Law Commons^™

Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

A recent study of appellate outcomes reveals that defendants succeed significantly more often than plaintiffs on appeal from civil trials-especially from jury trials.

Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard O. Lempert, Shari Seidman Diamond, Valerie P. Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon M. Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz

Cornell Law Faculty Publications

This brief addresses the issue of jury performance and jury responses to expert testimony. It reviews and summaries a substantial body of research evidence about jury behavior that has been produced over the past quarter century. The great weight of that evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or that they are pro-plaintiff, anti-defendant, and anti-business.

The Petitioners and amici on behalf of petitioners make a number of overlapping, but empirically unsupported, assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluation …

What's Half A Lung Worth? Civil Jurors' Accounts Of Their Award Decision Making, Nicole L. Mott, Valerie P. Hans, Lindsay Simpson

Cornell Law Faculty Publications

Jury awards are often criticized as being arbitrary and excessive. This paper speaks to that controversy, reporting data from interviews with civil jurors' accounts of the strategies that juries use and the factors that they consider in arriving at a collective award. Jurors reported difficulty in deciding on awards, describing it as "the hardest part" of jury service and were surprised the court did not provide more guidance to them. Relatively few jurors entered the jury deliberation room with a specified award figure in mind. Once in the deliberation room, however, they reported discussing a variety of relevant factors such …

A Residual Damages Right Against The Irs: A Cure Worse Than The Disease, Steve R. Johnson

Scholarly Publications

Tax scholarship commonly has emphasized the substantive rules of tax liability, according less than due attention to tax procedure. Recently, however, this imbalance has been partly redressed as a result of the taxpayer rights movement. The major legislative products of the movement have been the Taxpayer Bill of Rights (TBORl) in 1988, the Taxpayer Bill of Rights 2 (TBOR2) in 1996,and the Taxpayer Bill of Rights (TBOR3) in 1998. Congress currently is considering a fourth installment in the series. These measures – especially TBOR3 – have provoked considerable useful commentary from both practitioners and academics.

Nonetheless, much work remains to …

Evaluating Scientific And Forensic Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood offers a critique of the present state of scientific and forensic evidence. In the context of discussing four challenges to the field, the author arms the practitioner with strategies and tactics for making effective use of scientific and forensic testimony.

Justice Delayed?: An Empirical Analysis Of Civil Case Disposition Time, Michael Heise

Cornell Law Faculty Publications

This Article addresses the need to understand better our civil justice system by exploring possible determinants of disposition time for civil cases that reach a jury trial. This study uses one year of civil jury case outcomes from 45 of the nation's 75 most populous counties and identifies locale as one important variable, along with certain case types, results, and characteristics. An empirically moored understanding of the causes of case disposition time will assist public policy and reform efforts that seek to make civil justice speedier and, as a consequence, more inexpensive and just. Findings from this study call into …

Permitting Jury Discussions During Trial: Impact Of The Arizona Reform, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

A field experiment tested the effect of an Arizona civil jury reform that allows jurors to discuss evidence among themselves during the trial. Judges, jurors, attorneys, and litigants completed questionnaires in trials randomly assigned to either a Trial Discussions condition, in which jurors were permitted to discuss the evidence during trial, or a No Discussions condition, in which jurors were prohibited from discussing evidence during trial according to traditional admonitions. Judicial agreement with jury verdicts did not differ between conditions. Permitting jurors to discuss the evidence did affect the degree of certainty that jurors reported about their preferences at the …

Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande

Faculty Publications

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …

Statutory Interpretation, Property Rights, And Boundaries: The Nature And Limits Of Protection In Trademark Dilution, Trade Dress, And Product Configuration Cases, Gary Myers

Faculty Publications

This article, however, takes the view that the basic landscape in trademark law is unlikely to change in the near future. Congress has only recently enacted the Trademark Dilution Act, and there seems to be little movement to amend it dramatically, let alone repeal it. There have been several recently enacted amendments to the Lanham Act addressing functionality that make great sense and are consistent with the principles suggested here, as will be discussed below. Moreover, the Supreme Court in Two Pesos, Qualitex, Park ‘n’ Fly, and Samara has recently set forth rules that will allow trade dress claims to …

The False Claims Act And The English Eradication Of Qui Tam Legislation, J. Randy Beck

Scholarly Works

Congress amended the False Claims Act in 1986 to encourage qui tam enforcement of the statute, which penalizes submission of false claims to the federal government. A qui tam statute authorizes a private citizen "informer" to file suit on behalf of the government for collection of a statutory forfeiture. A successful informer receives a share of the recovery. Qui tam enforcement came from England, where it served for centuries as the principal means of enforcing a wide range of statutes. England moved away from qui tam enforcement in the 1800s and abolished it altogether in 1951. In this Article, Professor …

Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino

Cornell Law Faculty Publications

No abstract provided.

The Timing Of Opinion Formation By Jurors In Civil Cases: An Empirical Examination, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman

Cornell Law Faculty Publications

The question of when and how jurors form opinions about evidence presented at trial has been the focus of seemingly endless speculation. For lawyers, the question is how to capture the attention and approval of the jury at the earliest possible point in the trial. Their goal is to maximize the persuasiveness of their arguments--or at least to minimize the persuasiveness of those of the opposing side. Judges, in contrast, are more concerned about prejudgment. They regularly admonish jurors to suspend judgment until after all the evidence has been presented and after the jurors have been instructed on the law. …

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

UF Law Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …

Civil Justice Delay And Empirical Data: A Response To Professor Heise, Carl W. Tobias

Law Faculty Publications

One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator …

Minnesota Court Of Appeals Hears Oral Argument Via Interactive Teleconferencing Technology, Edward Toussaint

Faculty Scholarship

The Minnesota Court of Appeals is dedicated to providingaffordable access to the appellate process. Access to theappellate process is central to our vision. In order to promote this vision, the Minnesota Court ofAppeals has taken the initiative to implement Interactive VideoTeleconferencing ("IVT"). This essay will discuss the historybehind this decision, the mechanics of its implementation, andthe benefits and challenges of its application to the appellateprocess.

Mock Trial Executive Board, 2000-2001, Kellie Casey Monk

Materials from All Student Organizations

No abstract provided.

Toward More Sophisticated Mediation Theory, John M. Lande

Faculty Publications

In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.

Expert Qualifications: Traps For The Unwary, Paul C. Giannelli

Faculty Publications

No abstract provided.

New Developments In Scientific Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.

Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White

Articles

In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments' entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens' injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments' …

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …

In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard, Marilyn F. Johnson, Karen K. Nelson, Adam C. Pritchard

Articles

This Article presents an empirical study of changes in shareholder wealth resulting from the Ninth Circuit Court of Appeals decision in In re Silicon Graphics Inc. Securities Litigation, which interpreted the pleading provision established in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Congress passed the Reform Act as part of an ongoing effort to protect corporations from abusive suits alleging "fraud by hindsight." In such suits, plaintiffs claimed that a sudden drop in a company's stock price was evidence that the issuer and its management covered up the bad news that led to the price drop. …

Litigators’ Ethics, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …

Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant

Faculty Scholarship

You can tell from remarks by prior speakers that regulatory approvals and liability prevention are of critical importance to progress in biomaterials. Gene therapy trials and the tragic outcomes of some of those trials have raised the specter of government suspension of clinical studies, termination of funding, and potential liability for personal injury under malpractice or products liability doctrines. Regulatory requirements and the terms of research grants and contracts have to be very carefully addressed by organizations testing, developing, making, selling and using biomaterials, biotechnology, and medical devices. However, many regulatory requirements are incomplete, ambiguous and confusing because the agencies …

Civil Challenges To The Use Of Low-Bid Contracts For Indigent Defense, Margaret H. Lemos

Faculty Scholarship

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality's indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging …

Coattail Class Actions: Reflections On Microsoft, Tobacco, And The Mixing Of Public And Private Lawyering In Mass Litigation , Howard M. Erichson

Faculty Scholarship

Ask anyone who follows legal news to name the two biggest litigation news stories in the United States at the start of the twenty-first century, and they will answer without blinking: Microsoft and tobacco. The Microsoft litigation, they will tell you, claims a place in the pantheon of antitrust landmarks that includes Standard Oil, Alcoa, and AT&T. The tobacco litigation is the most massive in a string of mass torts including asbestos, Dalkon Shield, and breast implants; it is arguably the most important public health matter ever litigated. Microsoft and tobacco each fit so well and so interestingly in their …

Fashionable Genetic Explanations In The Courtroom: Litigating Personal Injuries Based On Genetic Risk, Jennifer Wriggins

Faculty Publications

New developments in molecular genetics hold much promise for society. Gene therapy research is underway with the aim of helping to fight, and perhaps even eliminate some diseases. DNA data can be used as evidence to help free innocent people and put guilty ones in jail. Agricultural biotechnology can make crops and pesticides more productive. And cloning may offer exciting potential. There is little doubt that further· developments in the areas of genetics and biotechnology will change our lives in unanticipated ways.

Despite the potential benefits to society, there exist valid and serious I concerns about the potential for misuse …

Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson

Faculty Scholarship

Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of …