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Full-Text Articles in Law

Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French Jan 2020

Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French

Journal Articles

The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been ...


Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet Feb 2019

Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet

Journal Articles

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the ...


"Innocence" And The Guilty Mind, Stephen F. Smith Jan 2018

"Innocence" And The Guilty Mind, Stephen F. Smith

Journal Articles

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, the goal being to define the mental element in terms that will protect offenders from conviction unless they had adequate notice of the wrongfulness of their conduct. The Supreme Court’s recent decision in Elonis v. United States signals a significant shift in mens readoctrine, recognizing for the first time the potential for disproportionately severe punishment as a justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive ...


The Golden Ratio Of Corporate Deal-Making, Christina M. Sautter Jul 2016

The Golden Ratio Of Corporate Deal-Making, Christina M. Sautter

Journal Articles

The article discusses the Delaware Supreme Court's decision in the case 'Revlon, Inc. v. MacAndrews & Forbes Holdings Inc.' in which the court sale of corporate control, the target's board of directors has a duty to maximize stockholder value. Topics discussed include relationship between the deal protection devices and sale process; golden ratio of corporate deal-making; and the court's definition of an ideal merger and acquisition of a sale process.


Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French Jun 2016

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Journal Articles

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will ...


The Litigation Budget, Jay Tidmarsh May 2015

The Litigation Budget, Jay Tidmarsh

Journal Articles

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly ...


Resurrecting Trial By Statistics, Jay Tidmarsh Apr 2015

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a ...


The Role Of The Profit Imperative In Risk Management, Christopher French Jan 2015

The Role Of The Profit Imperative In Risk Management, Christopher French

Journal Articles

Risks in the world abound. Every day there is a chance that each of us could be in a car accident. Or, one of us could be the victim of a tornado, flood or earthquake. Every day someone becomes deathly ill from an insidious disease. Our properties are in constant peril—one’s house could catch fire at any time or a tree could fall on it during a storm. Any one of these events could have devastating financial consequences, and they are just a few of the many risks that impact our daily lives. One of the principal ways ...


The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey Oct 2014

The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey

Journal Articles

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It ...


Cy Pres And The Optimal Class Action, Jay Tidmarsh Jan 2014

Cy Pres And The Optimal Class Action, Jay Tidmarsh

Journal Articles

This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the ...


The Future Of Human Rights Litigation After Kiobel, Roger P. Alford Jan 2014

The Future Of Human Rights Litigation After Kiobel, Roger P. Alford

Journal Articles

This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. As others have argued in this issue, that premise may not be correct. Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.


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 Jan 2013

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

Journal Articles

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 ...


When Bad Guys Are Wearing White Hats, Catherine A. Rogers Jan 2013

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Journal Articles

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel ...


Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown Jan 2013

Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown

Journal Articles

No abstract provided.


'May It Please The Court?': A Short Story, Angela Mae Kupenda Jan 2013

'May It Please The Court?': A Short Story, Angela Mae Kupenda

Journal Articles

This story tells a fictional account of a black woman lawyer who is about to try the biggest case of her life. While many black women lawyers seek to express their individuality and bring the best of themselves into their work and lives, conventions and norms about race and gender force them to give huge attention to things that likely matter little in the long run. In this story, we go on a journey of self-discovery with the protagonist, Angel, in hopes that she will be able to please the court in this—her trial of a lifetime.


Superiority As Unity, Jay Tidmarsh Jan 2013

Superiority As Unity, Jay Tidmarsh

Journal Articles

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they ...


Living In Cafa's World, Jay Tidmarsh Jan 2013

Living In Cafa's World, Jay Tidmarsh

Journal Articles

This Article, prepared for a conference on the Class Action Fairness Act, examines the effect of CAFA on our understanding about the benefits and drawbacks of class actions. The Article describes the vision of class actions that imbues CAFA, and demonstrates how many subsequent developments in the law of class actions — including the Supreme Court’s decisions in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Shady Grove Orthopedics v. Allstate Insurance — have advanced CAFA’s restrictive vision about the role of class actions in modern American litigation. The Article demonstrates that competing visions about the role of class ...


The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French Jan 2012

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Journal Articles

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for ...


Like Moths To A Flame - International Securities Litigation After Morrison: Correcting The Supreme Court's Transactional Test, Marco Ventoruzzo Jan 2012

Like Moths To A Flame - International Securities Litigation After Morrison: Correcting The Supreme Court's Transactional Test, Marco Ventoruzzo

Journal Articles

Because of the broad jurisdiction American courts have asserted in cases arising under the Securities Exchange Act of 1934, they have been called a Shangri-la for “foreign-cubed” class actions with little connection to the United States. Over the past forty years, the standards used by American courts to determine their jurisdiction in international securities disputes have evolved, culminating in the U.S. Supreme Court’s Morrison decision of 2010. The new transactional test promulgated in Morrison replaced all of its predecessor tests, from a test measuring whether the conduct in question took place in the United States to a test ...


The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French Jan 2011

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Journal Articles

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument ...


Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis Jan 2011

Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis

Journal Articles

No abstract provided.


Strategic Spillovers, Daniel B. Kelly Jan 2011

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This ...


Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson Jan 2011

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Journal Articles

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify ...


Exiting Litigation, Jay Tidmarsh Jan 2010

Exiting Litigation, Jay Tidmarsh

Journal Articles

The American judicial system will face significant challenges in the twenty-first century. One of its immediate challenges is adapting the rules of civil procedure to the stresses under which the civil-justice system operates. Some of the most notable pressures arise from transnational litigation, mass litigation, proliferation of claims against governmental and corporate institutions, and competition from methods of alternative dispute resolution that promise to dispense cheaper, faster, and more satisfying justice.


Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis Jan 2008

Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis

Journal Articles

No abstract provided.


A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner Dec 2004

A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner

Journal Articles

No abstract provided.


Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram Jan 2004

Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram

Journal Articles

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of compatibility, a key ...


What Is The Time Limit For Filing A Lawsuit? It Depends On What Your Definition Of "Arising Under" Is! An Analysis Of Jones V. R.R. Donnelley & Sons Co., Barbara J. Fick Jan 2004

What Is The Time Limit For Filing A Lawsuit? It Depends On What Your Definition Of "Arising Under" Is! An Analysis Of Jones V. R.R. Donnelley & Sons Co., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Jones et. al. v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). The author predicted that the case would require the court to determine the appropriate statute of limitations to apply in a class action race-discrimination lawsuit filed under 42 U.S.C. § 1981.


Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel Jan 2004

Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel

Journal Articles

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 ...


Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick Jan 2003

Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.