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Series

Litigation

2002

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Articles 1 - 30 of 56

Full-Text Articles in Law

Litigation Realities, Kevin M. Clermont, Theodore Eisenberg Nov 2002

Litigation Realities, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

After both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the authors draw a series of lessons for understanding and using empirical methods in the study of the legal system's operation. In so doing, they generate implications for current and projected policy debates concerning litigation, while identifying areas that demand further empirical work.


Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr. Oct 2002

Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.

Faculty Publications

Critics of medical malpractice litigation believe that expert testimony is often anecdotal and biased. To remedy this problem, several have recently suggested that attorneys should provide and courts should seek reliable empirical evidence of actual clinical norms. Their suggestion should be welcomed. If our expectations are realistic and the design pitfalls are avoided, greater use of use of empirical research will improve the fairness of malpractice adjudication. At least in theory, it could be useful in both the "easy" cases (where it reveals that a consensus standard of care exists) and also some of the harder cases (where clinical practices ...


Misclassifying Monetary Restitution, Colleen P. Murphy Oct 2002

Misclassifying Monetary Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.


Educational Jujitsu: How School Finance Lawyers Learned To Turn Standards And Accountability Into Dollars, Michael Heise Oct 2002

Educational Jujitsu: How School Finance Lawyers Learned To Turn Standards And Accountability Into Dollars, Michael Heise

Cornell Law Faculty Publications

No abstract provided.


Tailored Police Testimony At Suppression Hearings, Joel Atlas Oct 2002

Tailored Police Testimony At Suppression Hearings, Joel Atlas

Cornell Law Faculty Publications

Whether a court must suppress evidence typically turns on the conduct or observations of the police officer who discovered the evidence. By falsely testifying to the facts surrounding the discovery of the evidence, a police officer may validate a blatantly unconstitutional search. New York courts have long recognized that police officers sometimes fabricate suppression testimony to meet constitutional restrictions. Indeed, the Appellate Division has rejected police testimony at suppression hearings where the officer’s testimony appears to have been “patently tailored to nullify constitutional objections.” Although, to be sure, rejections are rare and their number appears to be declining, the ...


Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Aug 2002

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.


The Courts, Educational Policy, And Unintended Consequences, Michael Heise Jul 2002

The Courts, Educational Policy, And Unintended Consequences, Michael Heise

Cornell Law Faculty Publications

Recent school finance litigation illustrates yet again how law can generate unintended policy consequences. Seeking to improve student achievement and school accountability, more states now turn to educational standards and assessments. At the same time, a multi-decade school finance litigation effort develops and changes its theoretical base. Recently, educational standards and school finance litigation converged in a way that enables school districts to gain financially from their inability to meet desired achievement levels. Specifically, courts increasingly allow litigants and lawsuits to transform standards and assessments into constitutional entitlements to additional resources. As a consequence, increased legal and financial exposure for ...


Product Liability In The United States Supreme Court: A Venture In Memory Of Gary Schwartz., Anita Bernstein Jul 2002

Product Liability In The United States Supreme Court: A Venture In Memory Of Gary Schwartz., Anita Bernstein

Faculty Scholarship

No abstract provided.


Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, James A. Henderson Jr., Aaron Twerski Jul 2002

Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.


You Can’T Tear It Down: The Origins Of The D.C. Historic Preservation Act, Jeremy W. Dutra May 2002

You Can’T Tear It Down: The Origins Of The D.C. Historic Preservation Act, Jeremy W. Dutra

Georgetown Law Historic Preservation Papers Series

No abstract provided.


Ethics Of Enterprise Liability In Product Design And Marketing Litigation, James A. Henderson Jr. May 2002

Ethics Of Enterprise Liability In Product Design And Marketing Litigation, James A. Henderson Jr.

Cornell Law Faculty Publications

American courts talk as though they are imposing strict enterprise liability on product manufacturers, but in truth they do so only with respect to manufacturing defects. In product design and marketing litigation, manufacturers' liability is based on fault. The reason why strict liability is inappropriate for the generic product hazards associated with design and marketing is that, in sharp contrast to manufacturing defects, the conditions necessary for insurance to function are not satisfied. Users and consumers control generic product risks to a sufficiently great extent that any insurance scheme based on strict enterprise liability would be destroyed by combinations of ...


Shared Norms, Bad Lawyers, And The Virtues Of Casuistry, Paul R. Tremblay Apr 2002

Shared Norms, Bad Lawyers, And The Virtues Of Casuistry, Paul R. Tremblay

Boston College Law School Faculty Papers

No abstract provided.


Studying Labor Law And Human Resources In Rhode Island, Stewart J. Schwab Apr 2002

Studying Labor Law And Human Resources In Rhode Island, Stewart J. Schwab

Cornell Law Faculty Publications

Our task today is to celebrate, inaugurate, and educate. Lawyers demanded the education part of the talk because they love double counting whenever possible. The lawyers in our audience get Continuing Legal Education credits for attending. That's just one illustration of how to think like a lawyer--kill as many birds with as few stones as possible.

Lawyers are often accused of talking in an arcane language that no one else can understand. Labor-relations people are sometimes thought to be either pie-in-the-sky optimists or Marxist-inspired anarchists. Human-relations professionals are sometimes said to be hypocrites giving a fake smile to employees ...


The Preparatory Commission For The International Criminal Court, Valerie Oosterveld Mar 2002

The Preparatory Commission For The International Criminal Court, Valerie Oosterveld

Law Publications

As it becomes increasingly clear that the International Criminal Court will be set up in the near future, it is important to reflect on the work of the Preparatory Commission for the International Criminal Court. When the Rome Statute was being negotiated, it became very clear that additional documents would be necessary in order to create a fully functioning ICC. At the time, eight such documents were identified and included in Resolution F of the Final Act of the Rome Diplomatic conference. As work on these documents nears completion, States have begun to consider the practicalities of setting up the ...


Juries, Judges, And Punitive Damages: An Empirical Study, Theodore Eisenberg, Neil Lafountain, Brian Ostrom, David Rottman, Martin T. Wells Mar 2002

Juries, Judges, And Punitive Damages: An Empirical Study, Theodore Eisenberg, Neil Lafountain, Brian Ostrom, David Rottman, Martin T. Wells

Cornell Law Faculty Publications

This Article, the first broad-based analysis of punitive damages in judge-tried cases, compares judge and jury performance in awarding punitive damages and in setting their levels. Data covering one year of judge and jury trial outcomes from forty-five of the nation's largest counties yield no substantial evidence that judges and juries differ in the rate at which they award punitive damages or in the central relation between the size of punitive awards and compensatory awards. The relation between punitive and compensatory awards in jury trials is strikingly similar to the relation in judge trials. For a given level of ...


Antitrust, Health Care Quality, And The Courts, Peter J. Hammer, William M. Sage Jan 2002

Antitrust, Health Care Quality, And The Courts, Peter J. Hammer, William M. Sage

Law Faculty Research Publications

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports the results of a comprehensive empirical review of judicial opinions in health care ...


Joseph Henry Lumpkin Inn Of Court Team Members 2002-2003, Kellie Casey Monk Jan 2002

Joseph Henry Lumpkin Inn Of Court Team Members 2002-2003, Kellie Casey Monk

Materials from All Student Organizations

No abstract provided.


Procedural Justice Research And The Paucity Of Trials, Chris Guthrie Jan 2002

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the ...


Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz Jan 2002

Rediscovering Discovery: State Procedural Rules And The Level Playing Field, Seymour Moskowitz

Law Faculty Publications

In the modern era of few trials, the pretrial process is critical to the disposition of most cases. Discovery has been a fiercely debated subject for may years. Many commentators believe that discovery has become too expensive, very time consuming, and often abusive. Others disagree, and articulate an entirely different diagnosis of the problems in our civil justice system. Regardless, the scope of discovery, and the process for undertaking it, create predictable advantages and disadvantages for many types of litigants. Although state courts dispose of the vast majority of cases in the United States, academic writings on procedural matters, particularly ...


Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John M. Lande Jan 2002

Using Dispute System Design Methods To Promote Good-Faith Participation In Court-Connected Mediation Programs, John M. Lande

Faculty Publications

This article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining important interests of key stakeholder groups, including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their ...


Bankruptcy Electronic Case Filing Workshop, Office Of Continuing Legal Education At The University Of Kentucky College Of Law Jan 2002

Bankruptcy Electronic Case Filing Workshop, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the Bankruptcy Electronic Case Filing Workshop (C.M./E.C.F.: Case Management/Electronic Case Filing) held by UK/CLE in 2002.


The Roles Of Litigation, Stephen B. Burbank Jan 2002

The Roles Of Litigation, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Don't Believe Everything You Think: Cognitive Bias In Legal Decision Making, Ian Weinstein Jan 2002

Don't Believe Everything You Think: Cognitive Bias In Legal Decision Making, Ian Weinstein

Faculty Scholarship

This article discusses the role of cognitive bias in legal decision making. Drawing on research in cognitive science and law, it explores the impact of cognitive bias on both lawyers and clients. These often subtle mental biases can lead to pervasive errors in decision making by causing us to ignore important information and make inaccurate predictions. They may lead a client to underestimate the risk of litigation. They may also lead a lawyer to miscategorize a client's value choice as a misjudgement of fact. The article offers illustrative stories of the impact of bias on both client and lawyer ...


Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank Jan 2002

Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Lawyers And Decisions: A Model Of Practical Judgment, Alexander W. Scherr Jan 2002

Lawyers And Decisions: A Model Of Practical Judgment, Alexander W. Scherr

Scholarly Works

What do lawyers do, and how do they think in practice? Certainly, lawyers analyze law, and apply it to facts: the law school answer. This article proposes a more fluid notion: that lawyering prompts a mindfulness associated with decision-making, a mindfulness that engages and integrates a number of different capacities. Lawyers engage in a complex and unique thought process that relies only partially on rigorous analysis of legal principle. Lawyers must also integrate non-legal and even non-conceptual realities in considering client decisions. This integration emerges from the lawyer-client relationship and flexes to the demands characteristic of lawyering tasks. Lawyering is ...


New Issues Arising Under Section 1983, Martin A. Schwartz Jan 2002

New Issues Arising Under Section 1983, Martin A. Schwartz

Scholarly Works

No abstract provided.


Civil Litigation From Litigants' Perspectives: What We Know And What We Don't Know About The Litigation Experience Of Individual Litigants, Tamara Relis Jan 2002

Civil Litigation From Litigants' Perspectives: What We Know And What We Don't Know About The Litigation Experience Of Individual Litigants, Tamara Relis

Scholarly Works

This study of the entire phenomenon of civil litigation commenced with the sole aim of ascertaining the extant gaps in the available knowledge about litigation from the perspectives of those who are by far affected most by it: the litigants. What does litigation mean for those who are directly embroiled and whose lives may consequently be radically transformed? Serious lacunas exist. However, extensive readings worldwide throughout the research process result in a stark elucidation of an overlooked, yet crucially important and somewhat egregious state of affairs, making surprisingly clear just how pernicious litigation is for the average 'nonrepeat player'.


Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton Jan 2002

Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton

Faculty Publications By Year

The free public services doctrine (also known as the municipal cost recovery rule) states that a government entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrongdoing. This article traces the history of the doctrine and argues for its elimination. The article criticizes case law supporting the doctrine and raises objections based on fairness, efficiency, and institutional concerns about the proper limits of judicial policy making. The article discusses the implications of eliminating the doctrine for tobacco litigation, gun litigation, and tort reform.


Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch Jan 2002

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

Faculty Scholarship at Penn Law

The lead counsel auction has attracted increasing attention. Auction advocates mgue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is ...


'Can We Go Home Now?' Expediting Adoption And Termination Of Parental Rights Appeals In Ohio State Courts, Susan Wawrose Jan 2002

'Can We Go Home Now?' Expediting Adoption And Termination Of Parental Rights Appeals In Ohio State Courts, Susan Wawrose

School of Law Faculty Publications

Two years ago, the Ohio Supreme Court amended its rules and those of Ohio's intermediate appellate courts in order to fast-track appeals of cases involving termination of parental rights ("TPR") and adoption of minor children. Three of Ohio's twelve appellate districts already had local rules to expedite or accelerate these types of appeals, but in some districts, the amended rules established procedures that were entirely new.

The major impetus behind the court's amendments to the rules was to move children out of foster care and into permanent adoptive homes more quickly. Further, by amending the rules of ...