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Litigation

2014

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Articles 1 - 30 of 91

Full-Text Articles in Law

Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies Dec 2014

Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex ...


Reflections On The Korean Jury Trial, Valerie P. Hans Dec 2014

Reflections On The Korean Jury Trial, Valerie P. Hans

Cornell Law Faculty Publications

Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of ...


Where Is Home Depot "At Home"?: Daimler V. Bauman And The End Of Doing Business Jurisdiction, Tanya Monestier Dec 2014

Where Is Home Depot "At Home"?: Daimler V. Bauman And The End Of Doing Business Jurisdiction, Tanya Monestier

Law Faculty Scholarship

No abstract provided.


Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman Dec 2014

Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman

Articles

For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and ...


Federal Civil Rights Litigation Pursuant To 42 U.S.C. §1983 As A Correlate Of Police Misconduct, Philip M. Stinson, Steven L. Brewer Jr, Theresa M. Lanese, Mallorie A. Wilson Nov 2014

Federal Civil Rights Litigation Pursuant To 42 U.S.C. §1983 As A Correlate Of Police Misconduct, Philip M. Stinson, Steven L. Brewer Jr, Theresa M. Lanese, Mallorie A. Wilson

Criminal Justice Faculty Publications

Police officers acting in their official capacity are subject to being sued in federal court pursuant to 42 U.S.C. §1983 for violating constitutional rights under the color of law. Using data obtained in a larger study on police crime in the United States, names of more than 5,500 nonfederal sworn law enforcement officers who were arrested during the years 2005-2011 were checked against the civil case party master name index of the federal courts’ Public Access to Courts Electronic Records (PACER) system. Findings indicate that more than 20% of the police officers who were arrested for committing ...


Resolving Competition Related Disputes Under The Aml: Theory & Practice, Susan Beth Farmer Nov 2014

Resolving Competition Related Disputes Under The Aml: Theory & Practice, Susan Beth Farmer

Presentations

This presentation was given at the European China Law Studies 2014 Conference, Making, Enforcing and Accessing the Law, in Hong Kong. The presentation addresses the Chinese Anti-Monopoly Law (AML), the MOFCOMM, NDRC, and SAIC, and litigation before the Supreme People's Court.


11th Circuit Court Of Appeals: Cambridge Univ. Press V. Patton, Opinion (2014), 11th Circuit Court Of Appeals Oct 2014

11th Circuit Court Of Appeals: Cambridge Univ. Press V. Patton, Opinion (2014), 11th Circuit Court Of Appeals

Georgia State University Copyright Lawsuit

No abstract provided.


Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande Oct 2014

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2014

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


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 ...


Ross Et Al. V. American Express Et Al.: The Story Behind The Spread Of Class Action-Barring Arbitration Clauses In Credit Card Agreements, Nancy A. Welsh, Stephen J. Ware Oct 2014

Ross Et Al. V. American Express Et Al.: The Story Behind The Spread Of Class Action-Barring Arbitration Clauses In Credit Card Agreements, Nancy A. Welsh, Stephen J. Ware

Faculty Scholarship

Article Extract:

A recent case from the Southern District of New York, Ross et al v. American Express et al, is an antitrust case, but it also is an important case for arbitration. Ross consolidated several class actions in which plaintiffs alleged that major credit card issuing banks, including American Express (Amex), First USA, Bank of America, Citibank, Chase, Discover, and others “violated the Sherman Act by agreeing with their competitors to implement and maintain mandatory class action-barring arbitration clauses as a term or condition for holding their general purpose credit cards.


The Influence Of Arbitrator Background And Representation On Arbitration Outcomes, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch Oct 2014

The Influence Of Arbitrator Background And Representation On Arbitration Outcomes, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

We study the role of arbitrator background in securities arbitration. We find that several aspects of arbitrator background are correlated with arbitration outcomes. Specifically, industry experience, prior experience as a regulator, and status as a professional or retired arbitrator are correlated with statistically significant differences in arbitration awards. The impact of these characteristics is affected by whether the arbitrator in question serves as the panel chair and by whether the parties to the arbitration are represented by counsel. Our findings offer some preliminary insights into the debate over possible arbitrator bias. On the one hand, they suggest that the party ...


Conflict Of Laws, James P. George, Susan T. Phillips Oct 2014

Conflict Of Laws, James P. George, Susan T. Phillips

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together ...


Arguing On The Side Of Culture, Debra Chopp, Robert Ortega, Frank E. Vandervort Sep 2014

Arguing On The Side Of Culture, Debra Chopp, Robert Ortega, Frank E. Vandervort

Articles

Human service professions are increasingly acknowledging the ubiquitous role of culture in the human experience. This is evidenced in professional codes of ethics, professional school accreditation standards, licensing, and in some cases through state statutes regarding professional codes of conduct. Across professions, concerted efforts are being made to infuse standards of culturally responsive practice into curricular content and training. For example, instruction on cultural competence is expected in business and medical education.1 Psychology and social work both require their professionals to exercise cultural competence. When it comes to cultural competence/ though, the legal codes of ethics and professional practice ...


Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark Aug 2014

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 ...


Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon Aug 2014

Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon

Articles

This article presents the first systematic theoretical and empirical study of highlow agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before trial, constrains any plaintiff’s recovery to a specified range. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing mutually beneficial speculation. Using claims data from a national insurance ...


Judgment Day For Fraud-On-The-Market: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort Jul 2014

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

The Supreme Court has reaffirmed the "fraud on the market" presumption of reliance, facilitating large scale class actions for this kind of securities fraud. This essay traces the road from its decision last year in Amgen to this year's reaffirmation in Halliburton II, and considers some of the issues that will emerge as lower courts struggle with Halliburton II's secondary holding--that the issue of "price impact" is crucial to class certification, even if the burden of proof is on the defendants.


Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux Jul 2014

Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

Faculty Scholarship at Penn Law

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason ...


The End Of Sustainability, Melinda Harm Benson, Robin Kundis Craig May 2014

The End Of Sustainability, Melinda Harm Benson, Robin Kundis Craig

Publications

No abstract provided.


Managing Complex Water Resource Systems For Ecological Integrity: Evaluating Tradeoffs And Uncertainty, Richard Morrison May 2014

Managing Complex Water Resource Systems For Ecological Integrity: Evaluating Tradeoffs And Uncertainty, Richard Morrison

Publications

Water resource systems often contain numerous components that are intertwined or even contradictory, such as power production, water delivery, recreation, and environmental needs. This complexity makes it difficult to holistically assess management alternatives. In addition, hydro climatic and ecological uncertainties complicate efforts to evaluate the impacts of management scenarios. We need new tools that are able to inform managers and researchers of the tradeoffs or consequences associated with flow alternatives, while also explicitly incorporating sources of uncertainty. My research addresses this limitation using two modeling approaches: stochastic system dynamics modeling and Bayesian network modeling. I developed a stochastic system dynamics ...


The End Of Sustainability, Melinda Harm Benson, Robin Kundis Craig May 2014

The End Of Sustainability, Melinda Harm Benson, Robin Kundis Craig

Publications

It is time to move past the concept of sustainability. The realities of the Anthropocene warrant this conclusion. They include unprecedented and irreversible rates of human-induced biodiversity loss, exponential increases in per-capita resource consumption, and global climate change. These factors combine to create an increasing likelihood of rapid, nonlinear, social and ecological regime changes. The recent failure of the Rio +20 provides an opportunity to collectively reexamine--and ultimately move past--the concept of sustainability as an environmental goal. We must face the impossibility of defining--let alone pursuing--a goal of "sustainability" in a world characterized by such extreme complexity, radical uncertainty and ...


Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover Apr 2014

Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.

However, one ...


Predicitive Coding: The New E-Discovery, Emmanuel Alvarez Apr 2014

Predicitive Coding: The New E-Discovery, Emmanuel Alvarez

Cornell Law School J.D. Student Research Papers

Predictive coding is currently the most efficient and cost effective method for electronic discovery. Predictive coding combines a good balance of human and computer components to continuously provide a set of seed documents to better assist and find conceptual relevance between potential discovery documents. The organization and method of topic categories reduces the costs for litigation overall. However, the continuous reasonableness standard used by the courts must still be met. With the more elaborate predictive coding, the court and small firms may have difficulty in judging whether the process was reasonable. This may cause potential hurdles, or even potentially changing ...


Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland Apr 2014

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents ...


The Perils Of Productivity, Mark Spottswood Apr 2014

The Perils Of Productivity, Mark Spottswood

Scholarly Publications

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is ...


Spring 2014 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law Apr 2014

Spring 2014 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.


What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat Apr 2014

What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat

Faculty Scholarship

This essay gives an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent case filing, this study presents analysis of over 200 attorney fee award orders during 2003-2013.

The study confirms the commonsense view that plaintiffs have tended ...


Agenda: Fracking, Water Quality And Public Health: Examining Current Laws And Regulations, Network For Public Health Law, American Society Of Law, Medicine & Ethics, Public Health Law Research Program Mar 2014

Agenda: Fracking, Water Quality And Public Health: Examining Current Laws And Regulations, Network For Public Health Law, American Society Of Law, Medicine & Ethics, Public Health Law Research Program

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Improved technology developments in directional drilling and hydraulic fracturing, more commonly known as "fracking," have resulted in an oil and gas production boom nationwide. Fracking involves pumping pressurized water, sand, and chemicals down wells to crack bedrock, freeing petroleum and natural gas. Wastewater discharges, hydraulic fracturing fluid releases, and other accidental spills pose potential water quality risks, sparking concern for public health.

This webinar will examine the laws and regulations governing water quality issues related to fracking, recent state court decisions affecting regulations, and implications for public health.


Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project Mar 2014

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides


Women As Expert Witnesses: A Review Of The Literature, Tess M. S. Neal Mar 2014

Women As Expert Witnesses: A Review Of The Literature, Tess M. S. Neal

Publications of the University of Nebraska Public Policy Center

This review of women’s participation in the legal system as expert witnesses examines the empirical literature on the perceived credibility and persuasiveness of women compared with men experts. The effects of expert gender are complex and sometimes depend on the circumstances of the case. Some studies find no differences, some find favorable effects for women and others for men, and still others find that expert gender interacts with other circumstances of the case. The findings are interpreted through social role theory and the role incongruity theory of prejudice. Future directions for research are identified and implications are considered for ...