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Articles 1 - 27 of 27
Full-Text Articles in Law
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Overcoming Roadblocks To Reaching Settlement In Family Law Cases, John M. Lande
Faculty Publications
In “litigation as usual,” settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes roadblocks to negotiation and ways to overcome them to reach good settlements in family law cases.
Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande
Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande
Faculty Publications
Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …
Limits Of Procedural Choice Of Law, S. I. Strong
Limits Of Procedural Choice Of Law, S. I. Strong
Faculty Publications
Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.
Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …
Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin
Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin
Faculty Publications
In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande
Faculty Publications
Counseling clients about dispute resolution options is easier said than done. These can be complex and difficult decisions, and lawyers may not have appropriate resources to help lawyers counsel clients in choosing dispute resolution options. While establishing rules requiring this kind of training may help to remedy this shortcoming, perhaps the most promising involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.
A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert
A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert
Faculty Publications
This article evaluates these approaches from the perspective of decision theory and, finding each lacking, proposes an alternative approach to structuring the rule of reason governing RPM. Part II sets forth the decision-theoretic perspective, which seeks to maximize the net benefits of liability rules by minimizing the sum of decision and error costs. Part III then evaluates, from the standpoint of decision theory, the proposed approaches to evaluating instances of RPM. Part IV proposes an alternative evaluative approach that is more consistent with decision theory’s insights.
Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande
Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John M. Lande
Faculty Publications
This article reports on a study of members of the Divorce Cooperation Institute (DCI), a group of Wisconsin lawyers who use a "Cooperative" process to provide a constructive and efficient negotiation process in divorce cases. The study involved in-depth telephone interviews and several surveys of DCI members. Although DCI members use this process only in divorce cases, it can be readily adapted for other types of cases.DCI's approach generally involves an explicit process agreement at the outset, based on principles of: (1) acting civilly, (2) responding promptly to reasonable requests for information, (3) disclosing all relevant financial information, (4) obtaining …
Health Courts?, Philip G. Peters Jr.
Health Courts?, Philip G. Peters Jr.
Faculty Publications
This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a …
Introduction To Vanishing Trial Symposium, John M. Lande
Introduction To Vanishing Trial Symposium, John M. Lande
Faculty Publications
This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …
Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff
Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff
Faculty Publications
In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Faculty Publications
Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …
Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande
Faculty Publications
To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …
Maternity Leave Under The Fmla: An Analysis Of The Litigation Experience , Rafael Gely, Timothy D. Chandler
Maternity Leave Under The Fmla: An Analysis Of The Litigation Experience , Rafael Gely, Timothy D. Chandler
Faculty Publications
We begin with a brief description of trends in female labor force participation and the presence of dual-earner households in the U.S. labor market, conditions which likely led to the need for family and medical leave legislation. We then review various practices that business and government organizations have implemented to balance work and family conflicts, as well as related features of the FMLA, particularly those pertaining to childbirth and adoption. With this background in place, we introduce a framework for examining FMLA litigation. We then review cases litigated in federal court under the FMLA involving requests for family leave due …
Relations Between Lawyer And Client In Damages: Model, Typical, Or Dysfunctional?, Rodney J. Uphoff
Relations Between Lawyer And Client In Damages: Model, Typical, Or Dysfunctional?, Rodney J. Uphoff
Faculty Publications
This essay begins, therefore, by briefly examining the question of what constitutes good lawyering. The essay acknowledges the difficulty of defining precisely what is good lawyering. In fact, scholars, judges, and lawyers often disagree markedly when they characterize lawyer behavior using the term. Not surprising, then, even though academic commentators routinely trumpet the importance of establishing a meaningful attorney-client relationship as an important aspect of good lawyering, not all in the legal profession embrace that view.8Indeed, the debate about the importance of a good lawyer-client relationship largely reflects contrasting attitudes within the legal profession about the client's role in the …
Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.
Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.
Faculty Publications
Critics of medical malpractice litigation believe that expert testimony is often anecdotal and biased. To remedy this problem, several have recently suggested that attorneys should provide and courts should seek reliable empirical evidence of actual clinical norms. Their suggestion should be welcomed. If our expectations are realistic and the design pitfalls are avoided, greater use of use of empirical research will improve the fairness of malpractice adjudication. At least in theory, it could be useful in both the "easy" cases (where it reveals that a consensus standard of care exists) and also some of the harder cases (where clinical practices …
The Role Of Jury In Modern Malpractice Law, Philip G. Peters Jr.
The Role Of Jury In Modern Malpractice Law, Philip G. Peters Jr.
Faculty Publications
This article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike …
Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff
Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff
Faculty Publications
A law student approached me not long ago to discuss a problem he had encountered while helping to prepare a criminal case for retrial. The defendant's first trial ended with a hung jury. The defendant, Steven Brown, now faced a second trial on the same misdemeanor charge of assaulting a police officer. Although the defendant still wanted to go to trial, Brown told defense counsel that he did not want his elderly father to have to testify again. From defense counsel's standpoint, the father's testimony was critical because he was the only witness corroborating the defendant's version of the event. …
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
Faculty Publications
According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …
Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande
Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande
Faculty Publications
To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.
Third Party Intervention And Joinder As Of Right In International Arbitration: An Infringement Of Individual Contract Rights Or A Proper Equitable Measure?, S. I. Strong
Faculty Publications
Arbitration has long been called a creature of contract, a dispute resolution mechanism that has no form or validity outside the four corners of the parties' arbitration agreement. Some feel, however, that it may be time to change this narrow interpretation of arbitration's function and scope, and nowhere is this need for reform more apparent than in the realm of multi-party international disputes. Arbitration has taken on an increasingly important role in international commercial transactions and has become the preferred dispute resolution mechanism in many types of transnational contracts. Although there are any number of reasons why this may be …
How Will Lawyering And Mediation Practices Transform Each Other?, John M. Lande
How Will Lawyering And Mediation Practices Transform Each Other?, John M. Lande
Faculty Publications
This article sketches out some aspects of both lawyering and mediation practice that may be affected by development of a litimediation culture. Part II examines the growth of the private market for mediation and an accompanying specialization of mediation practice. These changes seem likely to require mediators to develop market niches with identifiable characteristics of their mediation practices. Simultaneously, lawyers, as regular buyers of mediation services, will be expected to recognize and make decisions based on significant distinctions between mediation providers.
Suing The Firm, Richard C. Reuben
Suing The Firm, Richard C. Reuben
Faculty Publications
Lawyers who once would rather take grievances against their firms to the grave are now taking them to court. Is it the death of professionalism or the dawning of accountability?
Causation In Fact In Omission Cases, David A. Fischer
Causation In Fact In Omission Cases, David A. Fischer
Faculty Publications
This article analyzes the difficulties involved in attributing cause in fact in omission cases, and suggests possible resolutions. Part II discusses the basic concept of causation, and the distinction between acts and omissions. Part III discusses the particular problems that arise in applying causation principles in omission cases. Part IV then analyzes these problems from both corrective justice and economic analysis perspectives. Finally, the article suggests an approach for solving these complex issues.
Litigation As A Predatory Practice, Gary Myers
Litigation As A Predatory Practice, Gary Myers
Faculty Publications
This article reviews and evaluates the sham litigation case law, finding that many courts have allowed immunity too readily or on inappropriate grounds. It attempts to develop comprehensive standards for antitrust claims based on sham litigation.
Emergency In The Constitutional Law Of The United States, William B. Fisch
Emergency In The Constitutional Law Of The United States, William B. Fisch
Faculty Publications
In the following report I shall concentrate on the law as pronounced by the United States Supreme Court, which has, within the sphere of judicial competence, the last say on the interpretation of the Constitution. The volume of significant litigation on the subject which stops below the Supreme Court has been relatively light, and the constitutional law declared by the lower courts has played a less significant role than is the case in many other issues. Indeed, as we shall see, the Supreme Court itself has had less to say on the topic than might be hoped for. I shall …
Theories Of Water Pollution Litigation, Peter N. Davis
Theories Of Water Pollution Litigation, Peter N. Davis
Faculty Publications
The common law has traditionally provided the rules that govern relationships among landowners in their use of watercourses. These rules are embodied in the eastern United States in the doctrine of riparian rights, which addresses itself both to water quantity, and to water quality. Persons complaining of pollution of waters abutting their lands have, in addition to redress by complaint to the state pollution control agency, redress by lawsuit against the alleged polluter. This common law supplements the body of statutory law regulating the waters of the state for the benefit of the people.
Letter, 1937-04-06, Lloyd Gaines To George L. Gaines; Postscript Regarding Mo Supreme Court Case., Lloyd L. Gaines
Letter, 1937-04-06, Lloyd Gaines To George L. Gaines; Postscript Regarding Mo Supreme Court Case., Lloyd L. Gaines
Gaines Family Correspondence
No envelope. Letter 4 pages, black ink. Addressed from 1017 1/2 E. Catherine, Ann Arbor, Michigan, April 6, 1937. Discusses family news and life in Ann Arbor, Michigan. Postscript regarding MO Supreme Court case.