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Articles 1 - 30 of 39
Full-Text Articles in Law
Oral Argument In Meyer V. Holley (No. 01-1120), Robert G. Schwemm, Douglas G. Benedon, Malcolm L. Stewart
Oral Argument In Meyer V. Holley (No. 01-1120), Robert G. Schwemm, Douglas G. Benedon, Malcolm L. Stewart
Law Faculty Advocacy
The matter of Meyer v. Holley, 537 U.S. 280 (2003) was argued before the United States Supreme Court on Tuesday, December 3, 2002. Professor Robert G. Schwemm argued on behalf of the Respondents. This document is a transcript of the oral argument.
The Revolution You Won’T See On Tv, Jeff Rasley
The Revolution You Won’T See On Tv, Jeff Rasley
Scholarship and Professional Work - LAS
Article for Newsweek about the author’s experiences in mediation and jury trials as a civil litigator.
Litigation Realities, Kevin M. Clermont, Theodore Eisenberg
Litigation Realities, Kevin M. Clermont, Theodore Eisenberg
Cornell Law Faculty Publications
After both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the authors draw a series of lessons for understanding and using empirical methods in the study of the legal system's operation. In so doing, they generate implications for current and projected policy debates concerning litigation, while identifying areas that demand further empirical work.
The Problem Of The Expert Juror., Paul F. Kirgis
The Problem Of The Expert Juror., Paul F. Kirgis
Faculty Law Review Articles
In this article, I argue that the new focus on the risks of spurious "expertise" compels attention to the problem of juror expertise. 24 Specialized knowledge poses the same risks to the truth-seeking objectives of trial whether it enters the decision-making process through expert testimony or through the back door of juror background knowledge. In fact, the risks to accuracy may be less when expertise is offered by a witness than when it is introduced by a juror, because the witness will be subject to cross-examination and rebuttal. Flawed expertise brought to the case by a juror is not subject …
Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells
Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells
Cornell Law Faculty Publications
Experimental evidence generated in controlled laboratory studies suggests that the legal system in general, and punitive damages awards in particular, should display an incoherent pattern. According to the prediction, inexperienced decisionmakers, such as juries, should fail to convert their qualitative judgments of defendants' conduct into consistent, meaningful dollar amounts. This Article tests this prediction and finds modest support for the thesis that experience across different types of cases will lead to greater consistency in awards. Despite this support, numerous studies of damage awards in real cases detect a generally sensible pattern of damage awards. This Article tries to reconcile the …
Trial Outcomes And Demographics: Is There A Bronx Effect?, Theodore Eisenberg, Martin T. Wells
Trial Outcomes And Demographics: Is There A Bronx Effect?, Theodore Eisenberg, Martin T. Wells
Cornell Law Faculty Publications
Minorities favor injured plaintiffs and give them inflated awards. This folk wisdom in the legal community influences choice of trial locale and the screening of jurors. A Los Angeles court is said to be known by local lawyers as "the bank" because of the frequency and size of its anti-corporate awards. A newspaper article summarizing court results suggests, somewhat jokingly, that the "Bronx County Courthouse should post a warning: People who get sued here run an increased risk of suffering staggering losses." Beliefs about the influence of factors other than race, such as income and urbanization, also are common.
This …
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
Cornell Law Faculty Publications
In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars.
The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …
"Speaking Rights": Evaluating Juror Discussions During Civil Trials, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman
"Speaking Rights": Evaluating Juror Discussions During Civil Trials, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman
Cornell Law Faculty Publications
Permitting jurors to discuss evidence during civil trials may facilitate understanding and provide an outlet for their thoughts and questions, and does not appear to lead to prejudgment or prejudice.
On The Importance Of Institutions: Review Of Arbitral Awards For Legal Errors, Peter B. Rutledge
On The Importance Of Institutions: Review Of Arbitral Awards For Legal Errors, Peter B. Rutledge
Scholarly Works
In my view, legislatures, rather than courts or parties, should decide whether (and to what extent) courts should review arbitral awards for errors of law. The optimal legislative mechanism should not be compulsory but should offer parties the choice whether to "opt-in" to this regime of expanded review by inserting language to that effect in their arbitration agreement. A legislative solution with an "opt-in" feature has a sounder doctrinal foundation, better respects the distribution of power between various branches of government, involves a lower risk of error and minimizes transaction costs. From this position, two additional conclusions follow: first, courts …
Juries, Judges, And Punitive Damages: An Empirical Study, Theodore Eisenberg, Neil Lafountain, Brian Ostrom, David Rottman, Martin T. Wells
Juries, Judges, And Punitive Damages: An Empirical Study, Theodore Eisenberg, Neil Lafountain, Brian Ostrom, David Rottman, Martin T. Wells
Cornell Law Faculty Publications
This Article, the first broad-based analysis of punitive damages in judge-tried cases, compares judge and jury performance in awarding punitive damages and in setting their levels. Data covering one year of judge and jury trial outcomes from forty-five of the nation's largest counties yield no substantial evidence that judges and juries differ in the rate at which they award punitive damages or in the central relation between the size of punitive awards and compensatory awards. The relation between punitive and compensatory awards in jury trials is strikingly similar to the relation in judge trials. For a given level of compensatory …
The Communities That Make Standards Of Care Possible, Anita Bernstein
The Communities That Make Standards Of Care Possible, Anita Bernstein
Faculty Scholarship
No abstract provided.
Local Federal Civil Procedure For The Twenty-First Century, Carl W. Tobias
Local Federal Civil Procedure For The Twenty-First Century, Carl W. Tobias
Law Faculty Publications
Federal civil procedure is now byzantine. Lawyers and parties face, and federal judges apply, a bewildering panorama of requirements. There are strictures in the Federal Rules of Civil Procedure as well as Title 28 of the United States Code and dozens of substantive statutes. A stunning array of local measures-including local rules; general, special, and scheduling orders; individual-judge practices; and mechanisms that courts adopted under the Civil Justice Reform Act (CJRA) of 1990 to reduce cost and delay-also govern cases in all ninety-four districts. Many of the provisions· are inconsistent or duplicative, while a significant percentage are difficult to discover, …
Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank
Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
In Praise Of Procedure: An Economic And Behavioral Defense Of Smith V. Van Gorkom And The Business Judgment Rule, Lynn A. Stout
In Praise Of Procedure: An Economic And Behavioral Defense Of Smith V. Van Gorkom And The Business Judgment Rule, Lynn A. Stout
Cornell Law Faculty Publications
No abstract provided.
International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris
International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris
Librarians' Articles
Last fall a Symposium at Chicago-Kent College of Law entitled "Constructing International Intellectual Property Law: The Role of National Courts," held on October 18-19, 2001, brought together scholars interested in a group of problems related to the relationship between harmonized rules of international civil procedure and diverse nationally-based rules of intellectual property. Subsequently, extensive discussions between the authors developed this Article into its present form.
Plaintiphobia In The Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, Kevin M. Clermont, Theodore Eisenberg
Plaintiphobia In The Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, Kevin M. Clermont, Theodore Eisenberg
Cornell Law Faculty Publications
Professors Clermont and Eisenberg conducted a systematic analysis of appellate court behavior and report that defendants have a substantial advantage over plaintiffs on appeal. Their analysis attempted to control for different variables that may affect the decision to appeal or the appellate outcome, including case complexity, case type, amount in controversy, and whether there had been a judge or a jury trial. Once they accounted for these variables and explored and discarded various alternate explanations, they came to the conclusion that a defendants' advantage exists probably because of appellate judges' misperceptions that trial level adjudicators are pro-plaintiff.
Judge Harry Edwards: A Case In Point!, Kevin M. Clermont, Theodore Eisenberg
Judge Harry Edwards: A Case In Point!, Kevin M. Clermont, Theodore Eisenberg
Cornell Law Faculty Publications
Judge Harry Edwards dislikes empirical work that is not flattering to federal appellate judges. A few years ago Dean Richard Revesz published an empirical study of the United States Court of Appeals for the D.C. Circuit providing further support for the rather tame proposition that judges’ political orientation has some effect on outcome in some politically charged cases. A year later Judge Edwards published a criticism phrased in extreme terms. Dean Revesz then wrote a devastating reply by which he demonstrated that Judge Edwards “is simply wrong with respect to each of the numerous criticisms that he levels.” We believe …
Clear And Convincing Evidence Of Testamentary Intent: The Search For A Compromise Between Formality And Adjudicative Justice, Emily Sherwin
Clear And Convincing Evidence Of Testamentary Intent: The Search For A Compromise Between Formality And Adjudicative Justice, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
A Civil Discovery Dilemma For The Arizona Supreme Court, Carl W. Tobias
A Civil Discovery Dilemma For The Arizona Supreme Court, Carl W. Tobias
Law Faculty Publications
The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity. This objective was not realized generally or by very many specific jurisdictions. Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act …
Erie Railroad V. Tompkins, Wendy Collins Perdue
Erie Railroad V. Tompkins, Wendy Collins Perdue
Law Faculty Publications
Erie Railroad v. Tompkins 304 U.S. 64 (1938), limited the power of federal courts to create judge-made law that would displace state law. Jurists view the Supreme Court's decision both a modern cornerstone of American judicial federalism and an example of legal realism's influence.
Lessons From The Damages Decisions Following United States V. Winstar Corp., Rodger D. Citron
Lessons From The Damages Decisions Following United States V. Winstar Corp., Rodger D. Citron
Scholarly Works
No abstract provided.
"Business On Trial: The True Story." Review Of Business On Trial: The Civil Jury And Corporate Responsibility, Richard O. Lempert
"Business On Trial: The True Story." Review Of Business On Trial: The Civil Jury And Corporate Responsibility, Richard O. Lempert
Reviews
Jury trials are very much an affair of stories. Lawyers tell stories to juries. Evidence is more convincing when presented in story order. Jurors use stories to make sense of evidence. And litigants, particularly losing litigants, tell stories about juries. One of the favorite stories of losing business litigants, second only to the irrational jury story, is the Robin Hood story. Juries love to play Robin Hood, to steal from the rich (businesses and insurance companies) and to give to the poor (individual litigants, especially individual tort litigants). The storytellers see no mystery here. Jurors are "little guys," like the …
Is The "Adequacy" Standard A More Political Question That The 'Equality' Standard?: The Effect Of Standards-Based Education On Judicial Standards For Education Finance Litigation, Avidan Y. Cover
Faculty Publications
This Note argues that the recent shift in state court litigation from an equality claim to one of adequacy has compelled many courts to insert themselves in the discussion and creation of educational policy that was previously viewed as unacceptable. This evolution may render courts vulnerable to appellate challenges and criticisms of nonjusticiability and political question doctrine violations regarding institutional competence and judicial prudence. In addition, the demise of the equality argument diminishes the moral strength of the court's normative valuation capacity. Section I examines the history of education finance cases and reviews the three waves of litigation strategies, which …
The Practice Of Precedent: Anastasoff, Noncitation Rules, And The Meaning Of Precedent In An Interpretive Community, Lauren K. Robel
The Practice Of Precedent: Anastasoff, Noncitation Rules, And The Meaning Of Precedent In An Interpretive Community, Lauren K. Robel
Articles by Maurer Faculty
No abstract provided.
Transnational Service Of Process And Discovery In Federal Court Proceedings: An Overview, Phillip A. Buhler
Transnational Service Of Process And Discovery In Federal Court Proceedings: An Overview, Phillip A. Buhler
Articles, Book Chapters, & Popular Press
The nature of the maritime business makes it inevitable that much litigation, usually taking place in federal court, involves issues of service of process for the summons and complaint on foreign entities, and that discovery involves efforts to depose witnesses overseas and to collect documents, materials, and information from foreign jurisdictions. This Article is not intended to be an exhaustive treatment of the subject of transnational service of process and discovery. Many articles, in fact whole books, have been written on various aspects of these issues. However, none seem to cover the entire subject. Voluminous case law addresses various aspects …
Hired Guns And Smoking Guns: Mccabe V British American Tobacco Australia Ltd, Camille Cameron
Hired Guns And Smoking Guns: Mccabe V British American Tobacco Australia Ltd, Camille Cameron
Articles, Book Chapters, & Popular Press
Significant ethical and procedural issues raised in the case of McCabe v British American Tobacco Australia Services Ltd - history of events leading to the Supreme Court of Victoria decision, particularly the implementation of the controversial 'Document Retention Policy' - procedural issues, including the role and purpose of discovery, nature of the striking out remedy and extent to which the adversarial system might be to blame for some of the conduct of the defence and its solicitors - ethical issues raised in the case - close links between American and Australian tobacco litigation and the influence of American tobacco lawyers …
The Expiration Of The Civil Justice Reform Act Of 1990, Carl W. Tobias
The Expiration Of The Civil Justice Reform Act Of 1990, Carl W. Tobias
Law Faculty Publications
Ever since the United States Congress passed the Civil Justice Reform Act of 1990 (CJRA), a minor mystery of federal court jurisprudence has been whether - and if so, precisely when - that significant and controversial legislation expired. The measure instituted unprecedented nationwide experimentation with procedures that lawmakers intended to decrease cost and delay in civil litigation, but the statute's implementation additionally balkanized federal practice and procedure.
The Ethics 2000 Process: Revisions To The Aba Model Rules Approved By The Aba House Of Delegates, Irma S. Russell
The Ethics 2000 Process: Revisions To The Aba Model Rules Approved By The Aba House Of Delegates, Irma S. Russell
Faculty Works
This article provides examples of the Ethics 2000 Commission's work and examines a few changes likely to affect lawyers practicing in the environmental arena.
"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main
"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main
Scholarly Works
No abstract provided.
Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel
Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel
Scholarly Works
Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.
Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …