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Full-Text Articles in Law
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
Anthony O'Rourke
Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …
The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang
The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang
Sean Farhang
This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show 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 private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
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 …
Global Law And The Environment, Robert V. Percival
Global Law And The Environment, Robert V. Percival
Robert Percival
This article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important …
Judicial Expenditures And Litigation Access: Evidence From Auto Injuries, Paul Heaton, Eric Helland
Judicial Expenditures And Litigation Access: Evidence From Auto Injuries, Paul Heaton, Eric Helland
Paul Heaton
Despite claims of a judicial funding crisis, there exists little direct evidence linking judicial budgets to court utilization. Using data on thousands of auto injuries covering a 15-year period, we measure the relationship between state-level court expenditures and the propensity of injured parties to pursue litigation. Controlling for state and plaintiff characteristics and accounting for the potential endogeneity of expenditures, we show that expenditures increase litigation access, with our preferred estimates indicating that a 10% budget increase increases litigation rates by 3%. Consistent with litigation models in which high litigation costs undermine the threat posture of plaintiffs, increases in court …
Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit
Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit
Nancy Levit
One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …
Fee-Shifting Rules In Litigation With Contingency Fees, Kong-Pin Chen
Fee-Shifting Rules In Litigation With Contingency Fees, Kong-Pin Chen
Kong-Pin Chen
This article theoretically compares the British and American fee-shifting rules in their influences on the behavior of the litigants and the outcomes of litigation. We build up a comprehensive litigation model with asymmetric information and agency costs, which makes it possible to make comparison on a broad arrays of issues in a single unified framework. We then solve for the equilibria under both American and British rules, and thereby compare their equilibrium settlement amounts and rates, expenditures incurred in trials, as well as the plaintiff’s chances of winning and incentive to sue. The theoretical results are broadly consistent with existing …