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Full-Text Articles in Law
Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll
Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll
Book Chapters
According to a familiar story about class actions in the United States, aggregation promotes access to counsel by increasing the amount of money from which counsel fees can be taken. Courts usually award class counsel a percentage of the monetary recovery obtained on behalf of the class, and class treatment can turn a $30 case into a $3 million case. But what about class actions that do not involve monetary relief at all? Some civil rights plaintiffs seek to stop a violation, rather than to obtain compensation for past harm, and therefore choose to pursue only an injunction or declaratory …
Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao
Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao
Michigan Technology Law Review
Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages …
Piling On? An Empirical Study Of Parallel Derivative Suits, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard
Piling On? An Empirical Study Of Parallel Derivative Suits, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard
Articles
Using a sample of all companies named as defendants in securities class actions between July 1, 2005 and December 31, 2008, we study parallel suits relying on state corporate law arising out of the same allegations as the securities class actions. We test several ways that parallel suits may add value to a securities class action. Most parallel suits target cases involving obvious indicia of wrongdoing. Moreover, we find that although a modest percentage of parallel suits are filed first, over 80 percent are filed after a securities class action (termed “follow-on” parallel suits). We find that parallel suits and, …
Making A Buck While Making A Difference, Alphonse A. Gerhardstein
Making A Buck While Making A Difference, Alphonse A. Gerhardstein
Michigan Journal of Race and Law
It is not right for children to die before their parents. It is not right for peaceful, unarmed citizens to die at the hands of the police. In my civil rights practice, I have met many mothers, fathers, and family members who are struggling to recover after a law enforcement officer caused the death of their loved one. Sure, they want fair compensation. But money does little to reduce their loss or make the grief more bearable. They often want to do something that will ensure that their loved one did not die in vain. They want to prevent other …
Class Action Myopia, Maureen Carroll
Class Action Myopia, Maureen Carroll
Articles
Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …
Copyright And The Vagueness Doctrine, Bradley E. Abruzzi
Copyright And The Vagueness Doctrine, Bradley E. Abruzzi
University of Michigan Journal of Law Reform
The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by …
Requiem For Section 1983, Paul D. Reingold
Requiem For Section 1983, Paul D. Reingold
Articles
Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …
Second Best Damage Action Deterrence, Margo Schlanger
Second Best Damage Action Deterrence, Margo Schlanger
Articles
Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …
The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen
The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen
Michigan Law Review
Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …
Should Congress Repeal Securities Class Action Reform?, Adam C. Pritchard
Should Congress Repeal Securities Class Action Reform?, Adam C. Pritchard
Other Publications
The Private Securities Litigation Reform Act of 1995 was designed to curtail class action lawsuits by the plaintiffs’ bar. In particular, the high-technology industry, accountants, and investment bankers thought that they had been unjustly victimized by class action lawsuits based on little more than declines in a company’s stock price. Prior to 1995, the plaintiffs’ bar had free rein to use the discovery process to troll for evidence to support its claims. Moreover, the high costs of litigation were a powerful weapon with which to coerce companies to settle claims. The plaintiffs’ bar and its allies in Congress have called …
A Taxing Settlement, Hanoch Dagan, James J. White
A Taxing Settlement, Hanoch Dagan, James J. White
Articles
The following essay is based on the talk "Government, Citizens, and Injurious Industries: A Case Study of the Tobacco Litigation," delivered by Hanoch Dagan last May to the Detroit Chapter of the International Association of Jewish Lawyers and Jurists, and on the article "Governments, Citizens, and Injurious Industries," by Dagan and James J. White, '62, which appeared in 75.2 New York University Law Review 254-428 (May 2000). The authors hold conflicting view on the underlying issue of this topic: tobacco company product liability. Professor Dagan holds the position that tobacco companies are liable for harm done by their products; Professor …
Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White
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
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 …
Markets As Monitors: A Proposal To Replace Class Actions With Exchanges As Securities Fraud Enforcers, Adam C. Pritchard
Markets As Monitors: A Proposal To Replace Class Actions With Exchanges As Securities Fraud Enforcers, Adam C. Pritchard
Articles
Fraud in the securities markets has been a focus of legislative reform in recent years. Corporations-especially those in the high-technology industry-have complained that they are being unfairly targeted by plaintiffs' lawyers in class action securities fraud lawsuits. The corporations' complaints led to the Private Securities Litigation Reform Act of 1995 ("Reform Act"). The Reform Act attempted to reduce meritless litigation against corporate issuers by erecting a series of procedural barriers to the filing of securities class actions. Plaintiffs' attorneys warned that the Reform Act and the resulting decrease in securities class actions would leave corporate fraud unchecked and deprive defrauded …
Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud
Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud
Articles
If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …
"Countering Stereotypes." Review Of Medical Malpractice And The American Jury: Confronting The Myths About Jury Incompetence, Deep Pockets, And Outrageous Damage Awards, By N. Vidmar, Samuel R. Gross
Reviews
The story of The Medical Malpractice Trial has a place in popular American legal culture, somewhere on the shelf with Killers Who Got Off on Technicalities. The plot is simple and tragic. The protagonist is the Doctor, a good man with a flaw: He tries too hard. In the process, he makes an innocent mistake or believes he can prevent the unpreventable. In any event, he fails and the Patient dies or is permanently injured. For this unintentional error the Doctor is crucified, by the vengeful anger of the Patient or her survivors, the avarice of the plaintiffs' lawyer, the …
Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud
Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud
Articles
When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.
Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud
Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud
Articles
If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …
Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review
Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review
Michigan Law Review
This Note explores the possible interpretations of the "cost of suit" provision and the policies which it implicates. It concludes that the Copper Liquor interpretation best advances the goals of the antitrust laws set forth by Congress and the courts. Part I examines the development of the present controversy among the circuits. Part II analyzes and refutes the arguments which have been set forth in support of the traditional rule. Part III explores the policy considerations which underlie private treble damage actions and concludes that the Copper Liquor interpretation of the "cost of suit" provision serves them better than does …
Controlling Jury Damage Awards In Private Antitrust Suits, Michigan Law Review
Controlling Jury Damage Awards In Private Antitrust Suits, Michigan Law Review
Michigan Law Review
This Note takes the position that the courts should better control jury manipulation in private antitrust actions. Part One suggests that manipulation is likely in such actions, and argues that this manipulation off ends the legislative judgment reflected in the trebling provision without leading to more equitable results. Part Two presents two complementary proposals to control jury manipulation of treble damage awards. These proposals aim to induce the jury to return accurate awards based on the economic loss actually suffered by the plaintiff.
Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review
Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review
Michigan Law Review
This Note argues that in the absence of any clear indication that the legislature intended to bar such suits, courts should uphold private actions whenever plaintiffs can establish the elements of a common-law tort. Part I briefly outlines the various theories supporting the view that public sector collective bargaining statutes preempt private actions. The analysis is necessarily general, but Part I concludes that in most cases neither the language and structure of the applicable statute nor an analogy to federal labor law will resolve the preemption question. Part II, therefore, looks to the policies that animate no-strike provisions and argues …
Lawsuit, Michigan Law Review
Lawsuit, Michigan Law Review
Michigan Law Review
A Review of Lawsuit by Stuart M. Speiser
Foreign Nation Suits For Treble Damages Under The Clayton Act After Pfizer V. Government Of India, Marianne P. Gaertner
Foreign Nation Suits For Treble Damages Under The Clayton Act After Pfizer V. Government Of India, Marianne P. Gaertner
University of Michigan Journal of Law Reform
After summarizing the rationale behind Pfizer, this article will trace the ramifications of the decision on American foreign, economic, and antitrust policies. Second, a suggestion for a foreign sovereign antitrust bill will then be offered. Finally, an examination of present congressional proposals will show that these proposals fail to address fully the political and economic consequences of Pfizer.
Punitive Surcharges Against Disloyal Fiduciaries--Is Rothko Right?, Richard V. Wellman
Punitive Surcharges Against Disloyal Fiduciaries--Is Rothko Right?, Richard V. Wellman
Michigan Law Review
This Article criticizes the award of a penalty surcharge in the name of appreciation damages. Contrary to the statements in the Rothko opinions, neither precedent nor treatises offers clear support for the shocking awards made against Rothko's disloyal executors. Furthermore, even if appreciation damages were to be viewed, against the thesis here advanced, as an appropriate remedy for some kinds of fiduciary breach, the measure is inappropriate for cases which, like Rothko, involve hidden conflicts of interest. This is so because the threat of severe penalties in hidden-conflict cases adds unacceptable legal costs to honest administrations-costs that cannot be …
Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review
Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review
Michigan Law Review
This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.
Negligence-Immunity Of Charitable Institutions From Suit, W. Garrett Flickinger S.Ed.
Negligence-Immunity Of Charitable Institutions From Suit, W. Garrett Flickinger S.Ed.
Michigan Law Review
A patient of defendant charitable hospital died as a result of the transfusion of an incorrect blood type and it was shown that one of defendant's employees had correctly typed the blood but negligently mislabeled it. The widower and children of the deceased brought an action in negligence for damages and the circuit court allowed recovery. On appeal, held, affirmed. The defendant hospital is liable in damages for the death of the deceased caused by the negligence of its employee notwithstanding the fact that defendant is a charitable institution and that the hospital authorities exercised due care and caution …
Corporations-Shareholders' Derivative Suits-When Demand On Shareholders Is A Prerequisite To Maintenance Of Suit, Thomas L. Waterbury S.Ed.
Corporations-Shareholders' Derivative Suits-When Demand On Shareholders Is A Prerequisite To Maintenance Of Suit, Thomas L. Waterbury S.Ed.
Michigan Law Review
A shareholder's derivative suit is an equity proceeding instituted by a shareholder on behalf of himself and all other shareholders to assert corporate rights. Both the corporation and the parties allegedly liable to the corporation are necessary parties. The question to be considered in this comment is, when must the plaintiff shareholder show that he sought redress for the corporation through collective action of the shareholders and failed to secure it? As a preliminary matter, we may ask what sort of collective action the shareholders are expected to take. A few authorities suggest that the shareholders, as a body, bring …
Municipal Tort Liability, Allan F. Smith
Municipal Tort Liability, Allan F. Smith
Michigan Law Review
Municipal government in the United States is big business. In 1946, the 397 cities having a population of 25,000 or more spent a total of nearly 3 billion dollars for general governmental expenditures. In 1947 the total increased by 17 per cent to $3,477,000,000. Of that amount, 2½ billion were actual operational expenses for such activities as public safety, public health, sanitation, hospitals, local street and highway maintenance, and schools. Since the figures do not include the amounts expended in connection with municipal water works or municipal street railways, they lend weight to the assertion that our municipal governments are …
Nuisance-Liability For Injury Caused By Encroaching Tree Roots, L. B. Lea
Nuisance-Liability For Injury Caused By Encroaching Tree Roots, L. B. Lea
Michigan Law Review
Plaintiff and defendant were ad joining landowners. Roots of poplar trees on defendant's land extended onto plaintiff's premises, clogging the sewage system and extracting such nutritional value from the land as to injure her lawn and flower garden. Plaintiff brought an action for damages and equitable relief. Judgment was rendered for defendant on demurrer. On appeal, held, reversed. The encroaching roots constituted an actionable nuisance. Plaintiff was not limited to the self-help remedy of cutting the roots at the boundary line. Mead v. Vincent, (Okla. 1947) 187 P. (2d) 994.
Federal Courts - Rules Of Federal Procedure - Production Of Designated Documents And Things Under Rule 34, William C. Wetherbee Jr.
Federal Courts - Rules Of Federal Procedure - Production Of Designated Documents And Things Under Rule 34, William C. Wetherbee Jr.
Michigan Law Review
Plaintiff sued for damages and loss of profits caused by the unlawful acts of the defendant beginning in January, 1937. Under rule 34 of the new federal rules the defendant moved that the court order the plaintiff to produce its books showing the company's commercial results for the period prior to January 1, 1936; its duplicate federal income tax returns for the years 1934 to 1938; and all copies of statements furnished to any bank or credit company over a period of some five years. Held, motion granted in regard to books of account and duplicate income tax returns …