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Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin 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

Faculty Scholarship

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 ...


Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, Sara L. Dominey 2016 University of Georgia School of Law

Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, Sara L. Dominey

Georgia Journal of International & Comparative Law

No abstract provided.


The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach 2016 University of Pennsylvania Law School

The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach

Faculty Scholarship

In this paper I introduce what I call the reduced form approach to studying the plaintiff's win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff's and defendant's beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties' subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties' beliefs. I show how models ...


Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, Michael Heise, Martin T. Wells 2016 Cornell Law School

Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, Michael Heise, Martin T. Wells

Cornell Law Faculty Publications

Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg’s analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff’s success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff’s decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff’s decision to defend an appeal of its trial court win brought by a disgruntled defendant. We ...


Kain V. Department Of Environmental Protection, Sarah M. Danno 2016 Alexander Blewett III School of Law at the University of Montana

Kain V. Department Of Environmental Protection, Sarah M. Danno

Public Land and Resources Law Review

Global climate change and its chronic frustrations generated passage of the Massachusetts Global Warming Solutions Act. The Massachusetts Legislature imposed time-bound implementation mandates on the Massachusetts Department of Environmental Protection with Massachusetts residents acting as compliance watchdogs. In Kain, the Supreme Judicial Court of Massachusetts interpreted the Act in favor of environmental integrity and strict agency compliance standards.


The New Governance: 2015 Pomerantz Lecture, Jill E. Fisch 2016 University of Pennsylvania Law School

The New Governance: 2015 Pomerantz Lecture, Jill E. Fisch

Jill Fisch

Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past forty years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”

Delaware law has largely taken ...


After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick 2016 University of Pennsylvania Law School

After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Jill Fisch

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


Vultures Or Vanguards?: The Role Of Litigation In Sovereign Debt Restructuring, Jill E. Fisch, Caroline M. Gentile 2016 University of Pennsylvania Law School

Vultures Or Vanguards?: The Role Of Litigation In Sovereign Debt Restructuring, Jill E. Fisch, Caroline M. Gentile

Jill Fisch

No abstract provided.


The New Governance: 2015 Pomerantz Lecture, Jill E. Fisch 2016 University of Pennsylvania Law School

The New Governance: 2015 Pomerantz Lecture, Jill E. Fisch

Jill Fisch

Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past forty years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.” Delaware law has largely taken ...


Start Making Sense: An Analysis And Proposal For Insider Trading Regulation, Jill E. Fisch 2016 University of Pennsylvania Law School

Start Making Sense: An Analysis And Proposal For Insider Trading Regulation, Jill E. Fisch

Jill Fisch

No abstract provided.


Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch 2016 University of Pennsylvania Law School

Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch

Jill Fisch

No abstract provided.


Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch 2016 University of Pennsylvania Law School

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

Jill Fisch

The lead counsel auction has attracted increasing attention. Auction advocates mgue 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 ...


On Beyond Calpers: Survey Evidence On The Developing Role Of Public Pension Funds In Corporate Governance, Stephen Choi, Jill E. Fisch 2016 NYU Law School

On Beyond Calpers: Survey Evidence On The Developing Role Of Public Pension Funds In Corporate Governance, Stephen Choi, Jill E. Fisch

Jill Fisch

No abstract provided.


Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch 2016 University of Pennsylvania Law School

Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch

Jill Fisch

No abstract provided.


Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen J. Choi, A. C. Pritchard, Jill E. Fisch 2016 New York University

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen J. Choi, A. C. Pritchard, Jill E. Fisch

Jill Fisch

When Congress enacted the Private Securities Litigation Reform Act in 1995 (“PSLRA”), the Act's “lead plaintiff” provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel's compensation. Congress's stated purpose in enacting the lead plaintiff provision was to encourage institutional ...


Cause For Concern: Causation And Federal Securities Fraud, Jill E. Fisch 2016 University of Pennsylvania Law School

Cause For Concern: Causation And Federal Securities Fraud, Jill E. Fisch

Jill Fisch

The Supreme Court’s decision in Dura Pharmaceuticals dramatically changed federal securities fraud litigation. The Dura decision itself said little, but counseled lower courts to fashion new requirements of causation and harm modeled upon common law tort principles. These instructions have led lower courts to craft a series of confusing and inconsistent decisions that incorporate little of the reasoning upon which the common law principles are based. This Article accepts the Dura challenge and examines both common law causation principles and their applicability to federal securities fraud. In so doing, the Article identifies the failure of the federal courts properly ...


Class Action Reform: Lessons From Securities Litigation, Jill E. Fisch 2016 University of Pennsylvania Law School

Class Action Reform: Lessons From Securities Litigation, Jill E. Fisch

Jill Fisch

No abstract provided.


After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick 2016 University of Pennsylvania Law School

After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Jill Fisch

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for ...


Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer 2016 University of Pennsylvania

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

Sean Farhang

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development ...


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