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Full-Text Articles in Law

The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder Dec 2023

The Problem With The “Non-Class” Class: An Urgent Call For Improved Gatekeepers In Merger Objection Litigation, Josh Molder

Fordham Journal of Corporate & Financial Law

Until recently, class actions dominated merger objection litigation. However, plaintiff’s lawyers have constructed a “non-class” class where an individual suit can benefit from the leverage of a certified class without ever meeting the stringent class certification requirements of Federal Rules of Civil Procedure 23. This new development has initiated a shift in merger objection litigation where plaintiffs are increasingly filing individual suits instead of class actions. However, this shift has left shareholders vulnerable to collusive settlements because plaintiff’s attorneys have significant control over these suits and a strong incentive to settle quickly for a substantial fee. Additionally, corporate defendants are …


Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet Oct 2023

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Articles

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …


Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet Oct 2023

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Faculty Scholarship

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …


Mutual Optimism And Risk Preferences In Litigation, Keith N. Hylton Sep 2023

Mutual Optimism And Risk Preferences In Litigation, Keith N. Hylton

Faculty Scholarship

Why do some legal disputes fail to settle? From a bird’s eye view, the literature offers two categories of reasons. One consists of arguments based on informational disparities. The other consists of psychological arguments. This paper explores the psychological theory. It presents a model of litigation driven by risk preferences and examines the model’s implications for trials and settlements. The model suggests a foundation in Prospect Theory for the Mutual Optimism model of litigation. The model’s implications for plaintiff win rates, settlement patterns, and informational asymmetry with respect to the degree of risk aversion are examined.


Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck Jan 2023

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Articles in Law Reviews & Other Academic Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …


Against Settlement In Transnational Business And Human Rights Litigation, Hassan M. Ahmad Jan 2023

Against Settlement In Transnational Business And Human Rights Litigation, Hassan M. Ahmad

All Faculty Publications

In Against Settlement, Owen Fiss argued that settlement may not always be the optimal result of civil suits, particularly those that involve novel or ambiguous areas of law or ostensible power imbalances. That work spurred a range of scholarship around the merits and demerits of settlement. And although the settlement versus litigation debate is now almost four decades old, its currency persists in common law systems in which courts are, at times, called upon to expand or even re-envision doctrines or procedural rules. This article revisits that debate. It applies Against Settlement to transnational business and human rights litigation that …


The Roles Of The Creditor And Debtor In The Settlement Process Of The Debtor's Financial Obligations Under The Debtor's Insolvency Law No. 19 Of 2019, Pierre Mallet Dr. Nov 2022

The Roles Of The Creditor And Debtor In The Settlement Process Of The Debtor's Financial Obligations Under The Debtor's Insolvency Law No. 19 Of 2019, Pierre Mallet Dr.

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The UAE Cabinet approved a federal law to regulate cases of insolvency of natural persons or individuals. In 2016, the UAE government had adopted a similar insolvency law for companies which was widely welcomed by businesses and financial institutions. The legal framework for insolvency for both companies and individuals are expected to improve the competitiveness and the ease of doing business of the UAE. Debt restructuring for individuals under legal protection is widely seen as a great step forward in helping those who are unable to pay their debts from going bankrupt. “The approval of a new federal law to …


Managing Mass Tort Class Actions: Judicial Politics And Rulemaking In Three Acts, Toby S. Goldbach Nov 2022

Managing Mass Tort Class Actions: Judicial Politics And Rulemaking In Three Acts, Toby S. Goldbach

University of Miami Law Review

Judges take part in a variety of non-adjudicative tasks that shape the structure of litigation. In addition to their managerial functions, judges sit as administrative heads of court. They participate in civil justice reform projects and develop procedures for criminal and civil trials. What norms and principles ought to guide judges in this other work? In their casework we expect judges to be neutral and fair, setting aside politics and rationally following the law. Indeed, this article will demonstrate that there is good reason to insist on these qualities in both judges’ case-related and broader court-related reform activities. To test …


Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs May 2022

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.


Foreign Antisuit Injunctions And The Settlement Effect, Connor Cohen Apr 2022

Foreign Antisuit Injunctions And The Settlement Effect, Connor Cohen

Northwestern University Law Review

International parallel proceedings, which are concurrent identical or similar lawsuits in multiple countries, often ask courts to balance efficiency and fairness against the speculative fear of insulting foreign nations. Some litigants abuse foreign duplicative litigation to exhaust their opponents’ resources and pressure them into settling out of court. This Note provides the first empirical evidence of such abuse of international parallel proceedings: when courts deny motions to enjoin foreign parallel litigation, the settlement rate rises significantly. Considering the results of this empirical project and its limitations, I encourage future studies on international parallel proceedings and settlement. I also argue for …


Confidential Settlements For Professional Malpractice, Sande L. Buhai Apr 2022

Confidential Settlements For Professional Malpractice, Sande L. Buhai

St. John's Law Review

(Excerpt)

A lawyer representing a plaintiff in a professional malpractice case advises her client not to file a complaint with the state regulatory body—the state bar, the medical board, or some other pertinent body—until later. The lawyer explains that she can offer to settle the case more favorably, more quickly, and at lower cost if they promise that, as part of the settlement, defendant’s malfeasance will never be reported to the state regulatory body responsible for ensuring professional competence in the area. This tactic may allow the client to negotiate a larger settlement because the defendant should be willing to …


Settling Claims For Reparations, Daniel Butt Jan 2022

Settling Claims For Reparations, Daniel Butt

Journal of Race, Gender, and Ethnicity

The scale and character of past injustice can seem overwhelming. Grievous wrongdoing characterizes so much of human history, both within and between different political communities. This raises a familiar question of reparative justice: what is owed in the present as a result of the unjust actions of the past? This article asks what should be done in situations where contemporary debts stemming from past injustice are massive in scale, and seemingly call for nonideal resolution or settlement. Drawing on recent work by Sara Amighetti and Alasia Nuti on deliberative reparative processes, the article differentiates between two different approaches to settling …


Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams Jan 2022

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …


Vacatur Pending En Banc Review, Ruby Emberling Dec 2021

Vacatur Pending En Banc Review, Ruby Emberling

Michigan Law Review

When a case becomes moot on appeal, as when the parties settle, two primary Supreme Court cases guide the appellate court’s decision about whether to vacate the lower-court opinion. The Court has said that vacatur, an equitable remedy, promotes fairness to parties who were not responsible for the mootness because it erases adverse legal outcomes the litigants were prevented from appealing. Beyond this, vacatur is inadvisable since it eliminates precedential decisions and harms the judiciary’s efficiency and legitimacy. Yet this doctrinal order has not been uniformly brought to bear on the highly similar question of whether to vacate when a …


The Roles Of The Creditor And Debtor In The Settlement Process Of The Debtor's Financial Obligations Under The Debtor's Insolvency Law No. 19 Of 2019, Pierre Mallet Jun 2021

The Roles Of The Creditor And Debtor In The Settlement Process Of The Debtor's Financial Obligations Under The Debtor's Insolvency Law No. 19 Of 2019, Pierre Mallet

UAEU Law Journal

The UAE Cabinet approved a federal law to regulate cases of insolvency of natural persons or individuals. In 2016, the UAE government had adopted a similar insolvency law for companies which was widely welcomed by businesses and financial institutions. The legal framework for insolvency for both companies and individuals are expected to improve the competitiveness and the ease of doing business of the UAE. Debt restructuring for individuals under legal protection is widely seen as a great step forward in helping those who are unable to pay their debts from going bankrupt. “The approval of a new federal law to …


Appraising Problems, Not Stuff, Chad J. Pomeroy May 2021

Appraising Problems, Not Stuff, Chad J. Pomeroy

St. Mary's Law Journal

Abstract forthcoming.


Legal System For Settlement Of Financial Equipment In Administration Contracts Under Algerian Ublie Bargains Law Of 1991, Revised- النظام القانوني لدفع المقابل المالي في العقد الإداري Apr 2021

Legal System For Settlement Of Financial Equipment In Administration Contracts Under Algerian Ublie Bargains Law Of 1991, Revised- النظام القانوني لدفع المقابل المالي في العقد الإداري

UAEU Law Journal

The researcher extensively details in Chapter I the right to receive financial equivalent in administrative contracts pointing to its origin and legal nature. In Chapter II he talks about the Admin. liability to comply with due dates, the possibility of activating its contractual obligations, demonstrating the Algerian 1991 public transactions law stipulations in comparison with French & Egyptian laws, indicating similarities & contradictions.

The researcher ended his research with his conclusion. & comments on the above - mentioned law.


Settlement Of Non-Muslim Minorities' Disputes In The Islamic State, Mansour Al-Haidari Feb 2021

Settlement Of Non-Muslim Minorities' Disputes In The Islamic State, Mansour Al-Haidari

UAEU Law Journal

This paper is introduced with a brief introduction on how different legal systems in the past dealt with religious minorities' disputes. Moreover, it shows how different US states were proposing bills and acts to eliminate any religious-based laws or applications. The paper presents how different Islamic schools deal with religious minorities' disputes in the Islamic State. It shows Islamic legal system's tolerance toward minorities in different aspects such as giving their religious leaders a role in solving their disputes according to their religion, and allowing them more freedom in their personal law issues such as marriage, divorce, wills and estates, …


Standing To Challenge Bankruptcy Court’S Approval Of Retiree Benefits Settlement, Inkook Choi Jan 2021

Standing To Challenge Bankruptcy Court’S Approval Of Retiree Benefits Settlement, Inkook Choi

Bankruptcy Research Library

(Excerpt)

Section 1114 of title 11 of the United States Code (the “Bankruptcy Code”) provides in relevant part that: “the debtor in possession shall timely pay and shall not modify any retiree benefits” unless “the court, on the motion of the [debtor] or authorized representative [of the retirees,]” orders or the debtor and the authorized representative agree to the modification of such benefits. A bankruptcy court may, after notice and hearing, approve a settlement, including a settlement of retiree benefit claims, under Federal Rule of Bankruptcy Procedure 9019. Consequently, creditors and other parties in interest may voice their views on …


Exploring Alternative Dispute Resolution For Settlement Of Criminal Disputes In Nigeria, Agatha Anulika Okeke Jan 2021

Exploring Alternative Dispute Resolution For Settlement Of Criminal Disputes In Nigeria, Agatha Anulika Okeke

Walden Dissertations and Doctoral Studies

Despite advancements in modern criminal justice administration and its widespread use in criminal justice administration in other parts of the globe, alternative dispute resolution (ADR) was not widely used in Nigeria. A qualitative research method was used, anchored with Bentham’s theory of judicial organization and adjective law, cognitive-behavioral theory, and the reintegrative shaming theory. The purposeful sampling technique, a nonprobability sampling method was used to select 10 participants who were either members of the Bar or of the Bench for the interview sessions. Their responses were transcribed, analyzed, coded, decontextualized, recontextualized, and the meaning units fed into the Nvivo statistical …


Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott Jan 2021

Beyond Plea Bargaining: A Theory Of Criminal Settlement, Richard Lorren Jolly, J.J. Prescott

Articles

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, …


A Path To Data-Driven Health Care Enforcement, Jacob T. Elberg Jan 2021

A Path To Data-Driven Health Care Enforcement, Jacob T. Elberg

Utah Law Review

The Department of Justice (“DOJ”) has a long-stated goal of encouraging companies to engage in what the author refers to as “compliant behaviors”—maintenance of an effective pre-existing compliance program, post-enforcement adoption of an effective compliance program, cooperation with a government investigation, and self-disclosure of misconduct. Substantial DOJ guidance over the past two decades, along with the concrete incentive structure of the United States Sentencing Guidelines, have increasingly made clear to organizations when and how such behaviors will be rewarded in criminal matters. Recently, DOJ has made transparency and clarity regarding the benefit of compliant behaviors a priority in calculating and …


Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill Jul 2020

Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill

Pepperdine Dispute Resolution Law Journal

The classic adjudicatory paradigm of opposing attorneys facing off at trial before a judge and jury in order to receive a favorable judgment is an image long past. Increased litigation volume, and the added time and expense of modern litigation has resulted in a rich practice of judges working to broker settlements between litigants in lieu of formal adjudication. Judicial settlement is the subject of much debate, however, and the diverse range of judicial practice in this area reflects the institutional, ethical, and jurisprudential uncertainties we still have regarding the propriety of judges facilitating settlements. This paper offers a new …


Adversarial Failure, Benjamin P. Edwards Jul 2020

Adversarial Failure, Benjamin P. Edwards

Washington and Lee Law Review

Investors, industry firms, and regulators all rely on vital public records to assess risk and evaluate securities industry personnel. Despite the information’s importance, an arbitration-facilitated expungement process now regularly deletes these public records. Often, these arbitrations recommend that public information be deleted without any true adversary ever providing any critical scrutiny to the requests. In essence, poorly informed arbitrators facilitate removing public information out of public databases. Interventions aimed at surfacing information may yield better informed decisions. Although similar problems have emerged in other contexts when adversarial systems break down, the expungement process to purge information about financial professionals provides …


Law Library Blog (April 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law Apr 2020

Law Library Blog (April 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop Mar 2020

Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival or entrant. Importantly, the firms in such cases generally have asymmetric stakes: the defendant typically has a much larger financial interest on the line. We explore the broad policy implications of this fact using a novel model of litigation with endogenous effort. Asymmetric stakes lead dominant defendants to invest systematically more resources into litigation, causing the plaintiff's success probability to fall below the efficient level--a distortion that carries over to ex ante settlements. We explain that enhanced damages may reduce the problem, but …


The Importance Of Doctor Liability In Medical Malpractice Law: China Versus The United States, Vincent R. Johnson Jan 2020

The Importance Of Doctor Liability In Medical Malpractice Law: China Versus The United States, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Medical malpractice law in China does not work. Disappointed patients and their families, or the gangs they hire, frequently resort to physical violence, beating up doctors and disrupting hospital activities in order to extort settlements. This happens because Chinese law has failed to provide viable remedies to many victims of medical malpractice.

This dysfunctional situation (medical chaos or yinao) has persisted for more than two decades. Today, parents in China discourage their children from attending medical school because practicing medicine is too dangerous.

Reforming Chinese medical malpractice law will be difficult. Many factors contribute to the public’s lack of confidence …


Remedial Payments In Agency Enforcement, Seema Kakade Jan 2020

Remedial Payments In Agency Enforcement, Seema Kakade

Faculty Scholarship

During the Obama Administration, the government settled many enforcement cases involving alleged violations of the nation’s federal statutes. The settlements have several requirements, including that the defendants pay money for beneficial projects to mitigate or offset harm directly or indirectly caused by defendant’s actions. For example, the government settled an environmental enforcement case against Volkswagen that included payments for environmental projects, and a mortgage enforcement case against Bank of America that included payments for housing education projects. These payments have spawned renewed criticism amongst conservative groups who have long claimed that payments for projects are mechanisms for agencies to get …


Inconsistent Standards To Approve A Settlement Under Rule 9019, Zach Benaharon Jan 2020

Inconsistent Standards To Approve A Settlement Under Rule 9019, Zach Benaharon

Bankruptcy Research Library

(Excerpt)

“Settlements and compromises are favored in bankruptcy as they minimize costly litigation and further parties’ interests in expediting the administration of the bankruptcy estate.” In accordance with this policy, Congress promulgated Federal Rule of Bankruptcy Procedure 9019 (the “Bankruptcy Rules”), which governs settlements in a bankruptcy case. Rule 9019 gives a bankruptcy judge discretion to approve a proposed settlement and states in relevant part, that: “[o]n motion by the trustee, the court may approve a compromise or settlement.” Rule 9019 applies to both settlements brought before the court on a standalone basis as well as those presented as part …


Modeling Settlement Bargaining With Algorithmic Game Theory, Michael B. Abramowicz Jan 2020

Modeling Settlement Bargaining With Algorithmic Game Theory, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Past computational models of settlement bargaining have lacked explicit game theoretic foundations. Algorithmic game theory, however, offers techniques that can find perfect Bayesian equilibria even where closed-form mathematical solutions may be intractable. Some recent mathematical models tackle two-sided asymmetric information, including evidentiary signals models, in which the judgment is a sum of both shared and independent private information, and correlated signals models, in which both parties receive noisy signals about the same information. To relax assumptions inherent in these models, this paper employs several progressively more complicated techniques, including iterative elimination of dominated alternatives, no regret learning, and counterfactual regret …