Law Commons^™

Empaneling The Peers Of Polluters: Obtaining A Jury Trial Under The Opa And Cercla As Explained In United States V. Viking Resources, Inc., Addison J. Schreck

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Optimizing Private Antitrust Enforcement, Daniel A. Crane

Articles

Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and the legal judgment day is usually so long …

Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger

Articles

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

Articles

In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane

Articles

During both economic crises and wars, times of severe national anxiety, antitrust has taken a back seat to other political and regulatory objectives. Antitrust enforcement has often been a political luxury good, consumed only during periods of relative peace and prosperity. In 1890, the Sherman Act's adoption kicked off the era of national antitrust enforcement. Barely three years later, the panic of 1893 provided the first major test to the national appetite for antitrust enforcement. Perhaps 1893 should not be included in the story: antitrust was still young, and it was not even clear that the Sherman Act applied to …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Reading Stoneridge Carefully: A Duty-Based Approach To Reliance And Third Party Liability Under Rule 10b-5, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in the Stoneridge case has largely been interpreted as a imposing a strict, pro-defendant reliance requirement. This article offers an alternative reading that takes the Court's analysis more seriously than its overheated dicta, one that makes "remoteness" a serious and meaningful inquiry that can produce balanced and fair responses to the concern that seemed to motivate the search for restraint: fear of disproportionate liability. It explores the nature of the dispropotion, and suggests ways--using the Court's own explanatory tools--for deciding when third party involvement is close enough to the fraud so that fear of disproportion lessens. …

Unfair Competition And Uncommon Sense, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But …

Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr.

Faculty Scholarship

Both Europe and the United States are rethinking their approach to aggregate litigation. In the United States, class actions have long been organized around an entrepreneurial model that uses economic incentives to align the interest of the class attorney with those of the class. But increasingly, potential class members are preferring exit to voice, suggesting that the advantages of the U.S. model may have been overstated. In contrast, Europe has long resisted the United States's entrepreneurial model, and the contemporary debate in Europe centers on whether certain elements of the U.S. model – namely, opt-out class actions, contingent fees, and …

Balancing Of Markets, Litigation And Regulation, Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin, Todd J. Zywicki

Faculty Scholarship

In addition to judicial education programs that the Law and Economics Center conducts, we also have a division that focuses on public policy research, known as the Searle Civil Justice Institute. In November, we held a public policy roundtable where we commissioned a variety of research and brought together a group of experts, both academic and practitioner experts, to discuss the issue of balancing the appropriate roles of markets, litigation, and regulation. And the notion there is that each one - markets, litigation, and regulation - can and probably should play a role in addressing various consumer harms.

The Economics Of Public Nuisance Law And The New Enforcement Actions, Keith N. Hylton

Faculty Scholarship

In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.

D Is For Digitize: An Introduction, James Grimmelmann

James Grimmelmann

This brief introductory essay reviews the history of D is for Digitize conference on the Google Books settlement and provides an overview of the seven articles in the symposium issue.

Rough Justice, Alexandra Lahav

Alexandra D. Lahav

This Essay offers a new justification for rough justice. Rough justice, as I use the term here, is the attempt to resolve large numbers of cases by using statistical methods to give plaintiffs a justifiable amount of recovery. It replaces the trial, which most consider the ideal process for assigning value to cases. Ordinarily rough justice is justified on utilitarian grounds. But rough justice is not only efficient, it is also fair. In fact, even though individual litigation is often held out as the sine qua non of process, rough justice does a better job at obtaining fair results for …

Antitrust, Class Certification, And The Politics Of Procedure, Joshua P. Davis, Eric L. Cramer

Joshua P. Davis

This Article develops two arguments against a possible trend in federal appellate courts toward imposing a new, heightened standard for class certification in antitrust cases. Recent case law can be read to imply that trial judges may make findings of fact on the merits in deciding class certification, including about whether plaintiffs will be able to show with class-wide evidence that every class member was harmed by allegedly anticompetitive conduct. The first argument is that the potential new standard would require a showing at class certification on an issue—whether all class members were injured—that plaintiffs need not, and typically do …

Must, Should, Shall, Steven S. Gensler

Steven S. Gensler

No abstract provided.

Régimen De Prisión Preventiva En América Latina: La Pena Anticipada, La Lógica Cautelar Y La Contrarreforma / Pre-Trial Detention Regime In Latin America: The Pre-Trial Punishment, Flight Risk And The Counter Reform, Claudio Fuentes Maureira

Claudio Fuentes Maureira

One of the main reasons that justified the criminal procedure reform in Latin America was the possibility to overcome and changed different practices that were very problematic. One of these complex situations was the excessive use of pre-trial detention in the context of criminal investigations; in particular, the abuse of this institution had a dangerous outcome when it comes to the protection of the human rights of the detainees.

From the mid 90’s onwards, most of the Latin American countries started a reform of their criminal institutions and proceedings. A considerable portion of the legal framework was heavily modified in …