Litigation Commons^™

Holding Up And Holding Out, Colleen V. Chien

Michigan Telecommunications and Technology Law Review

Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it is most vulnerable—after it has implemented a technology—and is able wrest a settlement because it is too late for the company to change course. Patent “hold-out” is the practice of companies routinely ignoring patents and resisting patent owner demands because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises, and the ex ante assertion of technology patents whether in the smartphone war, standards, or patent ...

Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner

Matthew Adam Bruckner

In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article.

In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify ...

For Men Only: A Gap In The Rules Makes Sex Discrimination In The Client Selection Process Ethical, Michele N. Struffolino

Michele N Struffolino

For Men Only: A Gap in the Rules Makes Sex Discrimination in the Client Selection Process Ethical

By Professor Michele N. Struffolino

ABSTRACT

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The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?

Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only ...

The Economics Of Civil Procedure, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

This survey of the economic analysis of procedure focuses on dispositive motions, discovery, and jurisdiction. The economic analysis of procedure reduces most issues to direct costs and error costs. Direct costs are ordinary litigation costs. Error costs are the reduction in deterrence and the increase in chilling that result from inaccurate adjudication. The goal of procedure is the minimization of the sum of direct and error costs. This framework has been applied to many procedural issues, and this survey focuses on three: dispositive motions (motions to dismiss and summary judgment), discovery, and jurisdiction. Because theory is often indeterminate, this survey ...

Inside The Caucus: An Empirical Analysis Of Mediation From Within, Daniel M. Klerman, Lisa Klerman

University of Southern California Legal Studies Working Paper Series

This article provides a rare glimpse into the worlds of mediation and settlement negotiation. Because they are almost always private, there has been almost no empirical analysis of the dynamics of settlement or mediation. This article analyzes a unique data set derived from a mediator’s contemporaneous notes of more than four hundred mediations. Nearly all the cases involved employment disputes, such as claims of discrimination or wrongful termination. Among the most interesting facts uncovered by this analysis are the following. Mediation can be extremely effective in facilitating settlement. The mediator studied here achieved a settlement rate of over 94 ...

The Brazilian Appellate Procedure Through Common Law Lenses: How American Standards Of Review May Help Improve Brazilian Civil Procedure, Cesar Zucatti Pritsch

Cesar Zucatti Pritsch

In this article, we address a flaw in Brazilian civil procedure observed in our practice as a Federal Labor Judge in Brazil, an issue that may be addressed by limiting appellate review in a similar fashion as the American courts do, using standards of appellate review.

In Brazil, appellate courts tend to ignore the lower court’s decisions, replacing them for the ruling they would have made had they been the original decision makers. A simple disagreement with the lower court’s findings of fact or discretionary rulings, no matter how reasonable, is sufficient grounds for reversal.

The lack of ...

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into ...

Forum Selling, Daniel M. Klerman, Greg Reilly

University of Southern California Legal Studies Working Paper Series

Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, and ...

Buying Time In Spain: The Spanish Law Of Installment Sales, John M. Steadman

Georgia Journal of International & Comparative Law

No abstract provided.

A Case For Canadian Pay Equity Reform, Sydney Kruth

Western Journal of Legal Studies

Pay equity must be separated from collective bargaining. An examination of the history of fair pay in unionized workplaces—and the current legal remedies available for pay discrimination—prove that the current strategies to remedy the significant gender pay gap are unsuccessful. Two significant issues hinder pay equity. Pay equity is still subject to collective bargaining in unionized workplaces. The Public Sector Equitable Compensation Act (PSECA) has undermined pay equity. The PSECA embodies the dangers of subjecting pay equity issues to collective bargaining. Canada is taking a regressive approach that disregards the importance of pay equity, despite the known benefits ...

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims ...

Predictions For 2015: Npe Patent Litigation, Jodi Benassi

Jodi Benassi

No abstract provided.

Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul

University of Michigan Journal of Law Reform

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters ...

A Guide To New York State Commercial Landlord-Tenant Law And Procedure—Part I, Gerald Lebovits

Gerald Lebovits

No abstract provided.

Drafting New York Civil-Litigation Documents: Part Xxxix—Motions To Vacate A Default Judgment Continued, Gerald Lebovits

Gerald Lebovits

No abstract provided.

Disappearing Claims And The Erosion Of Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence in the last five years represents the culmination of a three-decade long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. As scholars have traced, privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process. Accordingly, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. In this piece I argue that the Court’s recent arbitration jurisprudence undermines the public law ...

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

Faculty Scholarship

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that ...

Procedure And Pragmatism, Stephen B. Burbank

Faculty Scholarship

In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo ...

Everything Is Presumed In Texas, Benjamin Walther

Benjamin Walther

As this Article will reveal, the Fifth Circuit has traditionally been loath to apply the presumption against preemption in most cases. Texas courts, on the other hand, have consistently employed a particularly strong application of the presumption to all types of preemption cases. This inconsistency between these two jurisdictions creates an incentive for forum shopping. Generally, the courts rely on a defendant’s ability to remove a case to the federal courts to counteract the plaintiff’s exclusive power to decide the forum. This ability, however, is not available to a defendant within the context of preemption cases. As such ...

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further ...