Law Commons^™

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

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The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to …

The Calculation Of Prejudgment Interest, Michael S. Knoll, Jeffrey M. Colon

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This Essay describes the proper method of calculating prejudgment interest based on sound financial principles. Using the paradigm that the claim plaintiff holds in litigation represents an involuntary loan from plaintiff to defendant and recognizing that in bankruptcy courts treat legal claims similarly to unsecured debt, we argue that prejudgment interest should be computed using the defendant's unsecured borrowing rate. Furthermore, we argue that courts should use a short-term, floating interest rate rather than a long-term rate in order to provide the proper incentive for the parties to settle. We criticize alternative bases for awarding prejudgment interest and address modifications …

Running In Place: The Paradox Of Expanding Rights And Restricted Remedies, David Rudovsky

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No abstract provided.

Preclusion In Class Action Litigation, Tobias Barrington Wolff

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"Despite the intense focus that courts and commentators have trained upon class litigation for the last twenty-five years, a central feature of the class-action lawsuit has received no sustained attention: the preclusive effect that a judgment in a class action should have upon the other, non-class claims of absentees. The omission is a serious one. If claim and issue preclusion were to operate in their normal mode when a claim is certified for class treatment, absentees would sometimes face a serious threat of having their high-value individual claims compromised. Such a threat, in turn, can create ex ante conflicts of …

Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker

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Leaving aside difficult to interpret doctrinal developments, such as the abrogation of traditional immunities, liability insurance has at least the following six impacts on tort law in action. First, for claims against all but the wealthiest individuals and organizations, liability insurance is a de facto element of tort liability. Second, liability insurance limits are a de facto cap on tort damages. Third, tort claims are shaped to match the available liability insurance, with the result that liability insurance policy exclusions become de facto limits on tort liability. Fourth, liability insurance makes lawsuits against ordinary individuals and small organizations into repeat …

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard

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When Congress enacted the Private Securities Litigation Reform Act in 1995 (“PSLRA”), the Act’s “lead plaintiff” provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel’s compensation.

Congress’s stated purpose in enacting the lead plaintiff provision was to encourage institutional investors—pension funds, mutual …

The Fda And The Tort System: Postmarketing Surveillance, Compensation, And The Role Of Litigation, Catherine T. Struve

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The dispute over FDA regulatory preemption is familiar: Preemption advocates assert that products liability suits stifle innovation, and proponents of tort liability counter that the FDA fails adequately to protect the public and that persons injured by defective products deserve compensation. The FDA's premarket approval process cannot detect all potential safety problems with a new drug; postmarketing surveillance is essential, and the FDA's efforts in that regard fall short. Advocates of preemption will find it difficult to establish that FDA regulation should entirely displace the tort system. This article examines whether a case could be made for an intermediate approach …