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Full-Text Articles in Law

When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr May 2020

When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr

Michigan Technology Law Review

If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon …


The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch Oct 2016

The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch

Michigan Journal of Environmental & Administrative Law

On April 20, 2010, the oil rig Deepwater Horizon exploded in the Gulf of Mexico, killing eleven people and injuring seventeen more. Efforts to stop the spill failed. For the next eighty-seven days, hundreds of millions of barrels of oil poured into the Gulf. This catastrophe not only changed the lives of the families of the dead and injured and the communities who experienced the economic and social disruption of the spill – it challenged the survival of the ecosystem of the ninth largest water body in the world. The oil spill extended fifty miles offshore from Louisiana in the …


Making A Buck While Making A Difference, Alphonse A. Gerhardstein May 2016

Making A Buck While Making A Difference, Alphonse A. Gerhardstein

Michigan Journal of Race and Law

It is not right for children to die before their parents. It is not right for peaceful, unarmed citizens to die at the hands of the police. In my civil rights practice, I have met many mothers, fathers, and family members who are struggling to recover after a law enforcement officer caused the death of their loved one. Sure, they want fair compensation. But money does little to reduce their loss or make the grief more bearable. They often want to do something that will ensure that their loved one did not die in vain. They want to prevent other …


The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba Dec 2015

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Michigan Journal of Environmental & Administrative Law

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the …


Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul Feb 2015

Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul

University of Michigan Journal of Law Reform

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny …


Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane Jan 2015

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …


Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman Jan 2012

Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman

University of Michigan Journal of Law Reform Caveat

I represent a national non-profit consumer rights organization, as an amicus, in a federal appeal challenging a district court’s approval of a class-action settlement of claims under the federal Credit Repair Organization Act (CROA). My client maintains that the district court erred in finding that the settlement was “fair, reasonable, and adequate,” which is the standard for class-action settlement approval under the Federal Rules of Civil Procedure. In particular, we argue that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ view, it was fair, …


Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook Jan 2011

Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook

Michigan Telecommunications & Technology Law Review

Should a branded pharmaceutical company be allowed to pay a generic competitor to stay out of the market for a drug? Antitrust policy implies that such a deal should be prohibited, but the answer becomes less clear when the transaction is packaged as a patent-litigation settlement. Since Congress passed the Hatch-Waxman Act, which encourages generic manufacturers to challenge pharmaceutical patent validity, settlements of this kind have been on the rise. Congress, the Department of Justice, and the Federal Trade Commission have condemned these agreements as anticompetitive and costly to American consumers, but none of these bodies has been able to …


What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok Apr 2008

What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok

Michigan Law Review

Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation's Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to "reform" tort law throughout the 1980s. There was concern that Americans "egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being." The RAND report argued that the real risk of a torts "explosion" came from the world of mass …


Settler's Remorse, Floyd Abrams Apr 2007

Settler's Remorse, Floyd Abrams

Michigan Law Review

Who can quarrel with the notion that settling civil cases is generally a good thing? Litigation is expensive, time-consuming, preoccupying, and often personally destructive. Our courts are overburdened and, in any event, imperfect decision-making entities. It may even be true that, more often than not, "the absolute result of a trial is not as high a quality of justice as is the freely negotiated, give a little, take a little settlement." But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Sometimes, as Professor Owen Fiss …


Illuminating Secrecy: A New Economic Analysis Of Confidential Settlements, Scott A. Moss Mar 2007

Illuminating Secrecy: A New Economic Analysis Of Confidential Settlements, Scott A. Moss

Michigan Law Review

Even the most hotly contested lawsuits typically end in a confidential settlement forbidding the parties from disclosing their allegations, evidence, or settlement amount. Confidentiality draws fierce criticism for harming third parties by concealing serious misdeeds like discrimination, pollution, defective manufacturing, and sexual abuse. Others defend confidentiality as a mutually beneficial pay-for-silence bargain that facilitates settlement, serves judicial economy, and prevents frivolous copycat lawsuits. This debate is based in economic logic, yet most analyses have been surprisingly shallow as to how confidentiality affects incentives to settle. Depicting a more nuanced, complex reality of litigation and settlement, this Article reaches several conclusions …


The Law And Culture Of The Apology In Korean Dispute Settlement (With Japan And The United States In Mind), Ilhyung Lee Jan 2005

The Law And Culture Of The Apology In Korean Dispute Settlement (With Japan And The United States In Mind), Ilhyung Lee

Michigan Journal of International Law

This Article addresses the apology in civil dispute settlement in Korea, Japan's neighbor across the East Sea, using the U.S.-Japan comparative discussion as a helpful frame of reference. Part I provides the necessary background on the meaning of the apology and the leading commentary along the U.S.-Japan axis, beginning with the work of Wagatsuma and Rosett. Culture appears in this discussion in two regards. First, a question arises as to whether the very meaning of the apology as noted in the commentary reflects the U.S. cultural orientation, or instead has universal application. Second, some argue that cultural norms explain the …


Apology Within A Moral Dialectic: A Reply To Professor Robbennolt, Lee Taft Jan 2005

Apology Within A Moral Dialectic: A Reply To Professor Robbennolt, Lee Taft

Michigan Law Review

Over the last several years, much has been written about the role of apology in facilitating the resolution of legal disputes. Within this body of work a debate has developed among legal scholars, practitioners, and legislators. Under traditional rules of evidence an apology which acknowledged fault would enter evidence as an admission against interest. Now there is a movement to legislatively "protect" apologies from the effects of the traditional rule in order to facilitate apology without evidentiary encumbrance. Scholars who have argued in favor of the relaxation of the traditional rule have largely relied on anecdotal evidence to support their …


Turning From Tort To Administration, Richard A. Nagareda Feb 1996

Turning From Tort To Administration, Richard A. Nagareda

Michigan Law Review

My objective here is to challenge the notion that the recent mass tort settlements - for all their novel qualities in the mass tort area - are truly sui generis in the law. Rather, I contend that the rise of such settlements in tort mirrors the development of public administrative agencies earlier in this century - that, in both instances, powerful new institutions emerged outside preexisting channels of control to wield significant power over human lives and resources. I argue that courts usefully may draw upon familiar doctrines of judicial review in administrative law to form a conceptual framework for …


Psychological Barriers To Litigation Settlement: An Experimental Approach, Russell Korobkin, Chris Guthrie Oct 1994

Psychological Barriers To Litigation Settlement: An Experimental Approach, Russell Korobkin, Chris Guthrie

Michigan Law Review

In this article, we seek to substantiate "psychological barriers," as illustrated by the constructs described above, as a third explanation for the failure of legal disputants to settle out of court. Although we are not the first to hypothesize that psychological processes can, in theory, affect legal dispute negotiations, we attempt to give more definition to the otherwise vague contours of the psychological barriers hypothesis by bringing empirical data to bear on the question. To achieve this end, we conducted a series of nine laboratory experiments - involving nearly 450 subjects - designed to isolate the effects of the three …


The Recognition Of Judgments In The European Community: The Twenty-Fifth Anniversary Of The Brussels Convention, Robert C. Reuland Jan 1993

The Recognition Of Judgments In The European Community: The Twenty-Fifth Anniversary Of The Brussels Convention, Robert C. Reuland

Michigan Journal of International Law

This article is directed at two objectives. It will first provide, in Part I, an outline of the history of the Brussels Convention from its inception to the present day. It will examine the growth of the Convention from a vague undertaking of the six original Member States of the EC, through various treaties of accession and the 1988 Lugano Convention with the EFTA, and finally to the text currently in force. Part II will discuss the nature of the Convention and the philosophy behind it. The second purpose of this article is a more pragmatic one: to provide the …


Three Attorney Fee-Shifting Rules And Contingency Fees: Their Impact On Settlement Incentives, Bradley L. Smith Jun 1992

Three Attorney Fee-Shifting Rules And Contingency Fees: Their Impact On Settlement Incentives, Bradley L. Smith

Michigan Law Review

This Note seeks to predict the direction and magnitude of the change in settlement frequency under the three fee-shifting rules: American, British, and the British rule as modified by the PCC. Part I analyzes the proposed rule using the theoretical model of litigation and settlement developed by Hause. Part II examines the impact of fee-shifting when the plaintiff's lawyer receives reimbursement via a contingency fee. Analysis of indemnification in a contingency fee context raises several policy issues which section II.A addresses. Section II.B discusses the terms and assumptions made in adjusting Hause's model to reflect the standard contingency fee arrangement, …


Proposals To Amend Rule 68- Time To Abandon Ship, Stephen B. Burbank Jan 1986

Proposals To Amend Rule 68- Time To Abandon Ship, Stephen B. Burbank

University of Michigan Journal of Law Reform

It is no surprise that, having included "facilitating the settlement of the case" as one of the objectives of pretrial conferences in the 1983 amendments to Rule 16 of the Federal Rules of Civil Procedure, the Advisory Committee has turned its attention to Rule 68. The Rule was intended to provide an incentive to settle by requiring that a prevailing claimant who has declined a more favorable offer of judgment pay post-offer "costs." But, in the Advisory Committee's view, Rule 68 has proved ineffective. The concern, apparently, is not that too few civil cases filed in federal court are settled-less …


Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos Nov 1985

Abuse In Plaintiff Class Action Settlements: The Need For A Guardian During Pretrial Settlement Negotiations, Sylvia R. Lazos

Michigan Law Review

This Note explores the problem of abuse of the class action device during the pretrial settlement process. Part I analyzes the underlying sources of potential abuse in pretrial settlement negotiations. Part II assesses the adequacy of the standards currently used by courts to detect collusive class action settlements. Part III concludes that the appointment of a neutral third-party guardian to oversee the pretrial negotiation process furthers the judicial policy of encouraging settlements while protecting the interests of the absentee class.


The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs Oct 1985

The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs

University of Michigan Journal of Law Reform

This Note argues that Congress should amend the APPA to require a judicial public interest determination prior to the entry of a voluntary dismissal in government-initiated civil antitrust actions. Part I of this Note briefly describes the APPA and Federal Rule of Civil Procedure 41(a)(1). Part II asserts that APPA procedures do not currently apply to voluntary dismissals under Rule 41(a)(1). Part III concludes that the purposes underlying the APPA and general policy considerations support the legislative extension of the Act to dismissals. Part IV responds to objections to this proposal. Finally, Part V presents a specific amendment to the …


The Scope Of Judicial Review Of Consent Decrees Under The Antitrust Procedures And Penalties Act Of 1974, Michigan Law Review Oct 1983

The Scope Of Judicial Review Of Consent Decrees Under The Antitrust Procedures And Penalties Act Of 1974, Michigan Law Review

Michigan Law Review

In the wake of this uncertainty, this Note analyzes the proper scope of judicial review of consent decrees. The Note argues that to further the policies embodied in the APP A, courts should undertake intense review of proposed settlements before entering them as final judgments. Both the congressional intent in enacting the APP A and the public's interest in effective enforcement of the antitrust laws support intense judicial review. The Note then demonstrates that the deferential standard that some courts have applied is derived mainly from a case that is inapplicable to the review of consent decrees. Finally, the Note …


Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review Jun 1983

Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review

Michigan Law Review

This Note finds both the Adams and Swift positions unsatisfactory. Part I contends that Adams misconstrued the legislative history of the FTCA amendments by applying a minimal notice standard and then argues that Swift contravenes the amendments' fairness policy by permitting ambiguous, overreaching documentation requests. Part II contends that courts should interpret section 2675's "presented the claim" language as an accommodation between two competing Congressional objectives: presuit claims settlement and fair treatment of claimants. The Note proposes that until the Department of Justice modifies its current claims regulations, courts should toll the statute of limitations whenever an individual's claim includes …


The Tentative Settlement Class And Class Action Suits Under Title Vii Of The Civil Rights Act, Michigan Law Review Jun 1974

The Tentative Settlement Class And Class Action Suits Under Title Vii Of The Civil Rights Act, Michigan Law Review

Michigan Law Review

This Note will examine the potential utility of a tentative settlement class (TSC) in suits initiated under title VII of the Civil Rights Act of 1964. The advantages and disadvantages of the TSC will be discussed in the context of analyzing whether the use of a TSC is valid under rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. The discussion of the merits of the TSC in the title VII context will illustrate the problems inherent in the use of a tentative class for encouraging settlements of any class action.


Taxation - Federal Estate Tax - Powers Of Appointment - When Property Subject Thereto Is Taxable As Part Of Donee's Estate - Effect Of A Compromise, Charles J. O'Laughlin Jun 1942

Taxation - Federal Estate Tax - Powers Of Appointment - When Property Subject Thereto Is Taxable As Part Of Donee's Estate - Effect Of A Compromise, Charles J. O'Laughlin

Michigan Law Review

The decedent was a beneficiary of a trust established by his father and of two other trusts created by his mother. From his father's trust the decedent was to receive a portion of the income prior to his twenty-eighth birthday, when he was to receive the principal and accumulated income. His mother's trusts gave him the income for life, subject to certain restrictions before he attained the age of twenty-eight. Under all three trusts he had a general testamentary power of appointment. In case of nonexercise of this power, decedent's descendants were to be default takers under the donor's will, …


Mortgages - Deed In Lieu Of Foreclosure - Validity, Elbridge D. Phelps Nov 1937

Mortgages - Deed In Lieu Of Foreclosure - Validity, Elbridge D. Phelps

Michigan Law Review

Depression years have brought to the fore a question much controverted in the early law, but now said to have become settled. That question regards the effect and efficacy of a conveyance of the mortgaged land, or a transfer of the equity of redemption, by the mortgagor to his mortgagee. It seems to have been cheerfully assumed by some lawyers, and by laymen in general, that in the absence of liens subsequent to the mortgage, the procedure is perfectly safe and proper in every case. It is the purpose of this discussion, however, to point out certain dangers inherent in …


Torts - Contribution Between Joint Tortfeasors - Right Of Insurer To Contribution May 1934

Torts - Contribution Between Joint Tortfeasors - Right Of Insurer To Contribution

Michigan Law Review

One C negligently drove her car into an obstruction on the highway placed there by defendant. The accident occurred at night and the defendant had failed to place a light on the obstruction to indicate its presence to motorists. At the time of the accident M was a guest in C's car and suffered injuries as a result of the collision. Plaintiff, insurance carrier for C, settled with M for the injuries sustained and obtained a release covering the liability of all parties. Plaintiff as subrogee of C's rights brought the present action to recover contribution from …


Torts-Release Of Joint Tortfeasor Feb 1934

Torts-Release Of Joint Tortfeasor

Michigan Law Review

Plaintiff, vendee, sued defendant, vendor, upon an alleged fraudulent warranty that the cows, which were the subject matter of the sale, had been immunized against hemorrhagic septicaemia, or "shipping fever." While in transit, through the negligence of the railroad, the cows were injured. Their resistance to the disease was consequently lowered and they became infected, whereby plaintiff was damaged by consequent sterility, unmarketable milk, and abortions. Plaintiff accepted $1,500 from the railroad as "settlement in full for any liability you may be under." This settlement was pleaded as a bar to the action against the vendor. Held, that plaintiff's …