Law Commons^™

Health Care Law, Sean P. Byrne, Paul Walkinshaw

University of Richmond Law Review

Arguably, no other field of law in Virginia matches the complexity, magnitude, and universality of health care. It therefore comes as little surprise that Virginia's legislative and judicial branches of government devoted substantial attention to health care law issues in 2006 and 2007. Between April 2006 and April 2007 the time period covered by this article the Supreme Court of Virginia decided a large number of cases directly affecting health care law in the Commonwealth. The 2007 legislative session also addressed a host of health care issues and those with the most impact are summarized herein. These judicial and legislative …

Does Being A Repeat Player Make A Difference? The Impact Of Attorney Experience And 'Case Picking' On The Outcome Of Medical Malpractice Lawsuits, Ralph Peeples, Catherine Harris, Thomas Metzloff

Ralph Peeples

No abstract provided.

Adr Approach To Environmental Litigation, Krishna Kumari Areti

Krishna Kumari Areti prof

Though in the beginning ADR was restricted to civil litigation slowly it has entered in to the sphere of criminal law. With the changing times, we have to introduce ADR to other areas also, where there is more litigation and where the traditional courts would take time in resolving the issues. One such area is environmental litigation. The nature of the litigation in the environmental sphere is not complex. In case mediation is used as a tool of dispute resolution rather than litigation in the traditional courts, the results would be more fruitful. The unique characteristics of environmental litigation require …

Trademark Extortion: The End Of Trademark Law, Kenneth L. Port

Kenneth L. Port

Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …

The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"John Nagle, Univ. of Notre Dame Law School" -- Agenda

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

An Empirical Assessment Of Early Offer Reform For Medical Malpractice, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

The early offer reform proposal for medical malpractice provides an option for claimants to receive prompt payment of all their net economic losses and reasonable attorney fees. Using a large sample of closed individual medical malpractice claims from Texas supplemented by data from Florida, this article provides an empirical assessment of the consequences of the early offer reform. Noneconomic damages make up about two-thirds of paid claim amounts. The minimum payment amount for serious injuries will affect the magnitude of insurer savings and claimant compensation. Payments to claimants will be expedited by 2 years by the early offer reform, and …

Rhode Island Family Court And The Best Interests Of Children, Alexandra Arnold

Senior Honors Projects

With the continuous rise of the divorce rate in America, there is also an increase in the number of children and adolescents who must suffer through the divorce along with their parents. For some, the divorce is a relief and can be a positive change in their lives. For others, it is difficult and devastating, filled with conflict and tension. Whatever the circumstances, there are permanent effects that children experience as a result of their parents’ divorce. These effects of divorce on children are becoming better known as generations of children grow up in a single parent home. The court …

The Geography Of Climate Change Litigation Part 2: Narratives Of Nation-States And Thirdspace, Hari M. Osofsky

Hari Osofsky

This article aims to interweave two current crises for law and policy in the United States: (1) the extent of our commitment to international law and (2) the approach we will take to regulating global climate change. It argues that achieving progress on both fronts requires interrogating the geographic assumptions in major conceptual approaches to international legal theory and the implications of those assumptions for their narratives of climate change litigation. To that end, it develops a taxonomy of international legal theory based on how those approaches view nation-state spaces—Westphalian, modified Westphalian, pluralist, and critical—and considers how a law and …

Practitioner's Note, Jury Selection: Whose Job Is It, Anyway?, Jeffrey J. Swart, Daniel C. Norris

Georgia State University Law Review

No abstract provided.

Substitution, Shaun Martin

Shaun Martin

Rule 25 of the Federal Rules of Civil Procedure is a relatively obscure, but critical, procedural provision. When parties merge, die, become incompetent, are replaced in office, or assign their interests, Rule 25 allows the litigation to persist, and does so (at least in theory) without substantial substantive alteration in the litigation. This seemingly straightforward provision has been increasingly utilized by parties and federal courts, particularly as underlying economic transactions potentially relevant to litigation have become both more sophisticated and more commonplace. Although Rule 25 has been universally viewed as containing self-evident and entirely unproblematic principles, both in theory and …

Global Climate Change And The National Environmental Policy Act, Kevin Haroff, Katherine Kirwan Moore

University of San Francisco Law Review

This Article examines various attempts to address climate change through the statutory framework established by the National Environmental Policy Act ("NEPA") of 1969.

Climate Change And The Clean Air Act, Lisa Heinzerling

University of San Francisco Law Review

This Article highlights the litigation before the Supreme Court in Massachusettes v. EPA, which was brought by a variety of states and other plaintiffs in order to mitigate the effects of climate change under the Clean Air Act. As such, it explores the relevant arguments before the Court, what the Court decided, and how that decision may affect the EPA's role in mitigating climate change.

The Domestic Response To Global Climate Change: What Role For Federal, State, And Litigation Initiatives?, Alice Kaswan

University of San Francisco Law Review

This Article takes as given that climate change is a serious environmental problem that requires a legal response-a response that is likely to change the way we live. This Article evaluates the most significant existing federal and state measures. This Article not only highlights the key features of federal, state, and litigation initiatives; it also addresses their respective roles.

Class Actions And Group Litigation In Switzerland, Samuel P. Baumgartner

Akron Law Faculty Publications

Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation, among other developments. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign …

Fee-Shifting Rules In Litigation With Contingency Fees, Kong-Pin Chen

Kong-Pin Chen

This article theoretically compares the British and American fee-shifting rules in their influences on the behavior of the litigants and the outcomes of litigation. We build up a comprehensive litigation model with asymmetric information and agency costs, which makes it possible to make comparison on a broad arrays of issues in a single unified framework. We then solve for the equilibria under both American and British rules, and thereby compare their equilibrium settlement amounts and rates, expenditures incurred in trials, as well as the plaintiff’s chances of winning and incentive to sue. The theoretical results are broadly consistent with existing …

Jackpot Justice: Verdict Variability And The Mass Tort Class Action, Byron G. Stier

Byron G. Stier

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys’ fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury’s verdict may be an outlier on a potential bell …

Class Actions And Group Litigation In Switzerland, Samuel P. Baumgartner

Samuel P. Baumgartner

Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation, among other developments. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign …

Beyond Compensation: Using Torts To Promote Public Health, Elizabeth A. Weeks

Journal of Health Care Law and Policy

No abstract provided.

Gender Nonconformity And The Unfulfilled Promise Of Price Waterhouse V. Hopkins, Joel Wm. Friedman

Duke Journal of Gender Law & Policy

The Supreme Court has articulated a doctrinal framework that, if construed and applied properly, provides the lower federal courts with the analytical tools necessary to identify and proscribe workplace rules that compel individuals to adhere to appearance, attire, and behavioral norms that operate to reinforce gendered expectations.1 Since the Supreme Court has ruled that penalizing an individual for failing to conform to gendered norms of behavior constitutes a form of sex-based discrimination,2 one would expect that employees would have achieved some measure of success in challenging such policies.

Facial Discrimination: Darlene Jespersen’S Fight Against The Barbie-Fication Of Bartenders, Jennifer C. Pizer

Duke Journal of Gender Law & Policy

Lambda Legal took up Darlene Jespersen's case because restrictive, genderbased rules about personal appearance and deportment can pose particular burdens for anyone whose gender identity or expression varies from conventional stereotypes; lesbian, gay, bisexual, and transgender ("LGBT") people are disproportionately burdened by such rules.7 Many LGBT people cannot readily conform to conventional gender stereotypes. 8 For others, simply the process of "coming out" as LGBT or "queer" gives rise to a deep critique of the artificially restrictive gender stereotypes that pervade our modern lives and shape corporate marketing campaigns.

Sexy Dressing Revisited: Does Target Dress Play A Part In Sexual Harassment Cases?, Theresa M. Beiner

Duke Journal of Gender Law & Policy

Feminists have been debating what constitutes appropriate female attire since the beginning of the feminist movement in the United States. Since the early 1990s, when Naomi Wolf's book The Beauty Myth was released, feminists, law professors, and popular culture critics have tried to understand women's dress in the present day. In spite of years of criticism of these beliefs, the bias this injects into rape trials, and even with the enactment of rape shield laws, this evidence still sneaks into rape cases. With this in mind, one would expect a similar phenomenon to occur in sexual harassment cases. As the …

The Many Faces Of Darlene Jespersen, Michael Selmi

Duke Journal of Gender Law & Policy

Since this symposium and this case are about appearances, it is worth noting that Lambda Legal posted pictures of Darlene Jespersen in her uniform on its website, and those pictures could be seen as presenting a stereotypical image of a middle-aged gay woman.5 There are obviously many reasons the pictures may have been presented-to humanize her, to show the effect of the makeup policy since the pictures appeared to be taken in the context of the personal best policy-but they also convey an image, and were likely intended to do so. An objection to this line of reasoning is likely …

What Do Unions Do About Appearance Codes?, Michael J. Yelnosky

Duke Journal of Gender Law & Policy

In contrast, Renee Gaud and Trisha Hart worked as cocktail servers at the Borgata Hotel Casino and Spa in Atlantic City, New Jersey.8 Unlike Darlene Jespersen, they were union employees represented by the Hotel Employees and Restaurant Employees International Union, Local 54, and thus were not at-will workers.9 Gaud, Hart, and other employees objected to a new Borgata policy prohibiting cocktail servers and bartenders from gaining more than seven percent of their body weight as determined by a baseline set when the policy was instituted.10 Gaud and Hart challenged the policy in New Jersey state court on the grounds that …

Foreword: Making Makeup Matter, Devon Carbado, Catherine Fisk, Mitu Gulati

Duke Journal of Gender Law & Policy

More than a decade ago, Katharine Bartlett, currently Dean of Duke Law School, authored a foundational article on discrimination based on appearance choices.1 The article made a big splash, provocatively raising the question of whether discrimination claims based on dress and appearance standards are cognizable under Title VII, the federal law that prohibits discrimination on the basis of, among other aspects of identity, race and sex. [...] to a large extent, their reasoning centered on two ideas: (1) that employers have broad latitude to define the professional boundaries of their workplaces and that grooming standards are a reasonable way for …

The Paradoxical Structure Of Constitutional Litigation, Pamela S. Karlan

Fordham Law Review

No abstract provided.

A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica Silbey

Faculty Scholarship

The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the …

Truth Tales And Trial Films, Jessica Silbey

Faculty Scholarship

Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …

The Executive-Internalization Approach To High-Risk Corporate Behavior: Establishing Individual Criminal Liability For The Intentional Or Reckless Introduction Of Excessively Dangerous Products Or Services Into The Stream Of Commerce, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.

Outsourcing And The Globalizing Legal Profession, Jayanth K. Krishnan

Articles by Maurer Faculty

The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which …