Pro Se Litigation -- Litigating Without Counsel: Faretta Or For Worst, 2016 Selected Works
Pro Se Litigation -- Litigating Without Counsel: Faretta Or For Worst, Susan Herman, Ira P. Robbins
Ira P. Robbins
No abstract provided.
Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-Existing Documents, And The Source Of The Facts Communicated , Paul R. Rice
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 ...
Do The Second Circuit’S Legal Standards On Class Certification Incentivize Forum Shopping?: A Comparative Analysis Of The Second Circuit’S Class Certification Jurisprudence, 2016 Fordham University School of Law
Do The Second Circuit’S Legal Standards On Class Certification Incentivize Forum Shopping?: A Comparative Analysis Of The Second Circuit’S Class Certification Jurisprudence, Shrey Sharma
Fordham Law Review
The Class Action Fairness Act altered the jurisdictional landscape of class actions by relaxing the barriers to satisfying diversity jurisdiction in federal court. As a result, plaintiffs’ attorneys frequently find themselves filing class actions in federal court, and face the critical question of where to initiate their lawsuit. Many plaintiffs’ attorneys consider the favorability of legal standards when determining the forum in which to file their class action. Among other substantive and procedural considerations, the applicable class certification standards of the forum are an important forum selection factor. The Second Circuit, in particular, is a forum that plaintiffs’ attorneys might ...
The Results Of Deliberation, 2016 University of New Hampshire
The Results Of Deliberation, Maggie Wittlin
University of New Hampshire Law Review
When evaluating whether to sue, prosecute, settle, or plead, trial lawyers must predict the future—they need to estimate how likely they are to win a given case in a given jurisdiction. Social scientists have used mock juror studies to produce a vast body of literature showing how different variables influence juror decisionmaking. But few of these studies account for jury deliberation, so they present an impoverished picture of how these effects play out in trials and are of limited usefulness.
This Article helps lawyers better predict the future by presenting a novel computer model that extrapolates findings about jurors ...
Plea Bargaining And Prosecutorial Motives, 2016 University of New Hampshire
Plea Bargaining And Prosecutorial Motives, Charlie Gerstein
University of New Hampshire Law Review
This Article argues that the structure of the plea-bargaining system—which the Supreme Court recently recognized “is the criminal justice system”—hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed ...
Privatization Of The Judiciary, 2016 Seattle University School of Law
Privatization Of The Judiciary, Eldar Haber
Seattle University Law Review
The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime to combat copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by granting rights ...
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
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 ...
The Litigation Budget, 2016 Notre Dame Law School
The Litigation Budget, Jay Tidmarsh
Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly ...
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 ...
In Support Of Huber, 2016 University of New Hampshire
In Support Of Huber, Jon F. Merz
RISK: Health, Safety & Environment
The author takes exception to two recent reviews of GALILEO'S REVENGE.
Improving Predictability And Consistency In Class Action Tolling, 2016 Texas A&M University School of Law
Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce
Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the ...
A Study Of The Costs Of Legal Services In Personal Injury Litigation In Ontario: Final Report, 2016 Osgoode Hall Law School of York University
A Study Of The Costs Of Legal Services In Personal Injury Litigation In Ontario: Final Report, Allan C. Hutchinson
Commissioned Reports, Studies and Public Policy Documents
Contingency Fee Agreements (CFAs) are now a fixed feature of the Ontario litigation landscape. However, little research or study has been done on exactly how they operate in practice, whether they advance the objectives that they were intended to achieve, and whether litigants are best served by the current arrangements. In this study, I intend to make a preliminary start to that research, set out some tentative criticisms of the CFA system as it currently operates, and, where appropriate, suggest preliminary proposals for change.
It should be said at the outset that my efforts to obtain real and serious data ...
The Coupon Quandry: Restructuring Incentives In Cafa Coupon Settlements, 2016 Notre Dame Law School
The Coupon Quandry: Restructuring Incentives In Cafa Coupon Settlements, Michael Gallagher Ii
Notre Dame Law Review
This Note proceeds in five parts. Part I provides a background of coupon settlements with special attention paid to the incentives of class counsel. Part II outlines CAFA’s relevant statutory provisions and examines them in light of the “Purposes” section in the statute and the Senate report accompanying the legislation—the most illuminating indicia of legislative intent. Part III examines the rationale supporting both cases in the circuit split and the implications behind both interpretive regimes. Part IV argues that the Seventh Circuit has the better legal argument for two reasons: (1) its strong textual argument; and (2) its ...
Compensation's Role In Deterrence, 2016 Wake Forest University School of Law
Compensation's Role In Deterrence, Russell M. Gold
Notre Dame Law Review
There are plenty of noneconomic reasons to care whether victims are compensated in class actions. The traditional law-and-economics view, however, is that when individual claim values are small, there is no reason to care whether victims are compensated. Rather than compensation deterring wrongdoing is tort law’s primary economic objective. And on this score, law-and-economics scholars contend that only the aggregate amount of money that a defendant expects to pay affects deterrence. They say that it does not matter for deterrence purposes how that money is split between victims, lawyers, and charities. This Article challenges that claim about achieving tort ...
Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, 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.