabriel Arruiz
The Latin American and Iberian Journal of Law and Economics
The aim of this article is to analyze the consequences of proof ordered by the judge on his own, without any party request, in an adversarial trial.
I will demonstrate that proof ordered by the court on its own is against an adversarial system because it violates the principle of judicial impartiality. I will also conclude that this kind of proof is inefficient because it replaces activity that might be fulfilled by the parties with lower costs; it reduces the incentives for the parties to prove; it introduces distortions in legal professional services; and it increases the probability of making ...
Fiat Lux: Tracing A Standard Of Review For Class Certification Orders, 2016 California Superior Court (San Francisco)
Fiat Lux: Tracing A Standard Of Review For Class Certification Orders, Curtis E.A. Karnow
Curtis E.A. Karnow
Repeat Players In Multidistrict Litigation - The Social Network.Docx, 2016 University of Georgia School of Law
Repeat Players In Multidistrict Litigation - The Social Network.Docx, Elizabeth Chamblee Burch, Marjorie S. Williams
Elizabeth Chamblee Burch
Monopolies In Multidistrict Litigation, 2016 University of Georgia School of Law
Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
The Law And Ethics Of Civil Depositions , 2016 Selected Works
The Law And Ethics Of Civil Depositions , A. Darby Dickerson
No abstract provided.
The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi
Brooklyn Journal of Corporate, Financial & Commercial Law
The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets; protects consumers; and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades; and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010; the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without ...
The Beast Of Burden In Immigration Bond Hearings, 2016 Boston College
The Beast Of Burden In Immigration Bond Hearings, Mary Holper
In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper
No abstract provided.
Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, 2016 University of Maryland Francis King Carey School of Law
Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin
After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab ...
An Opt-In Option For Class Actions, 2016 UC Hastings College of the Law
An Opt-In Option For Class Actions, Scott Dodson
Michigan Law Review
Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or ...
"Arising From" Villanova Law Review: Villanova Law Review's Analysis Of Personal Jurisdiction, 2016 Villanova University Charles Widger School of Law
"Arising From" Villanova Law Review: Villanova Law Review's Analysis Of Personal Jurisdiction, Teressa E. Ravenell
Villanova Law Review
No abstract provided.
Modern Notice Through The Lens Of Eisen And Mullane, 2016 Texas A&M University School of Law
Modern Notice Through The Lens Of Eisen And Mullane, Tanya Pierce, Jeanne Finnegan
Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, 2016 Notre Dame Law School
Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer
Joseph P. Bauer
This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a ...
Exiting Litigation, 2016 Notre Dame Law School
Exiting Litigation, Jay Tidmarsh
The American judicial system will face significant challenges in the twenty-first century. One of its immediate challenges is adapting the rules of civil procedure to the stresses under which the civil-justice system operates. Some of the most notable pressures arise from transnational litigation, mass litigation, proliferation of claims against governmental and corporate institutions, and competition from methods of alternative dispute resolution that promise to dispense cheaper, faster, and more satisfying justice.
Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, 2016 Notre Dame Law School
Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson
Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify ...
Auctioning Class Settlements, 2016 Notre Dame Law School
Auctioning Class Settlements, Jay Tidmarsh
Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...
Superiority As Unity, 2016 Notre Dame Law School
Superiority As Unity, Jay Tidmarsh
One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they ...
Cy Pres And The Optimal Class Action, 2016 Notre Dame Law School
Cy Pres And The Optimal Class Action, Jay Tidmarsh
This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the ...
Resolving Cases On The Merits, 2016 Notre Dame Law School
Resolving Cases On The Merits, Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.