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Articles 1 - 30 of 83
Full-Text Articles in Law
Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand
Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand
Book Chapters
When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …
Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Articles by Maurer Faculty
The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …
United States Food Law Update: Health Care Reform, Preemption, Labeling Claims And Unpaid Interns: The Latest Battles In Food Law, A. Bryan Endres, Nicholas R. Johnson, Michaela N. Tarr
United States Food Law Update: Health Care Reform, Preemption, Labeling Claims And Unpaid Interns: The Latest Battles In Food Law, A. Bryan Endres, Nicholas R. Johnson, Michaela N. Tarr
Journal of Food Law & Policy
This edition of the Food Law Update explores four legal issues arising in the first half of 2010 reflective of the diverse nature of the food law specialist. As the national debate surrounding the merits of health care reform dominated the legislative agenda, this article first will discuss the food labeling rules embedded within section 4205 of the Patient Protection and Affordable Care Act of 2010. The authors then analyze the preemptive reach of the Federal Food, Drug, and Cosmetic Act and the Meat Inspection Act with respect to three separate California statutes regarding animal welfare standards, retail labels on …
A Bittersweet Deal For Consumers: The Unnatural Application Of Preemption To High Fructose Corn Syrup Labeling Claims, Josh Ashley
A Bittersweet Deal For Consumers: The Unnatural Application Of Preemption To High Fructose Corn Syrup Labeling Claims, Josh Ashley
Journal of Food Law & Policy
The recent rise of consumer consciousness regarding the health qualities of foods and beverages has become something akin to common knowledge. Reflecting this rise, studies reveal that labels regarding the health qualities of a food are more likely to increase sales. And among the health labels consumers prefer, labels describing the product as natural top the list. One website reports that according to a recent study, 31.3-percent of respondents thought that "100% natural" was the best description to read on a label, compared with only 14.2-percent who thought that "100% organic" was the best description. "All natural ingredients" was the …
United States Food Law Update: Moving Toward A More Balanced Food Regulatory Regime, A. Bryan Endres, Nicholas R. Johnson
United States Food Law Update: Moving Toward A More Balanced Food Regulatory Regime, A. Bryan Endres, Nicholas R. Johnson
Journal of Food Law & Policy
For decades, the federal government has played a significant role in promoting healthy eating. In the early 1900s, the United States Department of Agriculture (USDA) promoted a foundational diet of milk, proteins, fruits and vegetables, and grains. Most Americans are at least somewhat familiar, although perhaps confused, with the more nuanced healthy eating recommendations contained in the food pyramid - first employed in 1992. And virtually every American has experienced the federally supported school lunch program. In the first half of 2011, these two iconic programs underwent significant change as part of a stepped-up effort to improve the health of …
Appraising Problems, Not Stuff, Chad J. Pomeroy
Appraising Problems, Not Stuff, Chad J. Pomeroy
St. Mary's Law Journal
Abstract forthcoming.
United States Food Law Update: The Fda Food Safety Modernization Act, Obesity And Deceptive Labeling Enforcement, A. Bryan Endres, Nicholas R. Johnson
United States Food Law Update: The Fda Food Safety Modernization Act, Obesity And Deceptive Labeling Enforcement, A. Bryan Endres, Nicholas R. Johnson
Journal of Food Law & Policy
The long-awaited enactment of the FDA Food Safety Modernization Act (FSMA), the most significant amendment to the Federal Food, Drug, and Cosmetic Act in several decades, provides the Food and Drug Administration (FDA) with significantly enhanced jurisdiction to close some of the gaps in the domestic food safety system. The enhanced FDA authority, however, will have little impact on the shared governance system at the federal level that involves multiple agencies, as the Act does not address the U.S. General Accounting Office's (GAO) repeated calls for consolidation of the fragmented federal food safety system. Rather, the Act perpetuates the division …
Rethinking Appeals, Uri Weiss
Rethinking Appeals, Uri Weiss
Touro Law Review
This paper makes the point that a court decision that is open to an appeal is akin to a take-it-or-leave-it settlement proposal for both parties. For the case to not be appealed, both parties need to “take,” i.e., accept, this proposal. Thus, on one hand, if both parties cannot achieve a settlement by themselves, they usually benefit from the right to appeal. On the other hand, a right to appeal activates the regressive effects that characterize settlements, which also applies to lower-court decisions. For example, legal uncertainty has a regressive effect on lower-court decisions: if the judge wishes to block …
The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand
The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand
Articles
The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …
The 2010 Hmgs Ten Years Later: Where Do We Go From Here?, Steven C. Salop, Fiona Scott Morton
The 2010 Hmgs Ten Years Later: Where Do We Go From Here?, Steven C. Salop, Fiona Scott Morton
Georgetown Law Faculty Publications and Other Works
In this short article, which is part of a RIO Symposium on the Tenth Anniversary of the 2010 Merger Guidelines, we suggest a number of improvements that should be considered in the next revision of the Guidelines. Our analysis is based on the observation that horizontal merger policy has suffered from under-enforcement. We provide evidence that the enforcement agencies face significant resource constraints which require a triage process that inevitably leads to under-enforcement. In light of merger law placing greater weight on avoiding false negatives and under-deterrence than false positive and over-deterrence, the article suggests a number of ways in …
Contractual Arbitrage, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott
Contractual Arbitrage, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott
Faculty Scholarship
Standard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques …
The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs
The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs
Northwestern Journal of Law & Social Policy
No abstract provided.
A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips
A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips
Northwestern Journal of Law & Social Policy
No abstract provided.
Deceptively Simple: The Arkansas Deceptive Trade Practices Act, Margaret E. Rushing
Deceptively Simple: The Arkansas Deceptive Trade Practices Act, Margaret E. Rushing
Arkansas Law Review
In the 2017 legislative session, the Arkansas General Assembly significantly changed the Arkansas Deceptive Trade Practices Act (“ADTPA”). These changes now prohibit private class actions under the ADTPA and require plaintiffs to prove additional elements of reliance and actual financial loss when bringing a claim. The changes appear to limit the ability of a consumer to bring a private action under the ADPTA. With these changes, Arkansas joins a minority of jurisdictions with deceptive trade practices acts that increase a plaintiff’s burden and restrict private class actions.
Contracting On Litigation, Kathryn E. Spier, J.J. Prescott
Contracting On Litigation, Kathryn E. Spier, J.J. Prescott
Articles
Two risk-averse litigants with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the litigants can mitigate risk and/or speculate on the trial outcome. Contingent contracting decreases the settlement rate and increases the volume and costs of litigation. These contingent contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The litigants (weakly) prefer to contract with risk-neutral third parties when the capital market is transaction-cost free. However, contracting with third parties further decreases the settlement rate, increases the costs of litigation, and may increase the aggregate cost of risk bearing.
Trends In Private Patent Costs And Rents For Publicly-Traded United States Firms, James Bessen, Peter Neuhausler, John L. Turner, Jonathan Williams
Trends In Private Patent Costs And Rents For Publicly-Traded United States Firms, James Bessen, Peter Neuhausler, John L. Turner, Jonathan Williams
Faculty Scholarship
We use detailed data to estimate the private costs and private rents of United States patents for publicly-traded firms. In analyzing costs, we first introduce a novel theoretical model to interpret our estimates. We then combine lawsuit data from Derwent Litalert with non-practicing entity (NPE) lawsuits collected by Patent Freedom, and use an event-study approach to estimate losses suffered by alleged infringers during 1984-2009. To estimate rents, we combine patent data from the USPTO and EPO with financial data from COMPUSTAT, and use market-value regressions to estimate the value of patent rents for publicly-traded US firms during 1979-2002. We find …
Deterrence And Aggregate Litigation, Keith N. Hylton
Deterrence And Aggregate Litigation, Keith N. Hylton
Faculty Scholarship
This paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance is observed, which worsens as the number of victims increases. Compliance is never socially optimal, and the shortfall from optimality increases with the number of victims. These results, …
Two Faces Of Corporate Lobbying: Evidence From The Pharmaceutical Industry, Dongnyoung Kim, Incheol Kim, Omer Unsal
Two Faces Of Corporate Lobbying: Evidence From The Pharmaceutical Industry, Dongnyoung Kim, Incheol Kim, Omer Unsal
Finance Faculty Publications
This paper addresses two side effects of corporate lobbying on firm value in the pharmaceutical industry. Employing corporate lobbying and the Food and Drug Administration (FDA) approval data for the period from 1998 to 2013, we find that lobbying firms have a 67.3 percent higher chance that their new prescription drugs are approved by the FDA than non-lobbying firms. On the 3-day window surrounding FDA approval announcements, lobbying firms yield, on average, a 1.1% higher market reaction than non-lobbying peers. However, we also find that insiders in lobbying firms abnormally purchase their own stocks prior to FDA approvals. These opportunistic …
The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach
The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach
All Faculty Scholarship
In this paper I introduce what I call the reduced form approach to studying the plaintiff's win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff's and defendant's beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties' subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties' beliefs. I show how models with very different-looking …
Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer
Waging The War Against Unpaid Labor: A Call To Revoke Fact Sheet #71 In Light Of Recent Unpaid Internship Litigation, Rachel P. Willer
University of Richmond Law Review
Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant un- due judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc." …
"Race-Conscious" School Finance Litigation: Is A Fourth Wave Emerging?, David G. Hinojosa
"Race-Conscious" School Finance Litigation: Is A Fourth Wave Emerging?, David G. Hinojosa
University of Richmond Law Review
No abstract provided.
The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi
The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi
All Faculty Scholarship
This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard …
Neither Savior Nor Bogeyman: What Waits Behind The Door Of Third-Party Litigation Financing?, Jeremy Kidd
Neither Savior Nor Bogeyman: What Waits Behind The Door Of Third-Party Litigation Financing?, Jeremy Kidd
Jeremy Kidd
The arguments for and against third-party litigation financing are based on incorrect assumptions regarding the impacts on total litigation. A formal model incorporating the choices of plaintiff, lawyer, and financier shows only minimal impact on total litigation, largely positive. However, after addressing the potential for long-term, strategic behavior by financiers, it is obvious that some dangers remain. Divorced from the dramatic claims of proponents and opponents, litigation financing is merely a tool that can be used for good or bad, and differentiating by types of claims and the incentives of the parties allows that tool to be appropriately used.
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
All Faculty Scholarship
In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to …
The Compromised Worker And The Limits Of Employment Discrimination Law, Peter Siegelman
The Compromised Worker And The Limits Of Employment Discrimination Law, Peter Siegelman
Peter Siegelman
Why do employment discrimination plaintiffs fare so poorly? Many explanations have been offered, but this essay suggests a new one: a substantial fraction of all plaintiffs are “compromised” workers, meaning that they have done something on the job that might plausibly justify the treatment about which they are complaining. As a matter of both doctrine and logic, compromised plaintiffs can be legitimate victims of discrimination. But they face substantial difficulties in proving that their employer relied on a prohibited characteristic in its treatment of them because, by definition, their behavior offers a plausibly legitimate explanation for their treatment. After demonstrating …
Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach
Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach
All Faculty Scholarship
No abstract provided.
The Direct Costs From Npe Disputes, Michael J. Meurer, James Bessen
The Direct Costs From Npe Disputes, Michael J. Meurer, James Bessen
Faculty Scholarship
In the past, “non-practicing entities” (NPEs), popularly known as “patent trolls,” have helped small inventors profit from their inventions. Is this true today or, given the unprecedented levels of NPE litigation, do NPEs reduce innovation incentives? Using a survey of defendants and a database of litigation, this paper estimates the direct costs to defendants arising from NPE patent assertions. We estimate that firms accrued $29 billion of direct costs in 2011. Although large firms accrued over half of direct costs, most of the defendants were small or medium-sized firms. Moreover, an examination of publicly listed NPEs indicates that little of …
How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz
How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz
Faculty Scholarship
This article poses the question: How should parties to litigation finance agreements – third party funding or contingency fees – deal with the inherent difficulty in pricing legal claims? It answers that a practical solution would be to use staged funding. Staged funding side-step the impossibility of accurately pricing litigation ex ante by allowing re-pricing and exit that are pegged to information disclosure. Done right, staging allows all parties to minimize the effects of uncertainty, better price their bargain, optimize the distribution of the proceeds of litigation between its different investors – far beyond practices common today. Staged funding also …
Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks
Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks
Publications
Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?
Safety in the food …
The Patent Litigation Explosion, James Bessen, Michael J. Meurer
The Patent Litigation Explosion, James Bessen, Michael J. Meurer
Faculty Scholarship
This Article provides the first look at patent litigation hazards for public firms during the 1980s and 1990s. Litigation is more likely when prospective plaintiffs acquire more patents, when firms are larger and technologically close and when prospective defendants spend more on research and development ("R&D"). The latter suggests inadvertent infringement may be more important than piracy. Public firms face dramatically increased hazards of litigation as plaintiffs and even more rapidly increasing hazards as defendants, especially for small public firms. The increase cannot be explained by patenting rates, R&D, firm value or industry composition. Legal changes are the most likely …