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Articles 1 - 4 of 4
Full-Text Articles in Law
Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu
Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu
All Faculty Scholarship
The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear …
A New (Republican) Litigation State?, Stephen B. Burbank, Sean Farhang
A New (Republican) Litigation State?, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
It is a commonplace in American politics that Democrats are far more likely than Republicans to favor access to courts to enforce individual rights with lawsuits. In this article we show that conventional wisdom, long true, no longer reflects party agendas in Congress. We report the results of an empirical examination of bills containing private rights of action with pro-plaintiff fee-shifting provisions that were introduced in Congress from 1989 through 2018. The last eight years of our data document escalating Republican-party support for proposals to create individual rights enforceable by private lawsuits, mobilized with attorney’s fee awards. By 2015-18, there …
Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy
Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy
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This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …
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.