Law Commons^™

Agency Costs And The False Claims Act, David Farber

Fordham Law Review

The False Claims Act represents the U.S. Justice Department’s most effective tool in detecting, punishing, and deterring fraud against the government. The effectiveness of the False Claims Act is due in large part to the law’s qui tam provisions, which provide a private right of action to whistleblowers who may sue fraudsters on behalf of the government in exchange for a percentage of the recovery. The resulting relationship between the government and whistleblowers has led to increased detection and recoveries from corporate defendants who defraud and abuse government programs.
However, these whistleblower provisions also come with social costs where profit-motivated …

Auctioning Class Settlements, Jay Tidmarsh

William & Mary Law Review

Although class actions promise better deterrence at a lower cost, they are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class—the class representative and class counsel—advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class action reform proposals.

This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea is …

Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon

Articles

This article presents the first systematic theoretical and empirical study of highlow agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before trial, constrains any plaintiff’s recovery to a specified range. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing mutually beneficial speculation. Using claims data from a national insurance company, …

Claim Funders And Commercial Claim Holders: A Common Interest Or A Common Problem?, Michele M. Destefano

Articles

Commercial claim funding, where funders invest in business disputes in exchange for a percentage of any eventual settlement or judgment, is a growing industry in the United States. Funders may request confidential information about the claim and litigation strategy both before deciding to invest (to analyze the strength of the claim) and during the course of the financial relationship (to manage the investment). Further, these funders may work and communicate with claim holders and lawyers about the claim. However, there has been little caselaw and little in-depth analysis on whether--and in what circumstances-the attorney--client privilege and work-product doctrine can be …

Why Julie Bishop Is Wise Not To Judge Israeli Settlements Illegal, Gregory L. Rose

Faculty of Law, Humanities and the Arts - Papers (Archive)

There was once consensus that the earth is flat. Similarly, the international legal situation of Israeli settlements is flatly said to be criminal. The truth is different and more complex.

Ben Saul’s recent article on the “dirty politics of Israel’s criminal colonial enterprise” was passionate in its hostility to Israeli settlements but its legal arguments were lacklustre. He declared the existence of 50 years of consensus among the United Nations General Assembly, Security Council and the International Court of Justice concerning the illegality of the settlements, but there has never been such a thing.

Urban construction by Israelis in the …

Morphing Case Boundaries In Multidistrict Litigation Settlements, Margaret Thomas

Margaret S. Thomas

The boundaries of federal multidistrict litigation (MDL) are blurring, as district courts seek innovative ways to facilitate global settlements to resolve multijurisdictional, multidimensional, national mass torts. The techniques emerging from the district courts have mostly evaded appellate review and received little scholarly attention, but they raise important challenges to traditional understandings of the nature of MDL and complex litigation. This Article argues that factually similar cases proceeding in multiple court systems in mass tort disputes create a “federalism problem” for global settlements: global settlements typically benefit from oversight by a single judge, but often there is no single judge who …