Law Commons^™

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Faculty Publications

The issue of discovery misconduct, specifically as it pertains to the prelitigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Banc of America Securities LLC, Judge Shira A. Scheindlin-of the Zubulake v. UBS Warburg LLC2 e-discovery casespenned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Faculty Publications

Culturally based litigation practices are central to the policies of federal courts. Unlike the Federal Rules of Civil Procedure, cultural based practices are neither uniform nor explicitly defined among the federal courts. These practices are specifically tailored to ensure judicial efficiency, and in turn, they heavily influence practice and procedure in federal courts. This Article examines the significance of cultural litigation practices and their influence on amending or establishing new Federal Rules of Civil Procedure. The author proposes that rulemaking must compliment cultural practices in order to be successful and concludes that when conflict exists between these practices and rulemaking, …

The Griswold 9 And Student Activism For Faculty Diversity At Harvard Law School In The Early 1990s, Philip Lee

Faculty Publications

This article reconstructs a mostly forgotten moment in Harvard Law School history when the students organized in the early 1990s across race, gender, sexual orientation, and ability and disability lines to push for faculty diversity. The new student coalition, called the Coalition for Civil Rights, gave the students’ activism unusual momentum. This initiative included the first time that law students, acting pro se, sued their law school for discrimination in faculty hiring and the first time Harvard Law School students were publically tried by their school’s Administrative Board for conducting an overnight sit-in at the Dean’s office (i.e., the Griswold …

Forum Non Conveniens And Enforcement Of Foreign Judgments, Christopher A. Whytock, Cassandra Burke Robertson

Faculty Publications

When citizens of Ecuador sued Texaco, Inc. in a U.S. court seeking damages for oil contamination in the Amazon, Texaco successfully moved to dismiss the suit in favor of Ecuador based on the forum non conveniens doctrine, arguing – as that doctrine requires – that Ecuador was an adequate alternative forum and more appropriate than the United States for hearing the suit. The plaintiffs then refiled the suit in Ecuador, and a court there entered a multi-billion dollar judgment against Chevron Corporation, which had merged with Texaco. Chevron now argues that the Ecuadorian legal system suffers from deficiencies that should …

The Need For Non-Discretionary Interlocutory Appellate Review In Multidistrict Litigation, Andrew S. Pollis

Faculty Publications

Multidistrict Litigation (MDL) is a tool for managing complex litigation by transferring cases with common questions of fact to a single judge for coordinated pretrial proceedings. The subject matter of the cases can run the gamut from airplane crashes to securities fraud to environmental disasters, such as the recent BP oil spill in the Gulf of Mexico. Today, about a third of all pending civil cases in federal court are part of the MDL system. A single judge renders all the important legal decisions in each MDL, exerting outsized impact on the parties and on the evolution of the law …

The Impact Of Third-Party Financing On Transnational Litigation, Cassandra Burke Robertson

Faculty Publications

Third-party litigation finance is a growing industry. The practice, also termed “litigation lending,” allows funders with no other connection to the lawsuit to invest in a plaintiff’s claim in exchange for a share of the ultimate recovery. Most funding agreements have focused on domestic litigation in Australia, the United Kingdom, and the United States. However, the industry is poised for growth worldwide, and the recent environmental lawsuit brought by Ecuadorian plaintiffs against Chevron demonstrates that litigation funding is also beginning to play a role in transnational litigation.

This article, prepared for a symposium on “International Law in Crisis,” speculates about …

Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo

Faculty Publications

Plaintiffs commonly bring two distinct types of claims under Section 1(b) of the Securities Exchange Act of 1934: 1) claims of material misrepresentations or omissions; and 2) claims of trade-based market manipulation. Despite the distinctive features of the two types of claims, courts have tended to treat them identically when applying the “fraud on the market” doctrine. In particular, courts have required both types of plaintiffs to make identical showings that the relevant security traded in an “efficient market” in order to gain a presumption of reliance. The reasons for requiring such a showing by plaintiffs in a misrepresentation case …

Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande

Faculty Publications

Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …