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Series

Litigation

2010

Institution
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Articles 1 - 30 of 92

Full-Text Articles in Law

Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp Dec 2010

Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision overturned the longstanding rule of per se illegality for resale price maintenance and applied a rule of reason. One might think that the question whether a vertical “agreement” exists between a manufacturer and a dealer should not be affected by the mode of analysis to be applied after an agreement is found. First one asks whether an agreement exists, and determines whether the per se rule or rule of reason applies only after receiving an affirmative answer. Nevertheless, ever since Colgate the Supreme Court has generally taken a more restrictive approach on the agreement ...


Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp Dec 2010

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek ...


Resolving The Dilemma Of Non-Justiciable Causation In Failure To Warn Litigation, Aaron D. Twerski, Neil B. Cohen Nov 2010

Resolving The Dilemma Of Non-Justiciable Causation In Failure To Warn Litigation, Aaron D. Twerski, Neil B. Cohen

Faculty Scholarship

No abstract provided.


Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler Oct 2010

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Scholarly Publications

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side and influencing the types of legal reform those coalitions are able to pursue.

A series of state ...


Civil Judicial Subsidy, The, Brendan Maher Oct 2010

Civil Judicial Subsidy, The, Brendan Maher

Faculty Articles and Papers

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants? I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these ...


The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise Oct 2010

The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise

Cornell Law Faculty Publications

Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and retaliation cases. The decision prompted an outcry from the plaintiffs' bar and Congress has proposed legislation to overturn Gross. Despite the outcry, a simple question persists: Does the motivating factor jury instruction influence case outcomes? Results from our experimental mock jury study suggest that such jury instructions ...


The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells Oct 2010

The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells

Cornell Law Faculty Publications

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were ...


Reinventing The Eeoc, Nancy M. Modesitt Oct 2010

Reinventing The Eeoc, Nancy M. Modesitt

All Faculty Scholarship

The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes ...


Reaching Equilibrium In Tobacco Litigation, Aaron D. Twerski, James A. Henderson, Jr. Oct 2010

Reaching Equilibrium In Tobacco Litigation, Aaron D. Twerski, James A. Henderson, Jr.

Faculty Scholarship

No abstract provided.


Taxing Punitive Damages, Gregg D. Polsky, Dan Markel Sep 2010

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our ...


Lawyers Acting Badly, Or Not? Misconduct In Ip Litigation: Recent Examples And The Questions They Raise, Lisa Dolak Jun 2010

Lawyers Acting Badly, Or Not? Misconduct In Ip Litigation: Recent Examples And The Questions They Raise, Lisa Dolak

College of Law - Faculty Scholarship

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity. however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Trial and appellate judges in a number of recent IP cases have wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse. For example, trial judges have recently rebuked ...


Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller Jun 2010

Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither ...


Taxing Structured Settlements, Gregg D. Polsky, Brant J. Hellwig May 2010

Taxing Structured Settlements, Gregg D. Polsky, Brant J. Hellwig

Scholarly Works

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt from the tax the investment yield imbedded within the structured settlement. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. While the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs’ lawyers and non-physically injured tort plaintiffs under general, common-law tax principles ...


Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch May 2010

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

Scholarly Works

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing line ...


Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron May 2010

Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron

Faculty Scholarship

No abstract provided.


Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore Apr 2010

Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore

Law Student Publications

The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading ...


The Fallacy Of Neutrality From Beginning To End: The Battle Between Religious Liberties And Rights Based On Homosexual Conduct, Rena M. Lindevaldsen Apr 2010

The Fallacy Of Neutrality From Beginning To End: The Battle Between Religious Liberties And Rights Based On Homosexual Conduct, Rena M. Lindevaldsen

Faculty Publications and Presentations

The Bible plainly states that everyone must either "bring every thought into captivity to the obedience of Christ" or continue as "enemies in your mind." Un-Biblical thinking, like un-Bibical actions, leads one on a path away from God. Part II of this Article will briefly introduce a Biblical approach to thinking about contemporary issues and discuss how Christians can unwittingly abandon distinctively Biblical thinking under the guise of neutrality. Part III will present a number of cases that highlight the fallacy of neutrality in the battle between religious liberties and rights based on homosexual conduct. Part IV will contend that ...


Water Law In The Western United States, Susan Kelly Apr 2010

Water Law In The Western United States, Susan Kelly

Publications

No abstract provided.


Some Municipal Programs To Develop And/Or Sustain Living Rivers In New Mexico, Claudia Borchert Mar 2010

Some Municipal Programs To Develop And/Or Sustain Living Rivers In New Mexico, Claudia Borchert

Publications

No abstract provided.


Environmental Flow Issues & Science, Tom Annear Mar 2010

Environmental Flow Issues & Science, Tom Annear

Publications

No abstract provided.


Colorado's Instream Flow Program: History And Current Activities, The Colorado Water Conservation Board Mar 2010

Colorado's Instream Flow Program: History And Current Activities, The Colorado Water Conservation Board

Publications

No abstract provided.


Climate Change, Streamflows, And Water Management Implications In The Upper Rio Grande Watershed, Brian H. Hurd Mar 2010

Climate Change, Streamflows, And Water Management Implications In The Upper Rio Grande Watershed, Brian H. Hurd

Publications

No abstract provided.


Status Of New Mexico's Rivers - Existing Data Panel, Stephanie Carman, James Hogan Mar 2010

Status Of New Mexico's Rivers - Existing Data Panel, Stephanie Carman, James Hogan

Publications

No abstract provided.


Environmental Flows In Elephant Butte Irrigation District, Gary Esslinger Mar 2010

Environmental Flows In Elephant Butte Irrigation District, Gary Esslinger

Publications

No abstract provided.


Geomorphic Condition And Shallow Aquifers, Shann Stringer Mar 2010

Geomorphic Condition And Shallow Aquifers, Shann Stringer

Publications

No abstract provided.


Environmental Flows Allocation Process In Texas, Kevin Mayes Mar 2010

Environmental Flows Allocation Process In Texas, Kevin Mayes

Publications

No abstract provided.


Riparian Area And Upper Watershed Condition, Mary Steuver Mar 2010

Riparian Area And Upper Watershed Condition, Mary Steuver

Publications

No abstract provided.


The E-Flow Challenge In An Acequia Irrigation System With Storage - Environmental Flow Workshop, Harold Trujillo Mar 2010

The E-Flow Challenge In An Acequia Irrigation System With Storage - Environmental Flow Workshop, Harold Trujillo

Publications

No abstract provided.


Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise Mar 2010

Why Adr Programs Aren’T More Appealing: An Empirical Perspective, Michael Heise

Cornell Law Faculty Publications

Standard law and economic theory suggests that litigating parties seeking to maximize welfare will participate in alternative dispute resolution (ADR) programs if they generate a surplus. ADR programs claim to generate social surplus partly through promoting settlements and reducing case disposition time. Although most associate ADR programs with trial courts, a relatively recent trend involves appellate court use of ADR programs. The emergence of court-annexed ADR programs raises a question. Specifically, if ADR programs achieve their goals of promoting settlements and reducing disposition time, why do some courts find it necessary to impose ADR participation? Attention to ADR’s ability ...


The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg Feb 2010

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Cornell Law Faculty Publications

Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice ...