Law Commons^™

Efficiency At The Price Of Accuracy: The Case For Assigning Mdls To Multiple Districts And Circuits, Isaak Elkind

Vanderbilt Law Review

28 U.S.C. § 1407 allows for the centralization of unique cases into a single forum for pretrial purposes. The product is multidistrict litigation, known colloquially as the “MDL.” While initially conceived as a means of increasing efficiency for only particularly massive, complex litigation, MDLs have become pervasive. Today, over fifteen percent of all civil litigation—and fifty percent of all federal civil litigation—is consolidated into MDLs. Yet, MDLs are commonly overconsolidated, such that only one judge presides over hundreds, thousands, or even hundreds of thousands of individual cases at a time. Fewer than three percent of such cases return to their …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

Preventing Foreign-Judgment Country Hopping With A New Transnational Recognition And Enforcement Standard, Ryan Everette

Vanderbilt Journal of Transnational Law

Since the 1990s, a group of plaintiffs from Ecuador has been involved in litigation with what is presently the Chevron Corporation. During the lawsuit in Ecuador’s courts, the plaintiffs’ lawyers took part in deceptive activities that led to an unreliable judgment against Chevron and has resulted in civil liability for the lawyers and an inability to enforce the judgment against Chevron in the United States for the plaintiff class. Over the better part of the last decade, the plaintiffs’ lawyers have sought and failed to enforce the judgment in several countries outside of the United States, leading to a prolonging …

The Standing Of Article Iii Standing For Data Breach Litigants: Proposing A Judicial And A Legislative Solution, Devin Urness

Vanderbilt Law Review

Data breaches are not going away. Yet victims still face uncertainty when deciding whether and where to file cases against companies or other institutions that may have mishandled their information. This is especially true if the victims have not yet experienced a financial harm, like identity theft, as a result of a data breach. Much of the uncertainty revolves around the standing doctrine and the Supreme Court’s guidance (or lack thereof) on what constitutes a substantial risk of harm sufficient to establish an injury in fact. Federal circuit courts have come to divergent results in data breach cases based on …

Lead Plaintiff Incentives In Aggregate Litigation, Charles R. Korsmo, Minor Myers

Vanderbilt Law Review

The lead plaintiff role holds out considerable promise in promoting the deterrence and compensation goals of aggregate litigation. The prevailing approach to compensating lead plaintiffs, however, provides no real incentive for a lead plaintiff to bring claims on behalf of a broader group. The policy challenge is to induce sophisticated parties to press claims not in their individual capacity but instead in a representative capacity, conferring a positive externality on all class members by identifying attractive claims, financing ongoing litigation, and managing the work of attorneys. We outline what an active and engaged lead plaintiff could add to the civil …

Disclosing Prosecutorial Misconduct, Jason Kreag

Vanderbilt Law Review

Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the criminal justice system. Commentators have responded by proposing a range of reforms to increase Brady compliance. Yet these reforms largely ignore the need to remedy the harms from past Brady violations. Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors'Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure because of Brady misconduct. This Article proposes a new remedy …

Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm

Vanderbilt Law Review

First, we have a long way to go to educate judges about the benefit of active judicial management of the discovery process and the proportionality requirement. Second, just telling judges to "go forth and actively manage" without showing them concrete ways to do it in realistic case settings is not going to be effective. I am happy to report that thanks to the hard work of Judge Jeremy Fogel, director of the Federal Judicial Center, the educational programs for new and experienced judges alike now include special emphasis on management of the discovery process and the proportionality requirement. And the …

How We Got Here: A Brief History Of Requester-Pays And Other Incentive Systems To Supplement Judicial Management Of Discovery, E. Donald Elliot

Vanderbilt Law Review

Over the last two decades, a mature academic literature has developed about how we might use incentives as a complement to discretionary judicial decisions for controlling civil discovery. Professor Brian Fitzpatrick and the other organizers of the Vanderbilt Law Review "Future of Discovery" Symposium thought it would make sense to start this symposium by summarizing what has been written previously on the subject in the hope that the next time that the rules advisory committee tries again to solve the problem of properly managing discovery, it might benefit from some of this learning.

A Plan For Reforming Federal Pleading, Discovery, And Pretrial Merits Review, David Rosenberg, Anne Brown, Jaehyun Oh, Benjamin Taylor

Vanderbilt Law Review

We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to …

Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna Shepherd

Vanderbilt Law Review

In this Article, we explain that either a rule requiring both parties to share the costs of discovery ("cost-sharing rule") or a rule creating a risk for both parties that they will bear the entire costs of discovery ("cost-shifting rule") would minimize many of the negative incentives that exist under either a strict producer-pays or requester pays rule. Whereas the producer-pays rule creates incentives for excessive discovery because requesters can externalize the costs of requests and use discovery to impose costs on producing parties to force settlement, requesters under a cost-sharing or cost-shifting rule cannot externalize the costs of discovery …

Discovery And The Social Benefits Of Private Litigation, Paul Stancil

Vanderbilt Law Review

In the era just before the Federal Rules of Civil Procedure went into effect in 1938, federal civil litigation was a different animal.' Although Congress had created several private statutory causes of action before the 1930s,2 the federal civil docket prior to enactment of the Rules consisted primarily of diversity jurisdiction common law cases, labor injunctions and receiverships, and miscellaneous cases brought by the United States, including Prohibition-era "liquor cases" as well as internal revenue and food and drug enforcement. 3 Occasional exceptions notwithstanding, pre-New Deal federal courts hearing private claims functioned primarily as forums for the resolution of discrete, …

Application Of The New "Proportionality" Discovery Rule In Class Actions: Much Ado About Nothing, Robert H. Klonoff

Vanderbilt Law Review

The "proportionality" amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs' bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, I have reviewed every published judicial opinion (approximately 135) between December 1, 2015 and April 30, 2018 that applied the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. …

Discovery Disclosure And Deterrence, Sergio J. Campos, Cheng Li

Vanderbilt Law Review

Courts, practitioners, and scholars have recently expressed concern over the ex post costs of discovery in civil litigation. In this Article, we develop a game theoretic model of litigant behavior to study an overlooked phenomenon-the ex ante effects of discovery on a defendant's incentive to engage in unlawful conduct. We focus on motions to seal, which limit the disclosure of discovered information to the public, but permit disclosure to the court and parties. Specifically, we examine the effect different rules regarding such motions have in deterring defendants from engaging in unlawful behavior. We show that as a rule becomes more …

Opting Out Of Discovery, Jay Tidmarsh

Vanderbilt Law Review

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …

Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules, Linda S. Simard

Vanderbilt Law Review

After more than two decades of vigorous debate, the original Federal Rules of Civil Procedure became effective on September 16, 1938, and ushered in broad provisions for discovery. The need for discovery, however, was not a central theme of the debates that preceded the original codification. Rather, the proponents of the new rules asserted that the Conformity Act of 1872 created uncertainty regarding the procedure that would apply in federal court. This uncertainty caused unnecessary expense and delay, particularly for interstate corporations that felt compelled to retain specialized counsel in every state. Proponents asserted that adoption of trans-substantive rules of …

One-Way Fee Shifting After Summary Judgment, Cameron T. Norris

Vanderbilt Law Review

New, defendant-friendly amendments to the Federal Rules of Civil Procedure took effect in December 2015. Included in the amendments were several provisions designed to curb the cost of discovery. Although modest, the discovery-related provisions created more controversy than perhaps anything the rule makers have done in recent memory. Yet the new amendments were only part of what corporate defendants asked the rule makers to do. Left undone was a much more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. To the surprise of many commentators, the …

A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice, Gordon Mckee, Anne Glover, Francis Rouleau

Vanderbilt Law Review

symposium organized by the Vanderbilt Law Review to discuss the future of discovery in the United States.' More specifically, the topic for discussion was an ongoing debate in the United States about proposals by the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice to adopt a "requestor-pays" discovery rule. In a requestor-pays system, each party pays for the discovery it seeks, which includes the costs of discovery belonging to the other parties to the litigation. It is based on the theory that a requestor-pays rule will encourage each party to manage its own discovery expenses and tailor …

A Proposal To End Discovery Abuse, Alexandra D. Lahav

Vanderbilt Law Review

When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed …

Practitioners' Perception Of Court-Connected Mediation In Five Regions: An Empirical Study, Shahla F. Ali

Vanderbilt Journal of Transnational Law

Courts throughout the world face the challenge of designing court mediation programs to provide opportunities for party-directed reconciliation on the one hand, while ensuring access to formal legal channels on the other. In some jurisdictions, mandated programs require initial attempts at mediation, while in others, voluntary programs encourage party-selected participation. This Article explores the attitudes and perceptions of eighty-three practitioners implementing court mediation programs in five regions in order to understand the dynamics, challenges, and lessons learned from the perspectives of those directly engaged in the work of administering, representing, and mediating civil claims. Given the highly contextual nature of …

How We Got Here: A Brief History Of Requester-Pays And Other Incentive Systems To Supplement Judicial Management Of Discovery, E. Donald Elliott

Vanderbilt Law Review

Over the last two decades, a mature academic literature has developed about how we might use incentives as a complement to discretionary judicial decisions for controlling civil discovery. Professor Brian Fitzpatrick and the other organizers of the Vanderbilt Law Review “Future of Discovery” Symposium thought it would make sense to start this symposium by summarizing what has been written previously on the subject in the hope that the next time that the rules advisory committee tries again to solve the problem2 of properly managing discovery, it might benefit from some of this learning.

Dance Like No One Is Watching, Post Like Everyone Is: The Accessibility Of "Private" Social Media Content In Civil Litigation, Nicole A. Keefe

Vanderbilt Journal of Entertainment & Technology Law

An increasing amount of information about an individual manifests in online activity, specifically through the use of the numerous social media platforms available today. Though these platforms offer users the ability to shield content behind various degrees of privacy options, even the most private information might be accessed in the course of robust legal proceedings. This Note analyzes the accessibility of private social media content in civil litigation through the vehicles of the Federal Rules of Civil Procedure, the Model Rules of Professional Conduct, and the Federal Rules of Evidence. The solution suggests methods for incorporating this new technological medium …

Hidden By Sovereign Shadows: Improving The Domestic Framework For Deterring State-Sponsored Cybercrime, Eric Blinderman, Myra Din

Vanderbilt Journal of Transnational Law

This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that …

The Failed Superiority Experiment, Christine P. Bartholomew

Vanderbilt Law Review

Federal law requires a class action be "supcrior to alternative methods for fairly and efficiently adjudicating the controversy." This superiority requirement has gone unstudied, despite existing for half a century. Thia Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card-subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

Virtual Blinds: Finding Online Privacy In Offline Precedents, Allyson W. Haynes

Vanderbilt Journal of Entertainment & Technology Law

A person in a building shows a desire for privacy by pulling her blinds shut or closing her curtains. Otherwise, she cannot complain when her neighbor sees her undressing from the window, or when a policeman looks up from the street and sees her marijuana plants. In the online context, can we find an analogy to these privacy blinds? Or is the window legally bare because of the nature of the Internet?

This Article argues that by analyzing the privacy given to communications in the offline context, and in particular, by analyzing case law recognizing privacy in an otherwise public …

Splitting The Baby: Standardizing Issue Class Certification, Jenna G. Farleigh

Vanderbilt Law Review

The Bible depicts King Solomon resolving a dispute between two women who claimed to be the mother of the same child. In the pursuit of justice, King Solomon threatened to do the unthinkable- slice the child in two. Although severing children is not a recommended vehicle for justice, severing lawsuits is. In fact, in the class-action context, the "issue class" established by Federal Rule of Civil Procedure 23(c)(4) does just what King Solomon threatened-it severs litigation into pieces, allowing aggregate treatment of only certain issues in a given lawsuit. Residual issues are left to be determined in plaintiff-specific, follow-on suits. …

Cleaning Up Punitive Damages: A Statutory Solution For Unguided Punitive-Damages Awards In Maritime Cases, Richard A. Chastain

Vanderbilt Law Review

Intentionally destroying property-boundary markers by sawing down the posts.' Causing environmental disasters. Fraudulently refusing to settle insurance claims within coverage limits. Bad-faith dealing in big oil contracts. Hiding mild weather damage to new vehicles. Creating and marketing cigarettes while knowing about their carcinogenic risks. Contributing to automobile accidents. No, these are not items on some nefarious villain's to-do list. These are all examples of cases where courts have awarded punitive damages against the tortfeasors on top of their compensatory liability. While each tort is unquestionably wrong, some certainly appear more wrong than others.

In recent years, punitive damages have become …

Is That Really Me?: Social Networking And The Right Of Publicity, Rachel A. Purcell

Vanderbilt Journal of Entertainment & Technology Law

Social networking websites are ubiquitous in modern culture and popular with people of all ages and demographics. Operators of this kind of site, which consist largely of third party generated content, are immune from many types of civil liability for third party postings under the Communications Decency Act. However, the Act does not immunize these providers from intellectual property right infringements. Recent court decisions suggest that this immunity exception may extend not only to federal intellectual property rights, but state intellectual property rights like the right of publicity. This Note will evaluate the emerging circuit split regarding state intellectual property …

A Generation Of Racketeers? Eliminating Civil Rico Liability For Copyright Infringement, Julie L. Ross

Vanderbilt Journal of Entertainment & Technology Law

This article addresses questions raised in recent years by the increasingly severe penalties for copyright infringement, focusing on potential civil RICO liability as illustrated by a hypothetical peer-to-peer file-sharing example. Because civil litigation has been, by a wide margin, the favored means for pursuing copyright violators, the criminal copyright infringement statute remains largely untested, and the few cases that address its provisions offer conflicting interpretations. Now that RICO penalties are available in civil copyright infringement cases, courts faced with resolving the ambiguities in the application of the criminal copyright infringement provisions will need to reconcile divergent policies. To effectuate its …

Will Aggregate Litigation Come To Europe?, Samuel Issacharoff, Geoffrey P. Miller

Vanderbilt Law Review

The current wave of deregulation and market liberalization in Europe has had major repercussions for the prospect of litigated forms of collective redress. Once decried as the perversity of rapacious Americans, class actions are now the focus of significant reform efforts in many European countries and even at the level of the European Union. There are, no doubt, many reasons for the relatively sudden attention to means of collective redress. Some have to do with the need to create effective ex post accountability mechanisms to contain the potential adverse effects of goods and services freely entering the market. Others seek …

International Law's Mixed Heritage: A Common/Civil Law Jurisdiction, Colin B. Picker

Vanderbilt Journal of Transnational Law

This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article …