Law Commons^™

Urgenda Vs. Juliana: Lessons For Future Climate Change Litigation Cases, Paolo Davide Farah, Imad Antoine Ibrahim

Articles

No abstract provided.

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

Contractual Arbitrage, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Standard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques …

Empty Chair At The Table: Bargaining, Costs And Litigation At The World Trade Organization, Felicia Anneita Grey

Graduate Program in International Studies Theses & Dissertations

This study examines the World Trade Organization (WTO) to test how, if at all, its Dispute Settlement Body (DSB) serves the needs of its members. More specifically, it probes why countries would join the institution, but do not use it if a trade dispute arises. To test this expectation, the study hypothesizes that exorbitant dispute settlement costs can inhibit litigation. This occurs, however, across all dyads and not just when developing and developed countries litigate.

The project uses mixed methods comprising an extensive form game, case studies and the information theory approach for comparative case analysis. The cases selected have …

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

All Faculty Scholarship

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard …

Neither Savior Nor Bogeyman: What Waits Behind The Door Of Third-Party Litigation Financing?, Jeremy Kidd

Jeremy Kidd

The arguments for and against third-party litigation financing are based on incorrect assumptions regarding the impacts on total litigation. A formal model incorporating the choices of plaintiff, lawyer, and financier shows only minimal impact on total litigation, largely positive. However, after addressing the potential for long-term, strategic behavior by financiers, it is obvious that some dangers remain. Divorced from the dramatic claims of proponents and opponents, litigation financing is merely a tool that can be used for good or bad, and differentiating by types of claims and the incentives of the parties allows that tool to be appropriately used.

Medicare Secondary Payer And Settlement Delay, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Medicare Secondary Payer Act of 1980 and its subsequent amendments require that insurers and self-insured companies report settlements, awards, and judgments that involve a Medicare beneficiary to the Centers for Medicare and Medicaid Services. The parties then may be required to compensate CMS for its conditional payments. In a simple settlement model, this makes settlement less likely. Also, the reporting delays and uncertainty regarding the size of these conditional payments are likely to further frustrate the settlement process. We provide results, using data from a large insurer, showing that, on average, implementation of the MSP reporting amendments led to …

Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach

All Faculty Scholarship

No abstract provided.

Mining, Uranium, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides an overview of uranium mining's role and influence in the American West with comparative information on uranium mining in foreign countries.

The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

Locking The Doors To Discovery? Assessing The Effects Of Twombly And Iqbal On Access To Discovery, Jonah B. Gelbach

All Faculty Scholarship

Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for party selection—changes in party behavior that can be expected following changes in pleading standards. In this Note, I show how party selection can be expected to undermine the empirical usefulness of simple grant-rate comparisons. I then use a conceptual model of party behavior that allows me to derive an adjusted measure of Twombly/Iqbal’s impact and show …

Judicial Expenditures And Litigation Access: Evidence From Auto Injuries, Paul Heaton, Eric Helland

Paul Heaton

Despite claims of a judicial funding crisis, there exists little direct evidence linking judicial budgets to court utilization. Using data on thousands of auto injuries covering a 15-year period, we measure the relationship between state-level court expenditures and the propensity of injured parties to pursue litigation. Controlling for state and plaintiff characteristics and accounting for the potential endogeneity of expenditures, we show that expenditures increase litigation access, with our preferred estimates indicating that a 10% budget increase increases litigation rates by 3%. Consistent with litigation models in which high litigation costs undermine the threat posture of plaintiffs, increases in court …

Law In The Shadow Of Bargaining: The Feedback Effect Of Civil Settlements, Ben Depoorter

Ben Depoorter

Lawmakers, courts, and legal scholars often express concern that settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on non-representative settlements. The theoretical and empirical evidence presented in this Essay demonstrates that, despite the widespread use of nondisclosure agreements, information on settlements is distributed both inside and outside legal communities, reaching actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds …

A Winning Solution For Youtube And Utube? Corresponding Trademarks And Domain Name Sharing, Jacqueline D. Lipton

Articles

In June of 2007, the United States District Court for the Northern District of Ohio ruled on a motion to dismiss various claims against the Youtube video-sharing service. The claimant was Universal Tube and Rollform Equipment Corp ("Universal"), a manufacturer of pipes and tubing products. Since 1996, Universal has used the domain name utube.com - phonetically the same as Youtube's domain name, youtube.com. Youtube.com was registered in 2005 and gained almost-immediate popularity as a video-sharing website. As a result, Universal experienced excessive web traffic by Internet users looking for youtube.com and mistakenly typing utube.com into their web browsers. Universal's servers …

Fee-Shifting Rules In Litigation With Contingency Fees, Kong-Pin Chen

Kong-Pin Chen

This article theoretically compares the British and American fee-shifting rules in their influences on the behavior of the litigants and the outcomes of litigation. We build up a comprehensive litigation model with asymmetric information and agency costs, which makes it possible to make comparison on a broad arrays of issues in a single unified framework. We then solve for the equilibria under both American and British rules, and thereby compare their equilibrium settlement amounts and rates, expenditures incurred in trials, as well as the plaintiff’s chances of winning and incentive to sue. The theoretical results are broadly consistent with existing …

Vultures Or Vanguards?: The Role Of Litigation In Sovereign Debt Restructuring, Jill E. Fisch, Caroline M. Gentile

All Faculty Scholarship

The market for sovereign debt differs from the market for corporate debt in several important ways including the risk of opportunistic default by sovereign debtors, the importance of political pressures, and the presence of international development organizations. Moreover, countries are subject to neither liquidation nor standardized processes of debt reorganization. Instead, negotiations between a sovereign debtor and its creditors lead to a voluntary restructuring of the sovereign's debt. One of the greatest difficulties in restructuring claims against sovereign debtors is balancing the interests of the majority of the creditors with those of minority creditors. Holdout creditors serve as a check …

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

ExpressO

This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates …

“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin

All Faculty Scholarship

“’Black People’s Money’: The Impact of Law, Economics, and Culture in the Context of Race on Damage Recoveries” is one of a series of articles by the author dealing with black economic marginalization; prior work considered such topics as shopping and selling as forms of deviance, street vending, restraints on leisure, and the importance of informality in loan transactions. This article deals with the linkage between the social significance of black people’s money and its material value. It analyzes the construction of “black money,” its association with cash, and the taboos and cultural practices that assure that black money will …

Carve-Outs In Workers' Compensation: An Analysis Of The Experience In The California Construction Industry, David I. Levine, Frank Neuhauser, Richard Reuben, Jeffrey S. Petersen, Cristian Echeverria

Upjohn Press

Employers and unions in several states during the 1990s were allowed to "carve out" their own workers' compensation systems. These innovative reforms gave the parties the right to collectively bargain their own systems outside the statutory systems. In addition, alternative dispute resolution (ADR) systems were implemented in order speed the legal process and reduce litigation costs. This book offers an evaluation of the first few years' experience with these organizational reforms in California.

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

All Faculty Scholarship

The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

Aggregation, Auctions, And Other Developments In The Selection Of Lead Counsel Under The Pslra, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Teaching Corporate Governance Through Shareholder Litigation, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

The Scope Of Private Securities Litigation: In Search Of Liability Standards For Secondary Defendants, Jill E. Fisch

All Faculty Scholarship

Recent federal court decisions have struggled to apply the Supreme Court's decision in Central Bank v. First Interstate to determine when outside professionals should be held liable as primary violators under section IO(b) of the Securities Exchange Act. In keeping with the Court's current interpretive methodology, Central Bank and its progeny employ a textualist approach. In this Article, Professor Fisch argues that literal textualism is an inappropriate approach for interpreting the federal securities laws generally and misguided in light of legislative developments post-dating the Central Bank decision. Instead, Professor Fisch advocates an approach that weighs Congress 's recent endorsement of …

Agenda: Outdoor Recreation: Promise And Peril In The New West, University Of Colorado Boulder. Natural Resources Law Center, Colorado. Bureau Of Land Management

Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)

Co-sponsored by the Natural Resources Law Center and the Colorado Bureau of Land Management.

The conference will explore several components of the “promise and peril” of the ongoing outdoor recreation explosion. The conference will begin on the morning of June 8 with a series of introductory presentations designed to place the outdoor recreation movement in a useful historical and socioeconomic context. This material will be followed in the afternoon session by a discussion of environmental impacts of outdoor recreation, recognizing that the diversity and magnitude of impacts is as broad as the industry itself. This discussion will be followed on …

Class Action Reform, Qui Tam, And The Role Of The Plaintiff, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Class Action Reform: Lessons From Securities Litigation, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk

All Faculty Scholarship

When plaintiffs cannot predict the outcome of litigation with certainty, neither the American rule (each litigant bears its own litigation expenses) nor the British rule (the losing litigant pays the attorneys' fees of the winning litigant) would induce optimal decisions to bring suit. Plaintiffs may bring frivolous suits when litigation costs are small relative to the amount at stake; plaintiffs may not bring meritorious suits when litigation costs are large relative to this amount. More general fee-shifting rules are based not only on the identity of the winning party but also on how strong the court perceives the case to …

Causes Of Litigation In Workers' Compensation Programs, Evangelos Mariou Falaris, Charles R. Link, Michael E. Staten

Upjohn Press

By applying econometric analyses to case data from two states, Falaris, Link and Staten identify the economic incentives influencing the probability of litigation in workers' compensation cases, and the probability that a contested case is pursued to verdict.

Agenda: Natural Resource Development In Indian Country, University Of Colorado Boulder. Natural Resources Law Center

Natural Resource Development in Indian Country (Summer Conference, June 8-10)

Conference organizers and/or faculty included University of Colorado School of Law professors David H. Getches, Charles F. Wilkinson, Lawrence J. MacDonnell and Richard B. Collins.

Indian reservations constitute about 2.5% of all land in the country and 5% of all land in the American West. During the last two decades, Indian natural resources issues have moved to the forefront as tribal governments have dramatically expanded their regulatory programs, judicial systems. and resource development activities. This major symposium will address current developments and assess likely future directions in the areas of tribal, federal, and state regulation; tribal-state intergovernmental agreements; financing; mineral …