Law Commons^™

Unfair By Default: Arbitration's Reverse Default Judgment Problem, Alexi Pfeffer-Gillett

Scholarly Articles

It is a foundational principle of civil law that a defendant who fails to respond to allegations is deemed to have admitted those allegations and can be subjected to default judgment liability. This threat of default judgment incentivizes defendants to respond to claims, thereby discouraging delay tactics and helping ensure cases are resolved efficiently on the merits.

In consumer and employment arbitration, though, the fairness and efficiency benefits of traditional default judgment are flipped, rewarding rather than punishing unresponsive defendants. This difference from civil litigation arises out of arbitration’s fee structures: if a defendant-company fails to pay its share of …

A Claims Agent Can Only Profit From The Fees The Clerk Of Court Can Charge, Peter Berkanish

Bankruptcy Research Library

(Excerpt)

In the Southern District of New York, the retention of claims agents is governed by the judicial procedure set forth in section 156(c) of title 28 of the United States Code, for cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) that involve 250 or more creditors and equity holders. When a claims agent is retained under section 156(c), the claims agent is acting in the same capacity as the clerk and the services are “limited in scope to those duties that would be performed by a Clerk of Court with respect to …

U.S. Trustee Fee Increase That Is Not Applicable Uniformly Violates The U.S. Constitution, Malorie Ruggeri

Bankruptcy Research Library

(Excerpt)

Article I, Section 8, Clause 4 of the United States Constitution contains the “Bankruptcy Clause,” which vests Congress with the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The clause’s requirement that the bankruptcy laws be “uniform” is not a strictly construed requirement as Congress reserves the right to draft legislation depending on different regional issues that arise within the bankruptcy system.

Congress created the United States Trustee Program (USTP) to, among other things, oversee the administration of bankruptcy cases and promote the integrity and efficiency of bankruptcy system for the benefit of …

The New Due Process: Fairness In A Fee-Driven State, Glenn Harlan Reynolds

Scholarly Works

Many parts of the criminal justice system are funded by revenue from "users" -- i.e., the accused, in the form of fines, fees, and forfeitures. Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, we argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function. Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest …

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 …

The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

Law School News: F.A.Q. Update: Covid-19 And Rwu Law 03-30-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

F18rs Sgr No. 18, Bridget Ryan

Student Senate Enrolled Legislation

A RESOLUTION TO COMMEND THE LSU STUDENT HEALTH CENTER AND STUDENT HEALTH CENTER EXECUTIVE DIRECTOR, D’ANN MORRIS FOR PROPERLY USING STUDENT FEES IN ITS OPERATIONS AND SERVICES

F18rs Sgr No. 2 (Sfvac), Christina Black

Student Senate Enrolled Legislation

No abstract provided.

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

S18rs Sgr No. 11 (Grad School Fees), Wokil Bam

Student Senate Enrolled Legislation

A RESOLUTION

TO URGE AND REQUEST ALL THE ACADEMIC DEPARTMENTS AT LOUISIANA STATE UNIVERSITY TO CLEARLY STATE EXPECTED FEES FOR GRADUATE SCHOOL IN THE GRADUATE ASSISTANTSHIP OFFER LETTER

S18rs Sgcr No. 14 (Campus Life Fees), John Green

Student Senate Enrolled Legislation

A CONCURRENT RESOLUTION

To place a referendum before the Louisiana State University student body in the Fall 2018 election to urge and request the LSU Board of Supervisors to review and reapportion the Campus Life Support Fee

Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

Progress Or Profit: Reconsidering The Shortened Statutory Period Scheme, Max Oppenheimer

All Faculty Scholarship

No abstract provided.

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

Managing Third-Party Platform Litigation Risk In Crowdfunding: Terms, Pricing, And Reputation, Joan Macleod Heminway

Scholarly Works

Third-party platforms, intermediaries in the financing proposition offered by crowdfunding, assume various risks in undertaking that intermediation role, including the risk that legal actions may be brought against them by those seeking funding and the funders they attract. This litigation risk undoubtedly affects the terms of the services provided by third-party platforms, including platform terms of use and the pricing of platform services. Moreover, the reputation of a platform may impact and be impacted by litigation risk.

Untangling these factors and assessing their interaction will involve multiple studies over an extended period of time. This paper begins that process by …

Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol

Faculty Scholarship

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.

Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …

Wph Architecture, Inc. V. Vegas Vp, Lp., 131 Nev. Adv. Op. 88 (Nov. 5, 2015), Emily Dyer

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 68, NRS § 17.115, and NRS § 18.020, which allow costs and fees to be awarded in several types of district court cases, do not require an arbitrator to award fees and costs after an offer of judgment has been made; and (2) NRCP 68, NRS § 17.115, and NRS § 18.020 are substantive in their application to arbitration proceedings.

Punitive Compensation, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution's traditional aim of disgorging a defendant's ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider "restitution," this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim's losses, not a defendant's …

Sub-Adviser Fee Litigation: Will Section 36(B) Acquire Teeth?, Francis J. Facciolo, Leland S. Solon

Faculty Publications

(Excerpt)

Section 36(b) of the Investment Company Act establishes a private breach of fiduciary duty cause of action for shareholders in an investment company, or mutual fund, to challenge the fees charged by the mutual fund’s investment adviser, in recognition of the fact that the adviser or one of its affiliates customarily creates the mutual fund and has a great deal of influence over the composition of the mutual fund’s board of directors or trustees, which negotiates the fees paid to the investment adviser. Under the Gartenberg standard, which was substantially adopted by the Supreme Court in Jones v. Harris …

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Faculty Scholarship

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

Berkshire Versus Kkr: Intermediary Influence And Competition, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Kathryn Judge of Columbia University documents how financial intermediaries persistently impose high fees compared to the value rendered, attributes this to political influence, and suggests countervailing policy strategies, including stoking competition and enhancing disclosure to reduce excessive transaction costs. In this solicited comment, I concur with Judge's findings and prescriptions by adding a paired example: that of Berkshire Hathaway versus Kohlberg Kravis Roberts. In the field of corporate acquisitions, these rivals are opposites, Berkshire shunning intermediaries and generating virtually no transaction costs while KKR feasts on multiple and lavish fees. The contrast reflects broader differences between Berkshire and private equity …

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

Mercenary Criminal Justice, Wayne A. Logan

Scholarly Publications

To some degree, money has always figured in criminal justice. Early on, private enforcers of the criminal law received payments for their work. Remuneration played a less explicit but still prominent role in the nineteenth and twentieth centuries as public actors carried out the work of criminal justice. Today, amid significant budget pressures brought on by the Great Recession and the costs of running the nation’s massive criminal justice apparatus, courts and other system actors rely heavily on a growing number of legal financial obligations (“LFOs”) as revenue sources. When this happens, courts and other system actors become mercenaries, in …

The Client Who Did Too Much, Nancy B. Rapoport

Scholarly Works

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

S13rs Sgb No. 7 (Budget), Beadle, Grashoff

Student Senate Enrolled Legislation

No abstract provided.

Child Pornography And The Restitution Revolution, Cortney E. Lollar

Law Faculty Scholarly Articles

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach …

Is Your Retainer Safe?: How In Re Two Gales Ensures That Bankruptcy Professionals Keep Their Retainer Fees, Jonathan Abramovitz

Bankruptcy Research Library

(Excerpt)

In a decision that bankruptcy professionals are certain to applaud, the United States Bankruptcy Appellate Panel of the Sixth Circuit held that bankruptcy courts must not order disgorgement of attorneys’ retainers in bankruptcy cases if the attorney has perfected a lien in the retainer under state law. Prior to In re Two Gales, some bankruptcy courts had justified disgorgement as necessary to comply with 11 U.S.C. § 726(b), which requires administrative claimants to be compensated through pro rata distributions upon administrative insolvency. In re Two Gales confirmed what some other bankruptcy courts have already held: section 726(b) is …

The Case For Value Billing In Chapter 11, Nancy B. Rapoport

Scholarly Works

This article explores the forces contributing to very high professional fees in large Chapter 11 cases and suggests that lawyers might want to consider valuing their services in ways other than the traditional billable hour approach.