Law Commons^™

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Cornell Law Faculty Publications

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should …

How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz

Faculty Scholarship

This article poses the question: How should parties to litigation finance agreements – third party funding or contingency fees – deal with the inherent difficulty in pricing legal claims? It answers that a practical solution would be to use staged funding. Staged funding side-step the impossibility of accurately pricing litigation ex ante by allowing re-pricing and exit that are pegged to information disclosure. Done right, staging allows all parties to minimize the effects of uncertainty, better price their bargain, optimize the distribution of the proceeds of litigation between its different investors – far beyond practices common today. Staged funding also …

An Implausible Standard For Affirmative Defenses, Stephen Mayer

Michigan Law Review

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading …

Screening Legal Claims Based On Third-Party Litigation Finance Agreements And Other Signals Of Quality, Michael Abramowicz, Omer Alper

Vanderbilt Law Review

The advent of third-party litigation finance introduces a new gatekeeper to the legal process. Before deciding to lend money to a plaintiff, a litigation finance company will conduct at least some review and make an assessment of the quality of the case.' Since litigation finance loans are generally nonrecourse, a litigation finance company is likely to refuse to loan money to plaintiffs with the weakest cases. Such voluntary claim screening may improve social welfare by reducing the incidence of frivolous claims. But the volume of frivolous claims may still be higher than it would be in a world without third-party …

An Argument Against Open-File Discovery In Criminal Cases, Brian P. Fox

Notre Dame Law Review

This Note argues that, for the most part, open-file discovery proponents fail to recognize the added burden that defense counsel would face under a regime in which all items of the prosecution’s evidence are available for investigation by the defense. This is particularly true in the eighty to ninety percent of criminal cases where the defendant is indigent, and the court appointed defense counsel is operating under strict resource constraints.

This Note also argues that advocates of open-file discovery fail to recognize that in the majority of cases involving prosecutorial misconduct, the prosecutor’s intentional wrongdoing will be sufficient to overshadow …

The Corporate Antitrust Audit - Establishing A Document Retention Program, Sheldon S. Toll, Joseph P. Bauer

Joseph P. Bauer

No abstract provided.

New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Matthew J. Barrett

Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued final regulations …

Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Matthew J. Barrett

In late 1975, the accounting and legal professions reached an accord that led to three new professional standards: (1) a new financial accounting rule for contingencies, (2) an auditing standard addressing the requirement that an auditor obtain evidence about an audit client's contingent liabilities to determine whether the client has properly treated those items in its financial statements, and (3) the American Bar Association's Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information under that auditing standard. The Commentary that accompanied the Statement of Policy explicitly stated that the organized bar's expectation that communications between lawyers and auditors …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Resource Movement And The Legal System, Herbert J. Hovenkamp

All Faculty Scholarship

In "The Problem of Social Cost" Ronald Coase considered several common law disputes among neighbors whose economic activities conflicted with one another. For example, Sturges v. Bridgman was a nineteenth century nuisance case involving a pediatrician whose practice was hindered by his neighbor, a confectioner whose operation required a noisy mechanical mortar & pestle. Coase showed that if high transaction costs did not interfere, private bargaining would provide a solution which he characterized as efficient -- namely, that the right to continue would be given to the person who valued it most. For example, if the pediatrician valued the right …

Sealing Records, Curtis E.A. Karnow

Curtis E.A. Karnow

Practical tips on sealing records in California state courts

Joe M Stell Ombudsman Program - Taos Settlement Technical Work, Peggy Barroll

Publications

No abstract provided.

On Monday's Argument In Al-Bahlul, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Supplementing The Record In The Federal Courts Of Appeals: What If The Evidence You Need Is Not In The Record?, George C. Harris, Xiang Li

The Journal of Appellate Practice and Process

No abstract provided.

Injunctive And Reverse Settlements In Competition-Blocking Litigation, Keith N. Hylton, Sungjoon Cho

Faculty Scholarship

We distinguish standard settlements, in which the status quo is preserved, and injunctive settlements, which prohibit the defendant's activity. The reverse (payment) settlement is a special type of injunctive settlement. We examine the divergence between private and social incentives to settle and policies that would minimize socially undesirable injunctive and reverse settlements (e.g., banning reverse settlements). The results are applied to competition-blocking litigation, such as patent infringement and antidumping.

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”

This article is an effort to help courts and …

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

All Faculty Scholarship

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

Schultz V. Akzo Nobel Paints: “The Rest Of The Story” Reveals Limited Impact Of Expert Testimony Decision, Richard O. Faulk

Richard Faulk

Certainly, a number of lawyers from both sides of the bar believe that the Schultz decision is important. A review of the record in Schultz, however, reveals a relatively easy explanation for the decision—one that undermines its value as precedent. To understand why this is so, we must go back to the district court’s decision to grant Akzo Nobel’s motion for summary judgment and, with apologies to Paul Harvey, appreciate the “rest of the story.”

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

• Oil and Gas Leases
• Surface Use Agreements (SUAs)
• Government’s Role in Authorizing Locations for Oil and Gas Development
• Technical Aspects of Nontributary and Produced Nontributary Ground Water
• Produced Nontributary Ground …

Risk Regulation In Perspective: Reserve Mining Revisited, Daniel A. Farber

Daniel A Farber

The Reserve Mining v. EPA case involved the disposal of iron ore mine tailings containing asbestos in Lake Superior over an extended period. The case litigation is described, and the decision forcing the Reserve Mining Co to spend over $200 million to eliminate asbestos from the drinking water of Duluth, MN, is assessed in light of uncertain risk assessment. It is concluded that the court decision was the prudent one on the basis of both cost/benefit and feasibility analysis. Cost/benefit analysis focuses on the possible number of lives saved vs. the total cost of control, while feasibility analysis stresses factors …

Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman

U.S. Supreme Court Briefs

These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented …

Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor

Michael A. Zuckerman

No abstract provided.

The Shortest Distance: Direct Filing And Choice Of Law In Multidistrict Litigation, Andrew D. Bradt

Andrew D. Bradt

The amount of multidistrict litigation (MDL) in the federal courts is skyrocketing, particularly in the areas of mass torts and products liability. One significant reason for the explosion of MDL has been the difficulty of maintaining nationwide or multistate class actions in these areas, due in large part to the choice-of-law problems created by operation of many different states' laws to plaintiffs' claims. One comparative benefit of MDL is that individual cases within the consolidated pretrial proceedings retain their "choice-of-law identity" -- that is, that transfer of a case into a pending MDL does not change the choice-of-law rules that …

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

“Inocuidad De La Excepción De Convenio Arbitral Frente Al Proceso Judicial Derivado De Una Acción De Control De La Contraloría General De La República”., Jancarlos Jair Vega Lugo Jancarlos Vega

Jancarlos Jair Vega Lugo

No abstract provided.

Groundwater Challenges In Spain: Lessons From The Western Mancha Aquifer, Pedro Martinez-Santos

Publications

No abstract provided.

Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman

Nevada Law Journal

No abstract provided.

A Market For Tax Compliance, Walter E. Afield Iii

Walter E Afield III

It is becoming increasingly clear that, due to political realities and budgetary constraints, the IRS is going to have to attempt to enforce the tax laws by doing more with less. Current enforcement efforts have yielded a tax gap (i.e., the difference between the amount of taxes that should be paid and the amount that are collected) of roughly $450 billion annually. Faced with this task, one of the steps that the IRS has recently taken is to try to improve the quality in services performed by paid tax preparers, a group that historically has been subject to little IRS …