Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Litigation

2013

Institution
Keyword
Publication

Articles 1 - 30 of 88

Full-Text Articles in Law

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp Dec 2013

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – whether ...


Union Made: Labor’S Litigation For Social Change, Charlotte Garden Dec 2013

Union Made: Labor’S Litigation For Social Change, Charlotte Garden

Faculty Scholarship

Unions are key repeat players before the Supreme Court. Their involvement extends beyond what one might expect (labor) and extends to key cases involving federalism, discrimination, affirmative action, the First Amendment, and workplace health and safety, among others. Though scholars have written about how other union activity, like collective bargaining, impacts non-union workers, the role and impact of union participation in non-labor litigation has largely been ignored in the public debate over unions in America and in the academic literature about what unions do. This article focuses on unions’ Supreme Court litigation that arises outside of the context of traditional ...


Judgment Day For Fraud-On-The-Market?: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort Nov 2013

Judgment Day For Fraud-On-The-Market?: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

In November 2013, the Supreme Court granted certiorari in the Halliburton litigation to reconsider, and perhaps overrule, its seminal decision in Basic Inc. v. Levinson. Basic legitimated the fraud-on-the-market presumption of reliance, making securities class actions for claims of false corporate publicity viable, and such cases have become the central mechanisms for private securities fraud litigation. This move came after last Term’s Amgen decision, where four justices signaled their doubts about Basic. This essay looks at the connection between Amgen and the continuing viability of fraud-on-the-market litigation. How Halliburton comes out will likely depend on how the Court views ...


Injunctions In Sovereign Debt Litigation, Mark C. Weidemaier, Anna Gelpern Nov 2013

Injunctions In Sovereign Debt Litigation, Mark C. Weidemaier, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Injunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. We argue that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money judgments and injunctions are enforced through what amounts to a court-imposed embargo. This embargo discourages third parties from dealing with the sovereign and, if sufficiently costly, can induce the sovereign to comply. Nevertheless, we are skeptical about injunctions in sovereign debt litigation. They are prone ...


Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King Nov 2013

Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King

Georgetown Law Faculty Publications and Other Works

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.

Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on ...


Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel Nov 2013

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Cornell Law Faculty Publications

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should ...


Resource Movement And The Legal System, Herbert J. Hovenkamp Oct 2013

Resource Movement And The Legal System, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In "The Problem of Social Cost" Ronald Coase considered several common law disputes among neighbors whose economic activities conflicted with one another. For example, Sturges v. Bridgman was a nineteenth century nuisance case involving a pediatrician whose practice was hindered by his neighbor, a confectioner whose operation required a noisy mechanical mortar & pestle. Coase showed that if high transaction costs did not interfere, private bargaining would provide a solution which he characterized as efficient -- namely, that the right to continue would be given to the person who valued it most. For example, if the pediatrician valued the right to relative ...


Joe M Stell Ombudsman Program - Taos Settlement Technical Work, Peggy Barroll Oct 2013

Joe M Stell Ombudsman Program - Taos Settlement Technical Work, Peggy Barroll

Publications

No abstract provided.


On Monday's Argument In Al-Bahlul, Peter Margulies Oct 2013

On Monday's Argument In Al-Bahlul, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer Oct 2013

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

Faculty Scholarship at Penn Law

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of ...


Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2013

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”

This article is an effort to help ...


Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section Sep 2013

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

  • Oil and Gas Leases
  • Surface Use Agreements (SUAs)
  • Government’s Role in Authorizing Locations for Oil and Gas Development
  • Technical Aspects of Nontributary and Produced Nontributary Ground Water
  • Produced ...


Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman Sep 2013

Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman

U.S. Supreme Court Briefs

These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented to authorize a federal magistrate judge to enter a final judgment in the action as permitted by 28 U.S.C. 636(c).When a magistrate judge enters a final judgment under section 636(c), the judgment is appealable directly to the court of appeals. No Article III district judge has any decision making role.

In the lower court in Day, the magistrate judge approved the class-action settlement, and the objector appealed directly to the Eleventh Circuit. At that point, my client—the National Association of Consumer Advocates (NACA)—entered the picture as an amicus. NACA argued (in order of breadth) that (1) 28 U.S.C. 636(c) is unconstitutional because consent is an insufficient basis to override the general constitutional requirement that only an Article III judge (and not a non-life-tenured magistrate judge) may enter a final federal-court judgment; (2) even if the parties’ consent to a magistrate judge ordinarily would suffice to make 28 U.S.C. 636(c) constitutional, the named parties’ consent in a class action is not constitutionally sufficient to bind absent class members because, as the class-action device ordinarily operates, absent class members lack the ability to provide the knowing and ...


Groundwater Challenges In Spain: Lessons From The Western Mancha Aquifer, Pedro Martinez-Santos Sep 2013

Groundwater Challenges In Spain: Lessons From The Western Mancha Aquifer, Pedro Martinez-Santos

Publications

No abstract provided.


When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi Aug 2013

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their ...


The Fixable Flaws Of America's Civil Justice System, James Maxeiner Jun 2013

The Fixable Flaws Of America's Civil Justice System, James Maxeiner

All Faculty Scholarship

No abstract provided.


Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim Jun 2013

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Faculty Scholarship

No abstract provided.


Toward A Regulatory Framework For Third-Party Funding Of Litigation, Keith Hylton Jun 2013

Toward A Regulatory Framework For Third-Party Funding Of Litigation, Keith Hylton

Faculty Scholarship

Because third-party funding and sales of legal rights are equivalent in terms of their economics, I examine arrangements in which third-party sales of legal rights are permitted today – waiver, subrogation, and settlement agreements. The existing arrangements provide valuable lessons for the appropriate regulatory approach to third-party financing of litigation.


Innovation And Competition Policy, Ch. 3 (2nd Ed.): Harm To Competition Or Innovation, Herbert J. Hovenkamp Apr 2013

Innovation And Competition Policy, Ch. 3 (2nd Ed.): Harm To Competition Or Innovation, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman Apr 2013

Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman

Scholarly Articles

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome ...


Some Important Causes For Settlement In American Civil Litigation, Felipe Forte Cobo Apr 2013

Some Important Causes For Settlement In American Civil Litigation, Felipe Forte Cobo

LLM Theses and Essays

This paper focuses on pure economic disputes such as contract, real property and tort conflicts, in which the economic efficiency model is very accepted. In this limited scenario, the consensual resolution of disputes is always more efficient than decisions made by a third-party decision-maker, whether from a post-trial or pre-trial perspective.

Considering that lower transaction costs drive parties towards settlement, part II of this essay provides an overview of the American costs of legal disputes, framing several issues that might be determinative to settlements. Part III explores how two specific American procedural institutes – discovery and civil jury trial – contribute to ...


Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer Mar 2013

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Faculty Publications

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class. " Although this "commonality" requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23 's commonality requirement unsupported by the text of the ...


How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski Mar 2013

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias ...


Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp Feb 2013

Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of ...


Symposium: Child Witness In Sexual Abuse Cases, Roger Williams University School Of Law Feb 2013

Symposium: Child Witness In Sexual Abuse Cases, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Copyright Infringement Markets, Shyamkrishna Balganesh Feb 2013

Copyright Infringement Markets, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement — that copyright law simultaneously grants authors in order to render its exclusive rights operational — has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely ever consider the possibility of an acquisition or investment market emerging for actionable copyright claims, and the advantages that such a market might hold for copyright’s goals ...


(Still) A "Real And Substantial" Mess: The Law Of Jurisdiction In Canada, Tanya Monestier Feb 2013

(Still) A "Real And Substantial" Mess: The Law Of Jurisdiction In Canada, Tanya Monestier

Law Faculty Scholarship

No abstract provided.


Ohio Oil And Gas Litigation In The New Fracking Era, Blake Watson Jan 2013

Ohio Oil And Gas Litigation In The New Fracking Era, Blake Watson

School of Law Faculty Publications

There is a new era of oil and gas exploration in Ohio: the horizontal “fracking” era. Although the hydraulic fracturing process has been utilized for decades, the recent development of horizontal drilling methods has enabled companies to extract oil and gas from the Marcellus and Utica deep shale formations. Horizontal hydraulic fracturing has substantially changed oil and gas drilling in eastern Ohio, as evident by the following statements taken from a complaint filed by landowners in Columbiana County:

From 2008 through 2010, few Columbiana County landowners understood the significance of the Utica shale play. ... [M]any landowners enter[ed] into ...


The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin Jan 2013

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Faculty Scholarship

Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a ...


Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong Jan 2013

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care ...