Law Commons^™

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

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Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

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With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

The New Singapore Mediation Convention: The Process And Key Choices, Harold Abramson

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No abstract provided.

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

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High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …

The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel

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It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

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Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

“Latina/Oization” Of The Midwest: Cambio De Colores (Changes Of Colors) As Agromaquilas Expand Into The Heartland, Sylvia R. Lazos

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This article focuses on important developments in Latina/o experience in the United States. Latinas/os are now the majority minority group in the United States. Increasingly, Latinas/os are rural dwellers, living in areas without a historical Latina/o presence. Latinas/os are no longer concentrated into the land geography that was Mexico prior to the Treaty of Guadalupe Hidalgo. Rather, the most recent wave of Latina/o immigration has dispersed settlement throughout the United States. This article discusses these changes in Midwest rural communities, and describes this new pattern of Latina/o immigration to the United States. The article then focuses on the cultural, socio-economic, …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

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One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

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Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson

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The best time to settle an international business dispute can be after the international arbitration proceeding has been commenced. Just like in court litigation, parties may be ready to settle only after the adjudicatory process has begun and even has progressed. In court, judges commonly open the door to settlement; they hold settlement conferences and even actively participate in settlement negotiations. But arbitrators rarely open the door to settlement; when they do, they risk losing their jobs. So, what can international arbitrators safely do? What dare they do?

In this article, the author explores the dilemma presented when one neutral …

Symposium, The Florida Tobacco Litigation -- Fact, Law, Policy, And Significance, Jeffrey W. Stempel

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This is the transcript of the Florida tobacco litigation symposium, discussing the s$11.3 billion settlement concerning tobacco in the state of Florida. Jeffrey W. Stempel served as co-chair and moderator of the symposium.

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

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Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

Motions To Enforce Settlements: An Important Procedural Tool, Jeffrey W. Stempel

Scholarly Works

No abstract provided.