Law Commons^™

Developing Inclusive Language Competency In Clinical Teaching, Jennifer Safstrom, Joseph Mead

Vanderbilt Law School Faculty Publications

Drawing from legal pedagogy, litigation practice, and teaching experience, this article seeks to compile a set of key considerations for inclusive language decision-making in the clinical setting. Using a multi-factor framework--accuracy, precision, relevance, audience, and respect-this analysis explores the process for deciding on terms to use in practice and the potential implications of those choices on student learning, case outcomes, and attorney-client relationships. In addition, this article explores some current trends and best practices when adopting these principles in the context of specific groups. This article connects these principles to broader academic and practice is- sues, including the American Bar …

Time To Slapp Back: Advocating Against The Adverse Civil Liberties Implications Of Litigation That Undermines Public Participation, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

Defamation law is a catchall term encompassing civil claims for reputational harm to an individual, including slander and libel. Defamation claims originated in English common law and have since evolved within the American legal system. Scholars have characterized the law of defamation as “a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities” and as a “‘fog of fictions, inferences, and presumptions.’” Amid these inherent variations and complexities of defamation law and litigation — including the largely state-specific nature of tort law development — emerges a disturbing trend across jurisdictions. In the modern era, defamation claims have been used …

A Fiduciary Judge's Guide To Awarding Fees In Class Actions, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

It is often said that judges act as fiduciaries for the absent class members in class action litigation. If we take this seriously, how then should judges award fees to the lawyers who represent these class members? The answer is to award fees the same way rational class members would want if they could do it on their own. In this Essay, I draw on economic models and data from the market for legal representation of sophisticated clients to describe what these fee practices should look like. Although more data from sophisticated clients is no doubt needed, what we do …

Distributing Attorney Fees In Multidistrict Litigation, Edward K. Cheng, Paul H. Edelman, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

As consolidated multidistrict litigation has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the National Football League (NFL) Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the twenty-six firms involved sparked two additional years of litigation. We explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. …

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the …

Appraisal: Shareholder Remedy Or Litigation Arbitrage?, Randall S. Thomas, Wei Jiang, Tao Li, Danqing Mei

Vanderbilt Law School Faculty Publications

We present the first large-sample empirical study of the recent trends in the ap- praisal remedy-the right of shareholders of companies completing an eligible merger to petition the court for an improved price for their shares. Appraisal petitions have increased markedly over our sample from 2000 to 2014, and the composition of those bringing these suits has shifted from individual sharehold- ers toward specialized hedge funds. Appraisal petitions are more likely to be filed against mergers with perceived conflicts of interest, including going-private deals, minority squeeze outs, and acquisitions with low premiums, which makes them a potentially important governance mechanism. …

The Origins Of Legislation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …

The End Of Class Actions?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court's decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to …

A Theory Of Representative Shareholder Suits And Its Application To Multijurisdictional Litigation, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We develop a theory to explain the uses and abuses of representative shareholder litigation based on its two most important underlying characteristics: the multiple sources of the legal rights being redressed (creating dynamic opportunities for arbitrage) and the ability of multiple shareholders to seek to represent the collective group in such litigation (creating increased risk of litigation agency costs by those representatives and their attorneys). Placed against the backdrop of controlling managerial agency costs, our theory predicts that: (1) the relative strength of the different forms of shareholder litigation will shift over time; (2) these shifts can result in new …

Intraportfolio Litigation, Amanda Rose, Richard Squire

Vanderbilt Law School Faculty Publications

The modern trend is for investors to diversify. Shareholders who own one S&P 500 firm tend to own many of the others as well. This trend casts doubt on the traditional compensation and deterrence rationales for legal rules that hold corporations liable for the acts of their agents. Today, when A Corp sues B Corp (for breach of contract, theft of trade secrets, or any other legal wrong), many of the same shareholders own both the plaintiff and the defendant. For these shareholders, damages just shift money from one pocket to another, minus of course lawyer fees. We offer here …

Slipping Away From Justice: The Effect Of Attorney Skill On Trial Outcomes, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Just how important is a good attorney? Can a skillful attorney actually change the verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, the anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions-not only for high-profile defendants, but for the everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to …

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to pay them a side settlement to drop their appeals. It is thought that class counsel pay these side settlements because they cannot receive their fee awards until all appeals from the settlement are resolved. Although several solutions to the blackmail problem have been proposed, both …

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers, though not entirely immune to the effects of cognitive illusions that have been shown to …

The New Look Of Shareholder Litigation: Acquisition-Oriented Class Actions, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Shareholder litigation is the most frequently maligned legal check on managerial misconduct within corporations. Derivative lawsuits and federal securities class actions are portrayed as slackers in debates over how best to control the managerial agency costs created by the separation of ownership and control in the modern corporation. In each instance, early hopes these suits would effectively monitor managerial misconduct have been replaced with concerns about the size of the litigation agency costs of such representative litigation, which can arise when a self-selected plaintiff's attorney and her client that are appointed to pursue the claims of an entire class of …

The Dangers Of Deference: International Claim Settlement By The President, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

During the final months of the Clinton administration, the State Department entered into a trio of unprecedented international agreements with France (the "French Agreement"), Germany (the "German Agreement"), and Austria (the "Austrian Agreement"). These "sole" executive agreements, designed to resolve litigation pending in the U.S. courts that arose out of World War II and the Holocaust, were made without Senate ratification(as required for a treaty) or congressional authorization (as in a congressional- executive agreement). Although executive branch settlement of claims without Senate or congressional approval has a long history, these executive agreements mark an important departure from prior practice by …

Procedural Justice Research And The Paucity Of Trials, Chris Guthrie

Vanderbilt Law School Faculty Publications

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It's Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases "on the grounds that litigants prefer [mediation] to traditional litigation," yet there is "a long line of social psychological research on individuals' evaluations of different dispute resolution procedures" consistent with the "idea that litigants might prefer adversarial litigation and adjudication" to mediation.' Hensler acknowledges that "some experimental research has found that subjects prefer mediation," but she argues that "the empirical …

Jurors, Judges, And The Mistreatment Of Risk By The Courts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A sample of almost 500 jury-eligible citizens considered a series of experimental situations involving accidents. The juror sample did not properly apply negligence rules, as their errors were particularly great for low-probability, large-loss cases. They also penalized corporations for undertaking corporate risk analyses that seek to trade off cost versus risk reduction benefits. Jurors' damages assessments were also more prone to error than were responses by a sample of state judges. Judges were less prone to erroneous risk beliefs and less subject to the zero-risk mentality.

Development Of An Early Identification And Response Model Of Malpractice Prevention, Ellen Wright Clayton, Gerald B. Hickson, James W. Pichert, Charles F. Federspiel

Vanderbilt Law School Faculty Publications

The dramatic rise in the incidence of malpractice claims over the past thirty years has revealed several problems with the U.S. system of medical dispute resolution. First, the sudden and unexpected increase in claims has created an insurance crisis wherein various medical specialists have had difficulty obtaining affordable insurance coverage. One such crisis occurred in Florida in the mid-1980's, when an inability of many physicians to procure medical malpractice coverage caused some to limit or curtail their practice. This resulted in access problems for the public. This phenomenon has disproportionately befallen physicians practicing obstetric medicine. Second, besides contributing to periodic …

Product Liability Litigation With Risk Averson, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The recent law and economics literature has directed much energy toward identifying the various factors that determine whether parties will litigate or settle accident claims.' The substantive interest in this area rests in large measure on the obvious element of conflict in all these cases: the plaintiff is trying to obtain reimbursement for his losses from the defendant, which the defendant wishes to avoid paying. The strategic structure of their interaction is quite complex because the outcomes of bringing claims are heavily influenced by the costs, usually substantial, of both bargaining and litigating. The game between plaintiff and defendant is …