Law Commons^™

Makes Sense To Me: How Moderate, Targeted Federal Tort Reform Legislation Could Solve The Nation's Asbestos Litigation Crisis, Mark H. Reeves

Vanderbilt Law Review

During the three decades he spent working as a machinist for the United States Navy, Henry Plummer suffered continuous exposure to the asbestos used in the insulation, gaskets and pipe coverings of warships. In late 1999, a biopsy confirmed that he had developed mesothelioma, a gruesome type of cancer that kills all those who contract it and is caused only by asbestos. In an effort to combat his cancer, Mr. Plummer embarked on a long, painful course of treatments that included chemotherapy and the removal of his left lung in April 2000. In early 2001, however, Mr. Plummer's doctor informed …

On The Prospect Of “Daubertizing” Judicial Review Of Risk Assessment, Thomas O. Mcgarity

Law and Contemporary Problems

Lawyers for companies subject to federal health, safety and environmental regulation hope that stringent substantive judicial review will relieve their clients of the burdens of much regulation without the need for troublesome legislative battles they seem unable to win. McGarity argues that assigning a Daubert-like (Daubert v. Merrell Dow Pharmaceuticals Inc) gatekeeper role to courts engaged in judicial review of agency risk assessments is a profoundly bad idea.

Roundtable With Former Directors Of The Bureau Of Economics, Jonathan Baker

Presentations

The roundtable commemorates the 100th anniversary of the FTC's predecessor agency, the Bureau of Corporations. It was sponsored by the FTC's Bureau of Economics (BE) and focused on BE history and contributions of BE and economic analysis to antitrust and consumer protection enforcement, and to research and economic knowledge and policy. BE was featured because the original functions of the Bureau of Corporations were to collect information, to conduct industry and policy research, to prepare reports at the request of the Congress and the President. The panelists for the roundtable consisted of former BE Directors and Acting Directors from the …

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

ExpressO

This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates …

“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin

All Faculty Scholarship

“’Black People’s Money’: The Impact of Law, Economics, and Culture in the Context of Race on Damage Recoveries” is one of a series of articles by the author dealing with black economic marginalization; prior work considered such topics as shopping and selling as forms of deviance, street vending, restraints on leisure, and the importance of informality in loan transactions. This article deals with the linkage between the social significance of black people’s money and its material value. It analyzes the construction of “black money,” its association with cash, and the taboos and cultural practices that assure that black money will …

Zuni Indian Tribe Water Rights Settlement Act Of 2003, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: Zuni Indian Tribe Water Rights Settlement Act of 2003, PL 108-34, 117 Stat. 782 (June 23, 2003). Parties: Zuni Tribe, US, AZ. The Act ratifies the Settlement Agreement concerning Zuni Indian Tribe water rights in the Little CO River basin, AZ. It authorizes appropriations for acquisition of water rights and associated lands and, for fiscal years 2004 through 2006; and for actions necessary to restore, rehabilitate, and maintain the Zuni Heaven Reservation, including the Sacred Lake, wetlands, and riparian areas. The US shall take legal title of specified lands in the Gila and Salt River Base and Meridian …

Climate Change And The Rio Grande: Throwing Gasoline On A Fire, Denise Fort

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

4 pages.

"Summary"

"Professor Denise Fort, University of New Mexico School of Law"

The Economics Of Litigation And Arbitration: An Application To Franchise Contracts, Keith N. Hylton, Christopher R. Drahozal

Faculty Scholarship

If we define the deterrence benefits from contract enforcement as avoided harms net of avoidance costs, we should expect contracting parties to choose the dispute resolution forum that provides the greatest difference between deterrence benefits and dispute resolution costs for every type of dispute. We apply this general framework to franchise contracts and conduct an empirical analysis of the determinants of arbitration agreements among franchising parties. Although it is obvious that contracting parties have an incentive to choose arbitration in order to reduce dispute-resolution costs, there have been no studies of the importance of deterrence concerns. We examine the deterrence …

Just What The Doctor Ordered: The Admissibility Of Differential Diagnosis In Pharmaceutical Product Litigation, Wendy Michelle Ertmer

Vanderbilt Law Review

In the decade since Daubert v. Merrell Dow Pharmaceuticals Inc., federal judges have exercised their role as gatekeepers of expert witness testimony to evaluate many different categories of scientific evidence. They have not done so without controversy, however. Because the element of causation in pharmaceutical product litigation is frequently dispositive, the application of Daubert to scientific evidence of causation has been particularly contentious. Plaintiffs in such cases must prove both general causation-that the product is capable of causing an injury of the type from which the plaintiff suffers-and specific causation-that the product was the actual cause of the plaintiffs injury. …

Tohono O'Odham Settlement, Tonhono O'Odham Nation Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Tohono O'odham Settlement (Apr. 30, 2003). Parties: Tohono O'odham Nation, AZ, US, Tucson, Asarco Inc., Farmers Investment Co., two allottee classes. The Settlement Agreement has been revised to eliminate any conflicts with PL 108-451. The parties are a part of the Gila River adjudication. The Nation has a water right of 79,200 acre-feet per year, sourced in ground and surface water. This water may be put to any use. The Nation may use the water off-reservation according to the attached contracts or pursuant to state law, but the uses must remain within the state. Provisions are made for …

A Taxing Settlement, Hanoch Dagan, James J. White

Law Quadrangle (formerly Law Quad Notes)

Citizens sue industries for tort injuries. That is familiar. Governments sue the same industries for costs suffered in ameliorating or preventing those injuries. That is unfamiliar. This new pattern of litigation and settlement inherently puts the government in competition with its citizens.

Standing To Sue In Citizen Suits Against Air And Water Polluters Under Friends Of The Earth, Inc. V. Laidlaw Environmental Services (Toc), Inc., Steven A.G. Davison

All Faculty Scholarship

No abstract provided.

Is Notice Required In A Title Ix Athletics Action Not Involving Sexual Harassment? , Diane Heckman

Marquette Sports Law Review

No abstract provided.

Dispelling The Myths Of Asbestos Litigation: Solutions For Common Law Courts, Richard O. Faulk

Richard Faulk

After the Berlin wall fell in 1990, it appeared that the term "cold war" had outlived its usefulness. But thirteen years later, another "cold war" is being fought -- not between apprehensive armies in Berlin, but in our nation's courts as they struggle to resolve hundreds of thousands of asbestos claims filed against American industry. Like the first "cold war," the present one involves a great deal of action that takes place below the "radar screen." Thousands of cases are filed annually, lawyers line up on both sides and spend billions prosecuting and defending them. Then for various reasons, including …

Can Compulsory Arbitration Be Reconciled With Section 7 Rights?, Ann C. Hodges

Law Faculty Publications

Employers are increasingly imposing arbitration agreements on their employees as a condition of employment. These agreements force the employees to arbitrate, rather than litigate, any legal claims arising out of their employment. For employees covered by the National Labor Relations Act, such agreements may impair their rights to engage in concerted activity, since litigation of employment claims is protected by Section 7. Employee rights to file class actions, consolidate claims, and seek broad injunctive relief are concerted actions that are particularly threatened by the move to compelled arbitration. The Article analyzes the impact of arbitration agreements on various forms of …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Activist Insecurity And The Demise Of Civil Rights, John Valery White

Scholarly Works

Civil rights law is today moribund. An impressive edifice, built upon the ruins of Jim Crow, with the blood and sweat of the civil rights movement, and intended to both dismantle that system and ensure the civil liberties that Jim Crow illustrated were all too easily lost, civil rights law was to be the lasting monument of the civil rights struggle. Fortified by this legacy, civil rights law retains a symbolic value, implying that there are formidable forces working to protect citizens from abusive state action, to ensure a broad anti-discrimination ethic, and to fix the wrongs of Jim Crow. …

Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman

Articles, Book Chapters, & Popular Press

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were …

Litigation Narratives: Why Jensen V. Ellerth Didn't Change Sexual Harassment Law, But Still Has A Story Worth Telling, Melissa Hart

Publications

No abstract provided.

Foreward: Is Civil Rights Law Dead?, John Valery White

Scholarly Works

This forward to The Louisiana Law Review’s Spring 2003 Symposium on civil rights presents a hypothetical that highlights the perils of civil rights litigation.

From Equity To Adequacy: The Legal Battle For Increased State Funding Of Poor School Districts In New York, Brian J. Nickerson, Gernard M. Deenihan

Fordham Urban Law Journal

This Article evaluates the influence of federal courts' school finance cases on the New York school finance groups' decision to litigate in the New York courts. It then analyzes the importance of other states' legal precedents in school finance cases as a factor influencing interest groups in New York to challenge the state's public education funding formulas. This Article discusses the progression of public elementary and secondary school funding formula litigation in New York, focusing on the legal arguments raised by various interest group-plaintiffs and tracing the development of those arguments to school finance cases in other states. The conclusion …

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

Journal Articles

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 final regulations …

The Diligent Prosecution Bar To Citizen Suits: The Search For Adequate Representation, Peter A. Appel

Scholarly Works

To ensure that citizen suits assist but do not replace or overshadow government enforcement actions, all environmental statutes which authorize citizen suits bar such suits in certain circumstances. This short Article examines the relatively narrow but important problems created by one such bar, namely the statutory bar on a citizen suit if the federal or state government is “diligently prosecuting” an action against the same violator. The requirement that a governmental prosecution be diligent protects against two types of undesirable situations. On the one hand, the diligent prosecution bar prevents citizens from bringing simple “me too” actions. One would not …

A Compromise Approach To Compromise Verdicts, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Although one of the legal system’s most salient attributes is its insistence that a civil jury choose the story of one party over that of another, scholars have thus far paid almost no attention to the possibility of replacing the preponderance-of-the-evidence rule with an alternative that is not “winner-take-all.” This Article focuses on the issue of uncertainty about what the defendant did or whether the plaintiff was injured, offering an alternative to the extremes of all-or-nothing and compromise verdicts. It considers the possibility that, while sometimes an all-or-nothing verdict is appropriate, at other times a compromise verdict would be better. …

Accountants' Accountability To Nonclients In Texas., Jessica P. Gomez

St. Mary's Law Journal

This Comment proposes that accountants be held liable to any foreseeable user of their work product to ensure the deterrence of negligence on their part. Currently, the three main common law theories concerning whether nonclients can sue accountants for negligence are: (1) the privity rule; (2) the Restatement (Second) of Torts § 552; and (3) the foreseeability standard. Many states follow the Restatement approach entitled “Information Negligently Supplied for the Guidance of Others.” Texas imposes liability on accountants but fails to extend protections to third parties who rely upon the accuracy of financial statements. Further, Texas liability does not expose …

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …

Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer

Faculty Scholarship

It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak …

The Market For Contingent Fee-Financed Tort Litigation: Is It Price Competitive?, Lester Brickman

Articles

Tort liability has undergone an enormous expansion in the past 40 years. So too has the effective hourly rate obtained by plaintiff lawyers which has increased well over 1000% in that time frame (adjusted for inflation). That the enormous increases in effective hourly rates parallel the enormous expansion in tort liability raises a number of issues. In this article, I examine one of them: whether the market for contingent fee-financing of tort litigation is price competitive. To do so, I examine certain indicia of a noncompetitive market including the fact of uniform pricing, the absence of economic justification for uniform …

Recovering Costs Of Litigation As A Liquidation Expense, Adrian Walters

Adrian J Walters

No abstract provided.