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Articles 1 - 30 of 86
Full-Text Articles in Law
Adopting The Gay Family, Cynthia Godsoe
Litigation Trolls, W. Bradley Wendel
Litigation Trolls, W. Bradley Wendel
Cornell Law Faculty Working Papers
Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are …
Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis
Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis
Articles
Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as …
Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz
Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz
Educational Leadership Faculty Publications
Financial resources for public education are increasingly scarce, and district leaders at all levels continue to struggle to maintain adequate levels of financial resources for their students and programs using complex funding formulas unique to their own jurisdictions. To help educators and education stakeholders better understand the dimensions of paying for public education, we begin with an overview of the historical development of school finance litigation that has shaped the funding mechanisms in most jurisdictions. The next section highlights developments in four representative jurisdictions from the funding formulas currently available in ASBO International’s Funding Formula Library. The library, available on …
Accurately Instructed In The Law: Finding State Jury Instructions, Jan B. Bissett, Margi Heinen
Accurately Instructed In The Law: Finding State Jury Instructions, Jan B. Bissett, Margi Heinen
Library Scholarly Publications
No abstract provided.
Drug Design Liability: Farewell To Comment K, Aaron Twerski, James A. Henderson Jr.
Drug Design Liability: Farewell To Comment K, Aaron Twerski, James A. Henderson Jr.
Faculty Scholarship
No abstract provided.
Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures, Emily Spottswood
Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures, Emily Spottswood
Scholarly Publications
In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to …
Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark
Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark
All Faculty Scholarship
When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, …
Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach
Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach
All Faculty Scholarship
I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.
Newsroom: Judge Edward Clifton Joins Faculty, Roger Williams University School Of Law
Newsroom: Judge Edward Clifton Joins Faculty, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
The Importance Of Being Dismissive: The Efficiency Role Of Pleading Stage Evaluation Of Shareholder Litigation, Lawrence A. Hamermesh, Michael L. Wachter
The Importance Of Being Dismissive: The Efficiency Role Of Pleading Stage Evaluation Of Shareholder Litigation, Lawrence A. Hamermesh, Michael L. Wachter
All Faculty Scholarship
It has been claimed that the risk/reward dynamics of shareholder litigation have encouraged quick settlements with substantial attorneys’ fee awards but no payment to shareholders, regardless of the merits of the case. Fee-shifting charter and bylaw provisions may be too blunt a tool to control agency costs associated with excessive shareholder litigation, and are in any event now prohibited by Delaware statute. We claim, however, that active judicial supervision of public company shareholder litigation at an early stage reduces the costs of frivolous litigation to shareholders by separating meritorious from unmeritorious litigation before the full costs of discovery are incurred. …
Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas
Cornell Law Library Prize for Exemplary Student Research Papers
In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …
Medicare Secondary Payer And Settlement Delay, Eric Helland, Jonathan Klick
Medicare Secondary Payer And Settlement Delay, Eric Helland, Jonathan Klick
All Faculty Scholarship
The Medicare Secondary Payer Act of 1980 and its subsequent amendments require that insurers and self-insured companies report settlements, awards, and judgments that involve a Medicare beneficiary to the Centers for Medicare and Medicaid Services. The parties then may be required to compensate CMS for its conditional payments. In a simple settlement model, this makes settlement less likely. Also, the reporting delays and uncertainty regarding the size of these conditional payments are likely to further frustrate the settlement process. We provide results, using data from a large insurer, showing that, on average, implementation of the MSP reporting amendments led to …
Newsroom: Logan On Bp Settlement, Roger Williams University School Of Law
Newsroom: Logan On Bp Settlement, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Not Treble Damages: Cartel Recoveries Are Mostly Less Than Single Damages, John M. Connor, Robert H. Lande
Not Treble Damages: Cartel Recoveries Are Mostly Less Than Single Damages, John M. Connor, Robert H. Lande
All Faculty Scholarship
Antitrust law provides treble damages for victims of antitrust violations, but the vast majority of private cases settle. The average or median size of these settlements relative to the overcharges involved has, until now, been only the subject of anecdotes or speculation. To ascertain what we term "Recovery Ratios," we assembled a sample consisting of every completed private U.S. cartel case discovered from 1990 to mid-2014 for which we could find the necessary information. For each of these 71 cases we collected, we assembled neutral scholarly estimates of affected commerce and overcharges. We compared these to the damages secured in …
Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff
Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff
All Faculty Scholarship
The Supreme Court’s decision in Scott v. Harris has quickly become a staple in many Civil Procedure courses, and small wonder. The cinematic high-speed car chase complete with dash-cam video and the Court’s controversial treatment of that video evidence seem tailor-made for classroom discussion. As is often true with instant classics, however, splashy first impressions can mask a more complex state of affairs. At the heart of Scott v. Harris lies the potential for a radical doctrinal reformation: a shift in the core summary judgment standard undertaken to justify a massive expansion of interlocutory appellate jurisdiction in qualified immunity cases. …
New Hardware And Software Innovations (For Volumetric Modeling), A. Keith Turner
New Hardware And Software Innovations (For Volumetric Modeling), A. Keith Turner
Uncovering the Hidden Resource: Groundwater Law, Hydrology, and Policy in the 1990s (Summer Conference, June 15-17)
19 pages (includes illustrations and maps).
Summary Of Logan V. Abe, 131 Nev. Adv. Op. No. 31 (Jun. 4, 2015), Michael S. Valiente
Summary Of Logan V. Abe, 131 Nev. Adv. Op. No. 31 (Jun. 4, 2015), Michael S. Valiente
Nevada Supreme Court Summaries
A party incurs an expense even if a third party pays the expense on the party’s behalf, as long as the party would otherwise be legally obligated to pay the expense. Thus, costs and reasonable attorney fees that a third party paid on behalf of a litigant can be recovered under NRS 17.115(4) and NRCP 68(f)(2). In addition, a party can recover expert witness fees even if the expert did not testify at trial and was not deposed.
Newsroom: Horwitz On Closed Courtroom Debate, Roger Williams University School Of Law
Newsroom: Horwitz On Closed Courtroom Debate, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Newsroom: Pbc: Safe Passage Through Guardianship, Roger Williams University School Of Law
Newsroom: Pbc: Safe Passage Through Guardianship, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Newsroom: National Law Journal: Logan On Bp Claims, Roger Williams University School Of Law
Newsroom: National Law Journal: Logan On Bp Claims, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Summary Of Manning V. State, 131 Nev. Adv. Op. 26 (May 7, 2015), Scott Lundy
Summary Of Manning V. State, 131 Nev. Adv. Op. 26 (May 7, 2015), Scott Lundy
Nevada Supreme Court Summaries
The Court held that it is a constitutional error when the district court fails to notify and confer with the parties when the court receives and responds to a note from the jury indicating that they are deadlocked. The Court further held such error will be reviewed for harmlessness beyond a reasonable doubt.
The Litigation Budget, Jay Tidmarsh
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: to require …
Can Shared Decision-Making Reduce Medical Malpractice Litigation? A Systematic Review, Marie-Anne Durand, Benjamin Moulton, Elizabeth Cockle, Mala Mann, Glyn Elwyn
Can Shared Decision-Making Reduce Medical Malpractice Litigation? A Systematic Review, Marie-Anne Durand, Benjamin Moulton, Elizabeth Cockle, Mala Mann, Glyn Elwyn
Dartmouth Scholarship
Background: To explore the likely influence and impact of shared decision-making on medical malpractice litigation and patients’ intentions to initiate litigation.
Methods: We included all observational, interventional and qualitative studies published in all languages, which assessed the effect or likely influence of shared decision-making or shared decision-making interventions on medical malpractice litigation or on patients ’ intentions to litigate. The following databases were searched from inception until January 2014: CINAHL, Cochrane Register of Controlled Trials, Cochrane Da tabase of Systematic Reviews, EMBASE, HMIC, Lexis library, MEDLINE, NHS Economic Evaluation Database, Open SIGLE, PsycINFO and Web of Knowledge. We also hand …
Resurrecting Trial By Statistics, Jay Tidmarsh
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 …
Trending @ Rwu Law: Professor Niki Kuckes's Post: Litigation Academy Returns, Niki Kuckes
Trending @ Rwu Law: Professor Niki Kuckes's Post: Litigation Academy Returns, Niki Kuckes
Law School Blogs
No abstract provided.
Spring 2015 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law
Spring 2015 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law
Publications
No abstract provided.
Optimizing Reservoir Operations To Adapt To 21st Century Expectations Of Climate And Social Change In The Willamette River Basin, Oregon, Kathleen M. Moore
Optimizing Reservoir Operations To Adapt To 21st Century Expectations Of Climate And Social Change In The Willamette River Basin, Oregon, Kathleen M. Moore
Publications
Reservoir systems in the western US are managed to serve two main competing purposes: to reduce flooding during the winter and spring, and to provide water supply for multiple uses during the summer. Because the storage capacity of a reservoir cannot be used for both flood damage reduction and water storage at the same time, these two uses are traded off as the reservoir fills during the transition from the wet to the dry season. Climate change, population growth, and development in the western US may exacerbate dry season water scarcity and increase winter flood risk, creating a need to …
Juries, Judges, And The Politics Of Tort Reform, David Logan
Juries, Judges, And The Politics Of Tort Reform, David Logan
Law Faculty Scholarship
No abstract provided.
Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger
Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger
Articles
This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …