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Articles 1 - 4 of 4
Full-Text Articles in Law
Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss
Scott A Moss
For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how …
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan
The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan
Scott A Moss
Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …
The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions -- For The Law And For The Litigants, Scott A. Moss
Scott A Moss
Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam war. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier allowed censoring of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the 2000s rise of reality television and online self-exposure: …
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Scott A Moss
Cases are won and lost in discovery, yet discovery draws surprisingly little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes – which, unlike trials, occur in most cases. Today, much evidence is “e-discovery” – imprudent emails or still-lingering “deleted” files – making costly discovery battles increasingly salient. But the e-discovery rules are not truly new, just a strengthening of old cost/benefit “proportionality” limits on discovery enacted when the spread of photocopiers similarly increased the amount of discovery. Proportionality limits are topic of broad consensus among civil procedure scholars as well as …