Law Commons^™

The Litigation Budget, Jay Tidmarsh

Jay Tidmarsh

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require …

Superiority As Unity, Jay Tidmarsh

Jay Tidmarsh

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve …

The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach

All Faculty Scholarship

In this paper I introduce what I call the reduced form approach to studying the plaintiff's win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff's and defendant's beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties' subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties' beliefs. I show how models with very different-looking …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Golden Ratio Of Corporate Deal-Making, Christina M. Sautter

Journal Articles

The article discusses the Delaware Supreme Court's decision in the case 'Revlon, Inc. v. MacAndrews & Forbes Holdings Inc.' in which the court sale of corporate control, the target's board of directors has a duty to maximize stockholder value. Topics discussed include relationship between the deal protection devices and sale process; golden ratio of corporate deal-making; and the court's definition of an ideal merger and acquisition of a sale process.

The Function Of The International Court Of Justice In The World Community, Ernest A. Gross

Georgia Journal of International & Comparative Law

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Qualified Immunity When Facts Are In Dispute, Leon Friedman

Touro Law Review

No abstract provided.

Section 1983 Custom Claims And The Code Of Silence, Myriam Gilles

Touro Law Review

No abstract provided.

Problems Concerning Litigating Custom And Practice Cases, Steve Ryals

Touro Law Review

No abstract provided.

Eleventh Amendment Federalism And State Sovereign Immunity Cases: Direct Effect On Section 1983?, Stephen H. Steinglass

Touro Law Review

No abstract provided.

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

Scholarly Works

The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural …

District Court: Cambridge Univ. Pr. Et Al. V. Becker Et Al.: Ruling On Remand (2016), Orinda Evans

Georgia State University Copyright Lawsuit

No abstract provided.

Judging Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about …

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …

Procedure And Pragmatism, Stephen B. Burbank

All Faculty Scholarship

In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo’s …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

Judge Rodney Gilstrap has a lot of patent cases on his docket. In fact, in 2015 there were 1,686 patent cases that were filed and assigned to Judge Gilstrap, an astronomical number for a single judge. Judge Gilstrap — one of eight federal judges who sit on the Eastern District of Texas — is so popular with patent plaintiffs that over one-fourth of all patent cases in the country are heard by him. This Article addresses the problems with allowing this judge shopping to occur. It reviews the scholarship on the topic that is almost universally opposed to judge shopping …

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

All Faculty Scholarship

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard …

Panel 2: Types Of Litigation Funding, Geoffrey P. Miller, Maya Steinitz, Joshua Schwadron, Bradley Wendel, Michael Faure, Jef De Mot, Travis Lenkner

Faculty Scholarship

This is a transcript from the second panel of the 2015 NYU School of Law conference: Litigation Funding: The Basics and Beyond.

Panel Two

The second panel will build on the basics. Participants will explain and discuss different subcategories of funding, each of which may raise different conceptual, practical and/or regulatory concerns.

Panelists:

• Geoffrey Miller, New York University School of Law (Moderator)
• Maya Steinitz, University of Iowa College of Law
• Joshua Schwadron, Founder and CEO, Mighty
• Bradley Wendel, Cornell Law School
• Michael G. Faure, Maastricht University & Rotterdam University, the Netherlands
• Jef De Mot, Ghent University
• Travis Lenkner, Gerchen Keller …

Lawyers, Power, And Strategic Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It's not just their ease with the language and the process that sets them apart. They dominate the space.

This empirical study analyzes the experience …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

J. Jonas Anderson