Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Dispute Resolution and Arbitration (10)
- Litigation (10)
- Intellectual Property Law (7)
- Antitrust and Trade Regulation (6)
- Civil Procedure (6)
-
- Business (4)
- Social and Behavioral Sciences (4)
- Technology and Innovation (4)
- Economics (3)
- Judges (3)
- Legal Profession (3)
- Commercial Law (2)
- Courts (2)
- Entrepreneurial and Small Business Operations (2)
- Environmental Law (2)
- Health Law and Policy (2)
- Industrial Organization (2)
- Insurance Law (2)
- Law and Economics (2)
- Law and Society (2)
- Life Sciences (2)
- Medicine and Health Sciences (2)
- Public Health (2)
- Securities Law (2)
- Torts (2)
- Agriculture (1)
- Architecture (1)
- Banking and Finance Law (1)
- Biodiversity (1)
- Institution
- Publication Year
- Publication
-
- Robert Rhee (5)
- Aaron Edlin (3)
- Curtis E.A. Karnow (3)
- Byron G. Stier (2)
- Jonathan R. Cohen (2)
-
- Alexandra D. Lahav (1)
- Christopher C. French (1)
- Christopher J Robinette (1)
- Christopher J. Buccafusco (1)
- Christopher R. Page (1)
- Confluence Journal Environmental Studies (CJES), Kogi State University, Nigeria (1)
- D. Theodore Rave (1)
- Daniel L. Rubinfeld (1)
- Dr Rebecca Giblin (1)
- Ethan Millar (1)
- Garry A. Gabison (1)
- Gillian K Hadfield (1)
- Hamid Nasseri (1)
- Harold I. Abramson (1)
- Hillary A Sale (1)
- James Grimmelmann (1)
- Jonathan S. Masur (1)
- Larissa Lee (1)
- Lisa Young (1)
- Lydia R. Nussbaum (1)
- Mark C. Weber (1)
- Michael Bazyler (1)
- Mikah K. Story Thompson (1)
- Nancy Welsh (1)
- Peter R. Robinson (1)
- File Type
Articles 1 - 30 of 53
Full-Text Articles in Law
Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney
Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney
Susan S. Fortney
No abstract provided.
The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh
The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh
Nancy Welsh
Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help courts and counsel …
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to confirm …
Do Patent Challenges Increase Competition?, Stephen Yelderman
Do Patent Challenges Increase Competition?, Stephen Yelderman
Stephen Yelderman
As a general rule, judges and scholars believe settlement is a good thing. But for nearly a century, the Supreme Court has said that patent litigation is categorically different, since it offers the chance to increase competition by freeing the public from the burdens of a monopoly. Based on this theory, and in the hopes of seeing more patent litigation fought to completion, the Court has overturned long-standing common-law doctrines, declined to enforce otherwise-valid contracts, and—in the recent case of Federal Trade Commission v Actavis, Inc—subjected patent settlements to scrutiny under the antitrust laws. Similar reasoning has resulted in legislative …
A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee
A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee
Robert Rhee
Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …
Advising Clients To Apologize, Jonathan R. Cohen
Advising Clients To Apologize, Jonathan R. Cohen
Jonathan R. Cohen
The article argues that lawyers should consider the possibility of advising clients to apologize for harms they commit, as in some cases apology may best serve their client's interests. The articles discusses some of the pros and cons to apology in the legal setting, as well as barriers that may inhibit apologies.
The Dumping Dragon: Analysing China's Evolving Anti-Dumping Behaviour, Umair H. Ghori
The Dumping Dragon: Analysing China's Evolving Anti-Dumping Behaviour, Umair H. Ghori
Umair H. Ghori
China is a major target for anti-dumping measures by both developed and developing countries. Its rapid industrial transition to higher value-added sectors brings it in direct conflict with the US and the EU. Anti-dumping measures have consistently been employed by the US and the EU to protect their domestic markets from encroaching Chinese exports. In the initial few years of joining the WTO, China rarely initiated any complaint in the WTO Dispute Settlement Mechanism (DSM), while facing several complaints itself. This approach has now evolved. China appears to have acquired the knowledge and capacity to access the WTO DSM for …
When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave
When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave
D. Theodore Rave
On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …
The Problems With The Private Enforcement Of Cercla: An Empirical Analysis, Garry A. Gabison
The Problems With The Private Enforcement Of Cercla: An Empirical Analysis, Garry A. Gabison
Garry A. Gabison
This paper investigates the effect of the public enforcement filings on the private filings of CERCLA suits. First, this paper argues and empirically tests that private suits are more substitute than complement of private suits. Second, it finds that the EPA has in place procedures and remedies not accessible to private enforcers. In general, the EPA settles more cases pre- and post filing. Furthermore, private parties have more cases dismissed. This paper argues that this point to the EPA selecting easier cases and leaving harder cases to the private enforcer – or so its procedures make it seem from the …
Party Autonomy In Tort Theory And Reform, Christopher Robinette
Party Autonomy In Tort Theory And Reform, Christopher Robinette
Christopher J Robinette
Cognitive Fallacies Reading List, Curtis E.A. Karnow
Cognitive Fallacies Reading List, Curtis E.A. Karnow
Curtis E.A. Karnow
Reading list of books, articles, reports, and other material relating to cognitive fallacies, i.e., errors in reasoning which affect us all, including lawyers and judges. These errors in turn affect lawyers’ competence and judges’ ability to provide fair, impartial and well-reasoned decisions.
An Investigation Of The Role Of Wipo Arbitration Rules In Intellectual Property Dispute Resolutions, Hamid Nasseri
An Investigation Of The Role Of Wipo Arbitration Rules In Intellectual Property Dispute Resolutions, Hamid Nasseri
Hamid Nasseri
Abstract
WIPO arbitration rules which became imperative in 2002 is one of the most comprehensive and professional rules for the settlement of intellectual property disputes. These arbitration rules are the best in settling intellectual property disputes when we take into consideration the significant issues relevant to the procedure of settling intellectual property disputes such as: the possibility of direct access of individuals to arbitration, the speed of arbitration, professionalism, organizational claims, predictions of the likelihood of appeal to alternative approaches, confidentiality of arbitration as well as the arrangement of protection schemes.
Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson
Protocols For International Arbitrators Who Dare To Settle Cases, Harold Abramson
Harold I. Abramson
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 …
The Fearon Corollary: Private Property Rights As War, W. C. Bunting
The Fearon Corollary: Private Property Rights As War, W. C. Bunting
W. C. Bunting
ABSTRACT: This Article models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of scarce resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to conflict/war, the following question is considered: if pre-conflict common ownership is socially-optimal, under what conditions will disputing parties fail to bargain around the conflict? In addition to the explanations identified by Professor Fearon, the present article offers an additional behavioral explanation evidenced …
Class(Ic) Settlement Problems, Curtis E.A. Karnow
Class(Ic) Settlement Problems, Curtis E.A. Karnow
Curtis E.A. Karnow
A collection of classic problems in papers filed for preliminary court approval of class action settlements
Admission Of Guilt: Sinking Teeth Into The Sec's Sweetheart Deals, Larissa Lee
Admission Of Guilt: Sinking Teeth Into The Sec's Sweetheart Deals, Larissa Lee
Larissa Lee
Throughout its existence, the Securities and Exchange Commission (SEC) has allowed defendants to settle cases without admitting to the allegations of wrongdoing. This “neither admit nor deny” policy has received heavy criticism by judges, Congress, and the public, especially in the wake of the 2008 financial crisis. On June 18, 2013, SEC Chairman Mary Jo White announced the agency’s intention to require admissions of guilt in certain cases. While Chairman White did not articulate a clear standard of when admissions would be required, she did say that the agency would focus on the egregiousness of the defendant’s conduct and the …
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Commercial Arbitration And Settlement: Empirical Insights Into The Roles Arbitrators Play, Thomas Stipanowich, Zachary Ulrich
Thomas J. Stipanowich
A wide-ranging new Straus Institute for Dispute Resolution Survey of experienced arbitrators, conducted with the cooperation of the College of Commercial Arbitrators, reflects the growing professionalization of commercial arbitration, increasing competition for cases, and many other trends in arbitration practice. It also shows that a grower percentage of arbitrated cases are being settled prior to award or to the start of hearings, and offers a strong rationale for greater emphasis on the role of arbitrators in setting the stage for or facilitating settlement. Early settlement of a dispute can be a uniquely effective way of minimizing cost and cycle time …
Antitrust Settlements, Daniel L. Rubinfeld
Antitrust Settlements, Daniel L. Rubinfeld
Daniel L. Rubinfeld
For Reconciliation, Thomas Shaffer, Andrew Mcthenia
For Reconciliation, Thomas Shaffer, Andrew Mcthenia
Thomas L. Shaffer
No abstract provided.
Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel
Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel
Randy J Kozel
The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current …
Fisheries Dispute Settlement Under The Law Of The Sea Convention: Current Practice In The Western And Central Pacific Region, Martin Tsamenyi, Ben Milligan, Kwame Mfodwo
Fisheries Dispute Settlement Under The Law Of The Sea Convention: Current Practice In The Western And Central Pacific Region, Martin Tsamenyi, Ben Milligan, Kwame Mfodwo
Professor Ben M Tsamenyi
No abstract provided.
Future Conduct And The Limits Of Class-Action Settlements, James Grimmelmann
Future Conduct And The Limits Of Class-Action Settlements, James Grimmelmann
James Grimmelmann
This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.
Courts should guard against the dangers of future-conduct releases with …
Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French
Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French
Christopher C. French
In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …
Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum
Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum
Lydia R. Nussbaum
Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen
Jonathan R. Cohen
In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.
Socio-Economic Effects Of Demolishing Squatter Settlements And Illegal Structures In Abuja Metropolis, Federal Capital Territory, Nigeria, Ishaku Iy Mallo Phd, Victor G. Obasanya
Socio-Economic Effects Of Demolishing Squatter Settlements And Illegal Structures In Abuja Metropolis, Federal Capital Territory, Nigeria, Ishaku Iy Mallo Phd, Victor G. Obasanya
Confluence Journal Environmental Studies (CJES), Kogi State University, Nigeria
Abuja the Federal Capital Territory and study area is located between latitudes 8o25’ and 9o25’ North of the Equator and longitudes 6o45’ and 7o45’ East of the Greenwich Meridian. The study was carried out in Abuja Phase 1, and it is aimed at highlighting various socioeconomic effects of demolition of illegal structures and informal or squatter settlements on the people within the study area. Data was collected through reconnaissance survey, personal interviews with respondents, and a well laid out questionnaire. The results indicate that the demolition exercise embarked upon by the authorities in the Federal Capital Territory was a response …
The Role Of Judicial Discretion In Dispute Settlement, James Andreoni, Ray D. Madoff
The Role Of Judicial Discretion In Dispute Settlement, James Andreoni, Ray D. Madoff
Ray D. Madoff
We consider two common modes of judicial resolution: judicial discretion, where the judge or jury has broad discretion in fashioning a remedy, and winner take all where the remedy is pre-determined by the governing substantive law. We analyze these systems in light of the fact that pre-trial bargainers have been shown to have excessive confidence in their own positions. We find theoretically that winner-take-all rules magnify the effects of over-confidence and diminish the likelihood of settling relative to judicial discretion. We confirm our model with a laboratory experiment showing significantly fewer pre-trial agreements under winner-take-all. These results imply that increasing …
Recognition Of Palestinian Statehood: A Clarification Of The Interests Of The Concerned Parties, Winston Nagan, Aitza Haddad
Recognition Of Palestinian Statehood: A Clarification Of The Interests Of The Concerned Parties, Winston Nagan, Aitza Haddad
Winston P Nagan
This paper reviews the history of the claims to statehood and sovereignty of the Palestinian people, from the period of the League of Nations mandate to the current move to secure UN approval of a Palestinian State. The article examines the claims to statehood in international law and examines the problem in the broader context of claims about human rights and humanitarian violations, the Israeli claims to security and legitimacy and the US claims for its mediation goal to ensure that the problem does not descend into a legal vacuum in which the fundamental interests of all parties in security …