Law Commons^™

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory …

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

Choice Of Law As Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in …

“Encroachments And Oppressions”: The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at "procedural reform" by corporate …

A Regulatory Theory Of Legal Claims, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Alternative Litigation Finance And The Limits Of The Work-Product Doctrine, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course …

Regulation Of Dispute Resolution In The United States Of America: From The Formal To The Informal To The ‘Semi-Formal’, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The story of ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalized by its more formal use in courts. At the same time, use of private forms of dispute resolution in mediation, arbitration and newly hybridised forms of dispute resolution among disputants who can choose (and afford) to leave the formal justice system (in both large commercial matters and private family matters) has resulted in claims of increased privatization of justice, with consequences for access to …

Introduction & Coda, Multi-Party Dispute Resolution, Democracy And Decision Making: Vol. Ii Of Complex Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

Complex Dispute Resolution: Volume Iii: Introduction And Coda: International Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.

Yet mechanisms of enforcement attendant …

The Federal Rules Of Civil Settlement, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement

This Article begins by providing …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

What The Shutts Opt-Out Right Is And What It Ought To Be, Brian Wolfman, Alan B. Morrison

Georgetown Law Faculty Publications and Other Works

This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement …

Adrift On The Sea Of Indeterminacy, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

Today's conflicts scholars no doubt consider themselves a diverse bunch, with widely differing views about how law should be chosen in multistate disputes. But from the trenches, most of them look alike. Each waxes eloquent about the search for the perfect solution-the most intellectually and morally satisfying choice of law for each dispute-and each ends the theorizing by embracing some proposition that will prove wholly indeterminate in practice.

Sexual Character Evidence In Civil Actions: Refining The Propensity Rule, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

When claims of sexual misconduct are made, two threads are often seen in the kinds of questions raised: Did she "invite it," and has he ever done it before? The way these questions are handled can determine the outcome of a sexual misconduct case. In 1995, Congress weighed in on whether these questions could be asked in civil cases in federal court and adopted two significant changes to the rules of evidence. One, revised Rule 412,4 extends "rape shield" protection to civil actions that claim sexual misconduct, including sexual harassment. The other, new Rule 415,5 allows plaintiffs to offer evidence …

The Collision Between New Discovery Amendments And Expert Testimony Rules, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The young litigator's nightmare was always the same. He was in medieval Europe, ready to engage in a sword fight with the expert swordsman representing his arch rival. After countless hours of preparation, he felt confident that he would be able to hold his own against the swordsman. But when the swordsman drew his lengthy rapier from its sheath, the young attorney pulled only a short dagger from his scabbard. Realizing that he was doomed to defeat, he tossed his dagger into the air and ran from the scene with the laughter of the onlookers ringing in his ears.

The …

The Work-Product Doctrine: Protection, Not Privilege, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Although the work-product doctrine has received considerable attention before the courts in recent years, several issues regarding the scope and applicability of the doctrine remain controversial As a prelude to explaining the state of the law on these issues, the author examines the case law through which the doctrine developed and explores the doctrine's modern application through rule 26 of the Federal Rules of Civil Procedure. He next discusses the rule's various requirements and its treatment ofparticular categories of information including opinion work product andparty statements. Finally, Professor Cohn explains how the rule's protection may be waived and discusses the …

The Federal Rules Of Evidence: Six Years After, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence have been in effect since 1975. Six years of experience is not much time in which to assess such a complex and important body of law. Nevertheless, there is now some "evidence" of the impact of the Federal Rules on the various states and circuits.

The Rules do seem to have proved successful enough to stimulate widespread imitation. Approximately half the states in the United States have or will very shortly have evidence codes patterned substantially on the Rules, even down to their numbers. Many of the remaining states (e.g., Iowa, Illinois, and Pennsylvania) have …

Federal Discovery: A Survey Of Local Rules And Practices In View Of Proposed Changes To The Federal Rules, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Traditionally, except for the limited role played by pleadings and bills of particulars, the attorney in a law court did not disclose evidentiary matters until trial. "A judicial proceeding was a battle of wits rather than a search for the truth,"' and thus, each side was protected to a large extent against disclosure of his case until counsel chose to disclose it at trial. This philosophy changed some forty years ago with the introduction of discovery in the Federal Rules of Civil Procedure. In the words of Mr. Justice Murphy, the discovery rules meant that "civil trials in the federal …

The Proposed Federal Rules Of Appellate Procedure, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

After a discussion of the history of uniform procedural rules and the authority of the Supreme Court to promulgate uniform appellate rules, Professor Cohn discusses some of the problems of expense and delay which are found in the appellate system today. In his analysis of the Proposed Uniform Rules of Federal Appellate Procedure, the author gives special emphasis to those areas where the rules constitute a departure from present practice. In addition, several changes are suggested in areas in which the author believes further improvement can be made.

The New Federal Rules Of Civil Procedure, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

The amendments to the civil rules continue a process of transition from legal formulas toward adaptation to the practicalities of the various factual situations involved. This process was commenced with the early reform movement when the strictures of common-law, form-of-action pleading were abolished and the artificial separation of law and equity was ended. It continued through the original promulgation of the Federal Rules of Civil Procedure which attempted to eliminate many of the legalistic but artificial restrictions that code practice perpetuated. The current amendments move closer to what Mr. Justice Goldberg termed "the aims of a liberal, nontechnical application" of …