Law Commons^™

The Walker Process Doctrine: Infringement Lawsuits As Antitrust Violations, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

Antitrust law's Walker Process doctrine permits a patent infringement defendant to show that an improperly maintained infringement action constitutes unlawful monopolization or an unlawful attempt to monopolize. The infringement defendant must show both that the lawsuit is improper, which establishes the conduct portion of the violation and generally satisfies tort law requirements, and also that the structural prerequisites for the monopolization offense are present. The doctrine also applies to non-patent infringement actions and has been applied by the Supreme Court to copyright infringement actions. Walker Process itself somewhat loosely derives from the Supreme Court's Noerr-Pennington line of cases holding that …

Jackpot Justice And The American Tort System: Thinking Beyond Junk Science, Tom Baker, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship at Penn Carey Law

In 2007 the Pacific Research Institute released a report, Jackpot Justice: The True Cost of America's Tort System, that is widely available on the internet. The conclusion of the report is that America's tort system costs $865.37 billion annually, amounting to an "annual price tag, or 'tort tax' for a family of four in terms of costs and foregone benefits" of $9,827. As our report will demonstrate, the conclusions of Jackpot Justice are without scientific merit and present a very misleading picture of the American tort system and its costs.

Research on the tort system's efficiency, its fairness and …

The Class Action Fairness Act Of 2005 In Historical Context: A Preliminary View, Stephen B. Burbank

Faculty Scholarship at Penn Carey Law

As courts confront, and commentators begin to write about, the many jurisdictional questions that emerged from CAFA’s long and messy legislative process, I propose instead to set that legislation in context. The contexts that, given my training and interests, I find most revealing concern the history of federal diversity of citizenship litigation in general and, within that larger story, the history of diversity class actions in federal court. Because all questions of federal court subject matter jurisdiction implicate the "happy relations of States to Nation," both accounts necessarily pay attention to state court litigation and to the impact of doctrinal …

The Complexity Of Modern American Civil Litigation: Curse Or Cure?, Stephen B. Burbank

Faculty Scholarship at Penn Carey Law

Originally prepared for the 2007 meetings of the Italian Association of Comparative Law, this paper seeks to excavate the roots of procedural complexity in modern American litigation. Proceeding from the view that there is no accepted definition of complex litigation in the United States, the paper discusses five related phenomena that the author regards as consequential: (1) the architecture of modern American lawsuits and the procedural philosophy that architecture reflects, (2) the volume of litigation and the public and private policies, attitudes and arrangements that affect it, (3) the dynamic nature of, and dispersed institutional responsibility for, American law, (4) …

Commentary On Class Settlements Under Attack, Catherine T. Struve

Faculty Scholarship at Penn Carey Law

No abstract provided.

Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker

Faculty Scholarship at Penn Carey Law

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck occurs in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the …

Federal Jurisdiction And Due Process In The Era Of The Nationwide Class Action, Tobias Barrington Wolff

Faculty Scholarship at Penn Carey Law

The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system. The dynamics of the class action lie at the heart of current debates over the nature of the litigation process and the limits of adjudication in effectuating social policy. Choice of law analysis has enjoyed a renaissance as its significance to the question of class certification has become apparent. Class litigation now frequently drives debates over tort reform and the phenomenon of regulation through litigation. In these and many …

On Beyond Calpers: Survey Evidence On The Developing Role Of Public Pension Funds In Corporate Governance, Stephen Choi, Jill E. Fisch

Faculty Scholarship at Penn Carey Law

No abstract provided.

Greater And Lesser Powers Of Tort Reform: The Primary Jurisdiction Doctrine And State-Law Claims Concerning Fda-Approved Products, Catherine T. Struve

Faculty Scholarship at Penn Carey Law

No abstract provided.