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
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 ...
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 ...
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 ...
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.
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 ...
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 ...
Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgements, 2016 Roger Williams University School of Law
Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgements, Tanya Monestier
Law Faculty Scholarship
It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court's jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts ...
The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, 2016 Environmental and Natural Resources Division of the United States Department of Justice
The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch
Michigan Journal of Environmental & Administrative Law
On April 20, 2010, the oil rig Deepwater Horizon exploded in the Gulf of Mexico, killing eleven people and injuring seventeen more. Efforts to stop the spill failed. For the next eighty-seven days, hundreds of millions of barrels of oil poured into the Gulf. This catastrophe not only changed the lives of the families of the dead and injured and the communities who experienced the economic and social disruption of the spill – it challenged the survival of the ecosystem of the ninth largest water body in the world. The oil spill extended fifty miles offshore from Louisiana in the Gulf ...
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 ...
Rjr Nabisco And The Runaway Canon, 2016 Cornell Law School
Rjr Nabisco And The Runaway Canon, Maggie Gardner
Cornell Law Faculty Publications
In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed ...
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.
Trending @ Rwu Law: Professor Niki Kuckes's Post: Video Highlights Litigation Academy: September 20, 2016, 2016 Roger Williams University School of Law
Trending @ Rwu Law: Professor Niki Kuckes's Post: Video Highlights Litigation Academy: September 20, 2016, Niki Kuckes
Law School Blogs
No abstract provided.
The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, 2016 University of Pennsylvania Law School
The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach
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 ...
The Right To Reimbursement: Nevada Courts Should Follow The Trend And Forbid Insurers From Seeking Recoupment Of Defense Costs, 2016 University of Nevada, Las Vegas -- William S. Boyd School of Law
The Right To Reimbursement: Nevada Courts Should Follow The Trend And Forbid Insurers From Seeking Recoupment Of Defense Costs, Kristen Matteoni
Nevada Law Journal
No abstract provided.
Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, 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, 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.