Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 169

Full-Text Articles in Law

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley May 2021

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

Faculty Scholarship at Penn Law

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the ...


A Remedy For The Least Well Off: The Case For Preliminary Damages, Gideon Parchomovsky, Alex Stein Feb 2021

A Remedy For The Least Well Off: The Case For Preliminary Damages, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either ...


Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang Jan 2021

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a ...


A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz Jan 2021

A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz

Faculty Scholarship at Penn Law

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply ...


Power And Statistical Significance In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach Jan 2021

Power And Statistical Significance In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach

Faculty Scholarship at Penn Law

Event studies, a half-century-old approach to measuring the effect of events on stock prices, are now ubiquitous in securities fraud litigation. In determining whether the event study demonstrates a price effect, expert witnesses typically base their conclusion on whether the results are statistically significant at the 95% confidence level, a threshold that is drawn from the academic literature. As a positive matter, this represents a disconnect with legal standards of proof. As a normative matter, it may reduce enforcement of fraud claims because litigation event studies typically involve quite low statistical power even for large-scale frauds.

This paper, written for ...


A New (Republican) Litigation State?, Stephen B. Burbank, Sean Farhang Jan 2021

A New (Republican) Litigation State?, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

It is a commonplace in American politics that Democrats are far more likely than Republicans to favor access to courts to enforce individual rights with lawsuits. In this article we show that conventional wisdom, long true, no longer reflects party agendas in Congress. We report the results of an empirical examination of bills containing private rights of action with pro-plaintiff fee-shifting provisions that were introduced in Congress from 1989 through 2018. The last eight years of our data document escalating Republican-party support for proposals to create individual rights enforceable by private lawsuits, mobilized with attorney’s fee awards. By 2015-18 ...


The Search For Clarity In Attorney's Duty To Google, Michael Thomas Murphy Aug 2020

The Search For Clarity In Attorney's Duty To Google, Michael Thomas Murphy

Faculty Scholarship at Penn Law

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Jan 2020

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence ...


Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo Sep 2019

Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo

Faculty Scholarship at Penn Law

The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.


Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii Jan 2019

Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article ...


Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas Jan 2019

Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas

Faculty Scholarship at Penn Law

In response to a sharp increase in litigation challenging mergers, the Delaware Chancery Court issued the 2016 Trulia decision, which substantively reduced the attractiveness of Delaware as a forum for these suits. In this Article, we empirically assess the response of plaintiffs’ attorneys to these developments. Specifically, we document a troubling trend—the flight of merger litigation to federal court where these cases are overwhelmingly resolved through voluntary dismissals that provide no benefit to the plaintiff class but generate a payment to plaintiffs’ counsel in the form of a mootness fee. In 2018, for example, 77% of deals with litigation ...


Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland Jan 2019

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

Faculty Scholarship at Penn Law

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the ...


The Myth Of Morrison: Securities Fraud Litigation Against Foreign Issuers, Robert Bartlett, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon Jan 2019

The Myth Of Morrison: Securities Fraud Litigation Against Foreign Issuers, Robert Bartlett, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

Using a sample of 388 securities fraud lawsuits filed between 2002 and 2017 against foreign issuers, we examine the effect of the Supreme Court's decision in Morrison v. National Australia Bank Ltd. We find that the description of Morrison as a steamroller, substantially ending litigation against foreign issuers, is a myth. Instead, we find that Morrison did not significantly change the type of litigation brought against foreign issuers, which, both before and after this case, focused on foreign issuers with a U.S. listing and substantial U.S. trading volume. Although dismissal rates rose post-Morrison, we find no ...


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff Dec 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


The Logic And Limits Of Event Studies In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick Jan 2018

The Logic And Limits Of Event Studies In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Faculty Scholarship at Penn Law

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


The Federal Rules Of Inmate Appeals, Catherine T. Struve Jan 2018

The Federal Rules Of Inmate Appeals, Catherine T. Struve

Faculty Scholarship at Penn Law

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management ...


Rethinking Judicial Review Of High Volume Agency Adjudication, Jonah B. Gelbach, David Marcus Sep 2017

Rethinking Judicial Review Of High Volume Agency Adjudication, Jonah B. Gelbach, David Marcus

Faculty Scholarship at Penn Law

Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We ...


The Use And Reliability Of Federal Nature Of Suit Codes, Christina L. Boyd, David A. Hoffman Jul 2017

The Use And Reliability Of Federal Nature Of Suit Codes, Christina L. Boyd, David A. Hoffman

Faculty Scholarship at Penn Law

When filing a civil case in a federal district court, attorneys must identify one, and only one, of ninety issue area nature of suit (NOS) codes that best describes their case. While this may seem like a trivial moment in litigation, the selection of this single descriptor has significant implications for court statistics, empirical research findings, and the allocation of resources to federal courts, including judgeships. Despite the import of NOS codes, there is little within the process of choosing them to guarantee reliability in the selected NOS codes. To assess how reliable NOS codes are, we examine a database ...


Error Costs, Legal Standards Of Proof And Statistical Significance, Michelle Burtis, Jonah B. Gelbach, Bruce H. Kobayashi Apr 2017

Error Costs, Legal Standards Of Proof And Statistical Significance, Michelle Burtis, Jonah B. Gelbach, Bruce H. Kobayashi

Faculty Scholarship at Penn Law

The relationship between legal standards of proof and thresholds of statistical significance is a well-known and studied phenomena in the academic literature. Moreover, the distinction between the two has been recognized in law. For example, in Matrix v. Siracusano, the Court unanimously rejected the petitioner’s argument that the issue of materiality in a securities class action can be defined by the presence or absence of a statistically significant effect. However, in other contexts, thresholds based on fixed significance levels imported from academic settings continue to be used as a legal standard of proof. Our positive analysis demonstrates how a ...


American Pipe Tolling, Statutes Of Repose, And Protective Filings: An Empirical Study, David Freeman Engstrom, Jonah B. Gelbach Mar 2017

American Pipe Tolling, Statutes Of Repose, And Protective Filings: An Empirical Study, David Freeman Engstrom, Jonah B. Gelbach

Faculty Scholarship at Penn Law

This paper offers a conceptual and empirical analysis of a key issue that overhangs CalPERS v. ANZ Securities, soon to be decided by the Supreme Court. In particular, the paper offers an empirical estimate of the plausible quantity of wasteful protective filings that putative class members might make if the Court were to hold that American Pipe tolling does not apply to statutes of repose in the federal securities laws.


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang Jan 2017

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

Faculty Scholarship at Penn Law

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 ...


Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff Jan 2017

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the ...


The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach Jan 2017

The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach

Faculty Scholarship at Penn Law

In Tyson Foods v. Bouaphakeo, a "donning and doffing" case brought under Iowa state law incorporating the Fair Labor Standards Act's overtime pay provisions, the petitioners asked the Supreme Court to reject the use of statistical evidence in Rule 23(b)(3) class certification. To its great credit, the Court refused. In its majority opinion, the Court cited both the Federal Rules of Evidence and federal common law interpreting the FLSA. In this paper, I take a moderately deep dive into the facts of the case, and the three opinions penned by Justice Kennedy (for the Court), Chief Justice ...


Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky Jan 2017

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship at Penn Law

The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key ...


Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Thomas Murphy Jan 2017

Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Thomas Murphy

Faculty Scholarship at Penn Law

This article presents a theoretical model by which a judge could impose civil sanctions on an attorney - relying in part on Rule 1 of the Federal Rules of Civil Procedure - for that attorney’s failure to utilize time- and expense-saving technology.

Rule 1 now charges all participants in the legal system to ensure the “just, speedy and inexpensive” resolution of disputes. In today’s litigation environment, a lawyer managing a case in discovery needs robust technological competence to meet that charge. However, the legal industry is slow to adopt technology, favoring “tried and true” methods over efficiency. This conflict is ...


The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach Sep 2016

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

Faculty Scholarship at Penn Law

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 ...


A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus Jul 2016

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

Faculty Scholarship at Penn Law

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set ...


Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy Apr 2016

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy

Faculty Scholarship at Penn Law

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting ...


“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer Feb 2016

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

Faculty Scholarship at Penn Law

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and ...