Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2013

Litigation

Discipline
Institution
Publication
Publication Type
File Type

Articles 1 - 30 of 117

Full-Text Articles in Law

Unattainable Justice: The Form Of Complex Litigation And The Limits Of Judicial Power, Jay Tidmarsh Nov 2013

Unattainable Justice: The Form Of Complex Litigation And The Limits Of Judicial Power, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.


Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka Nov 2013

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity ...


Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf Nov 2013

Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf

Irene Scharf

This Article explores the long and faltering history of attempts to impose liability on tobacco product manufactures. Part II traces the manufacturers' historical and current actions of targeting youth through both promotions and deceptive advertising. Part III argues in favor of an expanded cause of action against the manufacturers for the intentional tort of battery. Part IV discusses the prospect of awards of punitive damages in these cases, and the Epilogue summarizes other advantages of the battery cause of action.


Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel Nov 2013

Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel

Randy J Kozel

The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current ...


The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley Nov 2013

The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley

William K. Kelley

No abstract provided.


Book Review Of Clarence Darrow: Attorney For The Damned, By John A. Ferrell, Karla Mari Mckanders Nov 2013

Book Review Of Clarence Darrow: Attorney For The Damned, By John A. Ferrell, Karla Mari Mckanders

Journal of Legal Education

No abstract provided.


Cure For Collusive Settlements: The Case For A Per Se Prohibition On Pay-For-Delay Agreements In Pharmaceutical Patent Litigation, A , Michael Owens Nov 2013

Cure For Collusive Settlements: The Case For A Per Se Prohibition On Pay-For-Delay Agreements In Pharmaceutical Patent Litigation, A , Michael Owens

Missouri Law Review

This Comment will examine how the particulars of the Hatch-Waxman Act, the regulatory scheme that governs generic competition in pharmaceutical industry, gives rise to reverse settlements in infringement litigation; review existing analysis of the pay for delay problem in judicial decisions, in academic commentary, and amongst antitrust enforcement bodies; and finally, draw upon a decision theoretic framework to propose per se illegality as the appropriate antitrust rule for pay-for-delay settlements.


Book Review Of Framed: America's 51 Constitutions And The Crisis Of Governance, By Sanford Levinson, Lawrence Friedman Nov 2013

Book Review Of Framed: America's 51 Constitutions And The Crisis Of Governance, By Sanford Levinson, Lawrence Friedman

Journal of Legal Education

No abstract provided.


Election Law Pleading, Joshua A. Douglas Nov 2013

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent ...


Fee Shifting And The Free Market, Jonathan T. Molot Nov 2013

Fee Shifting And The Free Market, Jonathan T. Molot

Vanderbilt Law Review

It is uncontroversial that litigation is too expensive. Controversy abounds, however, over who is to blame and what is to be done about the problem. Plaintiffs and defendants each accuse the other of pursuing weak or meritless litigation positions that inflict needless expense. This Article suggests that regardless of who is correct-and who is more often at fault-the same set of solutions may be available to assuage the problem. The Article embraces a combination of procedural reforms and market mechanisms designed to improve matters for both sides and to make it less likely that a party with a meritorious litigation ...


New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett Oct 2013

New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Matthew J. Barrett

Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued ...


Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett Oct 2013

Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Matthew J. Barrett

In late 1975, the accounting and legal professions reached an accord that led to three new professional standards: (1) a new financial accounting rule for contingencies, (2) an auditing standard addressing the requirement that an auditor obtain evidence about an audit client's contingent liabilities to determine whether the client has properly treated those items in its financial statements, and (3) the American Bar Association's Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information under that auditing standard. The Commentary that accompanied the Statement of Policy explicitly stated that the organized bar's expectation that communications between ...


Section 1983, Martin A. Schwartz, Leon Lazer, George Pratt, Leon Friedman Oct 2013

Section 1983, Martin A. Schwartz, Leon Lazer, George Pratt, Leon Friedman

Leon D. Lazer

No abstract provided.


Sealing Records, Curtis E.A. Karnow Oct 2013

Sealing Records, Curtis E.A. Karnow

Curtis E.A. Karnow

Practical tips on sealing records in California state courts


All Judicial Politics Are Local: The Political Trajectory Of Judicial Reform In Haiti, Louis-Alexandre Berg Oct 2013

All Judicial Politics Are Local: The Political Trajectory Of Judicial Reform In Haiti, Louis-Alexandre Berg

University of Miami Inter-American Law Review

No abstract provided.


The Impact Of Preemption In The Nfl Concussion Litigation, Kelly A. Heard Oct 2013

The Impact Of Preemption In The Nfl Concussion Litigation, Kelly A. Heard

University of Miami Law Review

No abstract provided.


The Extradition Treaty Between Jamaica And The United States: Its History And The Saga Of Christopher “Dudus” Coke, Kenneth L. Lewis Jr. Oct 2013

The Extradition Treaty Between Jamaica And The United States: Its History And The Saga Of Christopher “Dudus” Coke, Kenneth L. Lewis Jr.

University of Miami Inter-American Law Review

No abstract provided.


On Monday's Argument In Al-Bahlul, Peter Margulies Oct 2013

On Monday's Argument In Al-Bahlul, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Risk Regulation In Perspective: Reserve Mining Revisited, Daniel A. Farber Sep 2013

Risk Regulation In Perspective: Reserve Mining Revisited, Daniel A. Farber

Daniel A Farber

The Reserve Mining v. EPA case involved the disposal of iron ore mine tailings containing asbestos in Lake Superior over an extended period. The case litigation is described, and the decision forcing the Reserve Mining Co to spend over $200 million to eliminate asbestos from the drinking water of Duluth, MN, is assessed in light of uncertain risk assessment. It is concluded that the court decision was the prudent one on the basis of both cost/benefit and feasibility analysis. Cost/benefit analysis focuses on the possible number of lives saved vs. the total cost of control, while feasibility analysis ...


Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak Sep 2013

Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak

Chicago-Kent Journal of Intellectual Property

Significant recent judicial and legislative developments have changed the way litigants and counsel need to plan for and litigate inequitable conduct allegations. Exergen and Therasense have heightened the standards for pleading and proving inequitable conduct, respectively, and Congress has expanded the patentee’s post-grant options for preempting or defeating inequitable conduct challenges. Without a doubt, the inequitable conduct litigation landscape has changed. Careful, thorough consideration of all of these developments and their implications is a must for any litigant or counsel faced with or considering asserting a charge of inequitable conduct. This paper discusses these significant recent inequitable conduct-related developments ...


Why Technology Customers Are Being Sued En Masse For Patent Infringement & What Can Be Done, Colleen Chien, Edward Reines Aug 2013

Why Technology Customers Are Being Sued En Masse For Patent Infringement & What Can Be Done, Colleen Chien, Edward Reines

Faculty Publications

Last year, the Children’s Hospital of Philadelphia and the AIDS Healthcare Foundation were accused of patent infringement. Their alleged wrongdoing? Purchasing routers and using them to provide wireless services. A small Atlanta-based company called Bluewave, along with hundreds to thousands of small businesses, received demands for royalties for alleged patent infringement. The accusation? Using an off-the-shelf PDF machine. As incredible as they might seem, these mass patent assertions and the harm they cause are real – six out of the top ten patent litigation campaigns have exclusively named technology customers, not suppliers. This has drawn attention from state attorneys generals ...


'Holding Up' And 'Holding Out', Colleen Chien Aug 2013

'Holding Up' And 'Holding Out', Colleen Chien

Faculty Publications

Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it’s most vulnerable – after it has implemented a technology – and is able wrest a settlement because it’s too late for the company to change course. Patent “hold-out” is a term I use to describe the practice of companies routinely ignoring patents and resisting patent owner demands, because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises – the smartphone wars, standards patents, or trolls all involve the ...


Rights As Footprints: A New Metaphor For Contemporary Human Rights Practice, Katharine Young, Jeremy Perelman Aug 2013

Rights As Footprints: A New Metaphor For Contemporary Human Rights Practice, Katharine Young, Jeremy Perelman

Katharine G. Young

As the discourse of human rights becomes ever more widespread, the analysis of contemporary human rights practice must contend with its pluralistic and contradictory features. In this Article, we introduce the metaphor of rights as "footprints." We suggest that this metaphor captures the expressive and constitutive role of rights, and provides a critical tool with which to understand the accomplishments of the human rights field. In doing so, we document a right-to-health campaign in Accra, Ghana, which sought to end the human rights infringements that arose from the financing of health care through user fees. These infringements occurred when public ...


Agenda: Arizona V. California At 50: The Legacy And Future Of Governance, Reserved Rights, And Water Transfers, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment Aug 2013

Agenda: Arizona V. California At 50: The Legacy And Future Of Governance, Reserved Rights, And Water Transfers, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Arizona v. California at 50: The Legacy and Future of Governance, Reserved Rights, and Water Transfers (Martz Summer Conference, August 15-16)

The Colorado River is an economic, environmental and cultural lifeline of the southwestern United States, and the allocation of its scarce waters are a source of ongoing controversy. This year marks the 50th anniversary of the Supreme Court decision in Arizona v. California. While the case was an important landmark in the still-evolving relationship between these two Lower Basin states, it remains most relevant today by the way in which it clarified federal rights and responsibilities. This is especially true in the areas of federal (including tribal) reserved rights, the role of the Interior Secretary in Lower Basin water management ...


The Calculation Of Prejudgment Interest, Michael S. Knoll, Jeffrey M. Colon Aug 2013

The Calculation Of Prejudgment Interest, Michael S. Knoll, Jeffrey M. Colon

Jeffrey M. Colon

This Essay describes the proper method of calculating prejudgment interest based on sound financial principles. Using the paradigm that the claim plaintiff holds in litigation represents an involuntary loan from plaintiff to defendant and recognizing that in bankruptcy courts treat legal claims similarly to unsecured debt, we argue that prejudgment interest should be computed using the defendant's unsecured borrowing rate. Furthermore, we argue that courts should use a short-term, floating interest rate rather than a long-term rate in order to provide the proper incentive for the parties to settle. We criticize alternative bases for awarding prejudgment interest and address ...


I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho Aug 2013

I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho

Jeremiah A. Ho

This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16 ...


Visualizing The Law: Using Charts, Diagrams, And Other Images To Improve Legal Briefs, Adam L. Rosman Aug 2013

Visualizing The Law: Using Charts, Diagrams, And Other Images To Improve Legal Briefs, Adam L. Rosman

Journal of Legal Education

No abstract provided.


Teaching Teamwork To Law Students, Janet Weinstein, Linda Morton, Howard Taras, Vivian Reznik Aug 2013

Teaching Teamwork To Law Students, Janet Weinstein, Linda Morton, Howard Taras, Vivian Reznik

Journal of Legal Education

No abstract provided.


Class Action's Last Hope: The Argument For Federal Statutory Rights Preemption Of The Federal Arbitration Act: In Re American Express Merchants' Litigation, Matthew Reddish Jul 2013

Class Action's Last Hope: The Argument For Federal Statutory Rights Preemption Of The Federal Arbitration Act: In Re American Express Merchants' Litigation, Matthew Reddish

Journal of Dispute Resolution

This note will examine the history behind several recent federal decisions on class arbitration as well as federal antitrust laws and how antitrust laws should be enforced in the shadow of the FAA.


The Evans Case: A Sixth Amendment Challenge To Florida's Capital Sentencing Statute, Brendan Ryan Jul 2013

The Evans Case: A Sixth Amendment Challenge To Florida's Capital Sentencing Statute, Brendan Ryan

University of Miami Law Review

No abstract provided.