Law Commons^™

Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

Xenophilia Or Xenophobia In American Courts? Before And After 9/11, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners' aversion to U.S. forums can elevate the foreigners' success rates, when measured as a percentage of …

National Interests, Foreign Injuries, And Federal Forum Non Conveniens, Elizabeth Lear

Elizabeth T Lear

This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in …

Congress, The Federal Courts, And Forum Non Conveniens: Friction On The Frontier Of The Inherent Power, Elizabeth T. Lear

Elizabeth T Lear

The federal forum non conveniens regime has many flaws; its most serious, however, is its lack of constitutional support. Founded upon the inherent authority of Article III, the forum non conveniens doctrine is an outlier, residing in the area over which Congress retains plenary control. The Court has long treated the forum non conveniens dismissal power as the norm against which Congress legislates. This Article argues that the time has come to reconsider this interpretive approach. In the case of peripheral inherent power rules like forum non conveniens, the prevailing presumption should be reversed. The Court, rather than Congress, should …

Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu

Jonathan Yu

No abstract provided.

Auctioning Class Settlements, Jay Tidmarsh

Jay Tidmarsh

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Halliburton, Basic And Fraud On The Market: The Need For A New Paradigm, Charles W. Murdock

Charles W. Murdock

Summary: Halliburton, Basic and Fraud on the Market: The Need for a New Paradigm

If defrauded securities plaintiffs cannot bring a class-action lawsuit, there often will be no effective remedy since the amount at stake for individual plaintiffs is not sufficient to warrant the substantial costs of litigation. To surmount the problem of individualized reliance and establish commonality, federal courts for twenty-five years have been employing the Basic fraud-on-the-market theory which posits that, in an efficient market, investors rely on the integrity of the market price.

While class certification at one time was a matter of course, today it is …

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller

Benjamin Miller

Abstract In F.T.C. v. Actavis, Inc. the Supreme Court resolved a circuit split regarding the proper evaluation of reverse payment settlements under federal antitrust law, holding that they must be evaluated under a rule of reason analysis. However, the Court simultaneously created significant uncertainty by declaring that the lower courts were responsible for structuring the analysis. While a few cases are currently in the pre-trial phase, the only decisions relating to reverse payments since Actavis have been rulings on pre-trial motions—there have been no decisions on the merits. Given the intricate intersection between antitrust and intellectual property principles in these …

Cy Pres And The Optimal Class Action, Jay Tidmarsh

Jay Tidmarsh

Prepared for a symposium on class actions, this Article examines the problem of cy pres relief in class actions through the lens of optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and that it may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: setting attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the net …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

Chinese Courts' Role In Financial Reform: On The First "Vam Agreement" Case In China, Siyi Huang

Siyi Huang

Traditional belief is that courts in authoritarian regimes are only passive institutions and their authority and influence are extremely limited. Despite the conventional wisdom, it’s been noticed that Chinese courts have played a crucial role in China’s financial reform. Drawing on insights from the judgments of three Chinese courts at different levels on the first “value adjustment mechanism” case in China, this article attempts to explore the functional techniques and decision-making process of Chinese courts. The analysis of the court’ judgments suggests that Chinese courts have performed a policy-making function in deciding controversial economic cases, by transcending social and business …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was one means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.

After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: …

Jurors And Social Media: Is A Fair Trial Still Possible?, Nancy Marder

Nancy S. Marder

No abstract provided.

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Richard Kay

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect—that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

The Puzzling Appeal Of Summary Judgment Denials: When Are Such Denials Reviewable?, Joan Steinman

Joan E. Steinman

No abstract provided.

Jurors And Juries, Nancy Marder

Nancy S. Marder

No abstract provided.

Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John A. Powell, Ofurhe Arnica Igbinedion, Samir Gambhir, Eli Moore

john a. powell

The briefs of other parties in the litigation emphasized inclusionary zoning’s goal of increasing the supply of affordable housing. This brief focuses on inclusionary zoning’s goal of promoting social inclusion and integration by locating affordable housing in the right location. The brief explains how economic and racial segregation deny equality of opportunity to low and moderate income families because segregation limits their potential for economic and social mobility by restricting access to the primary means of mobility, e.g. employment and education. Drawing from a wide array of empirical and other studies the brief demonstrates how inclusionary zoning is an effective …

Removal And Remand - Beyond The Supplements, Joan E. Steinman

Joan E. Steinman

This is a compilation of case descriptions and citations to law review articles that complements the contents of the 2014 Pocket Parts to volumes 14B and C of the Wright & Miller treatise on Federal Practice and Procedure. It was put together by the author of those Pocket Parts. The cases described here either are not included at all in the 2014 volume 14B and C Pocket Parts or are cited there for different propositions than are reflected in this electronic publication. The cases that are included in this electronic compilation came to my attention between mid-October, 2012, and mid-October, …

Defining “Family” For Zoning: Contemporary Policy Challenges, Legal Limits And Options, Tim Iglesias

Tim Iglesias

Single family zones are ubiquitous, diversely-defined and both popular and controversial. Much of the controversy stems from who is excluded from living in these zones by the definition of “family.” After reviewing single family zones, policy rationales for them, and the basic types of definitions of family, this article surveys contemporary policy challenges and legal limits to definitions of “family.” Recognizing localities’ diverse contexts, the article articulates how localities can reassess their definitions and identifies relevant considerations.

The Practice And Theory Of Lawyer Disqualification, Keith Swisher

Keith Swisher

Lawyer disqualification is commonly feared — as a “strategic,” “tactical,” and “harassing” “potent weapon” depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear. This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification: (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad; (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification …

Homage To Filártiga, Perry S. Bechky

Perry S. Bechky

The Supreme Court’s new decision in Kiobel severely restricted human rights litigation under the Alien Tort Statute (ATS). In doing so, the Court gravely injured the canonical human rights case of Filártiga. This essay celebrates Filártiga, demonstrating that it survives Kiobel in four key respects: its approach to the sources of international law, its conclusion that international law prohibits torture, its dynamic vision of the way the human rights revolution transformed international law, and its hope that courts can help make real a world without torture. The essay presents Filártiga as a living presence and a beacon for future development …

Party Subordinance In Federal Litigation, Scott Dodson

Scott Dodson

American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my …

High Courts And Election Law Reform In The United States And India, Manoj Mate

Manoj S. Mate