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Articles 91 - 115 of 115
Full-Text Articles in Civil Law
Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky
Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky
Faculty Scholarship
Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …
The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg
The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg
Fordham Urban Law Journal
Civil justice issues – family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors – are part of the fabric of daily life. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey (NCJS) analogous to the National Crime Victimization Survey. The need for information about civil justice issues and …
Connecting Self-Representation To Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, Russell Engler
Connecting Self-Representation To Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, Russell Engler
Fordham Urban Law Journal
Over the past decade, the phenomenon of self-representation in civil cases has led to the development of programs designed to facilitate self-representation. A revitalized movement seeking to establish a civil right to counsel has emerged (civil Gideon, a civil right to counsel based on Gideon v. Wainwright), pressing for the expansion of the availability of counsel for the poor. What are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Part of this question, however, is a research question: …
Higher Demand, Lower Supply? A Comparative Assessment Of The Legal Resource Landscape For Ordinary Americans, Gillian K. Hadfield
Higher Demand, Lower Supply? A Comparative Assessment Of The Legal Resource Landscape For Ordinary Americans, Gillian K. Hadfield
Fordham Urban Law Journal
Systematic efforts to assess the legal landscape for the ordinary citizen - what legal services cost and what fraction of that cost is for real value - have been few and far between. Most studies focus instead on the performance of the legal system for corporate clients or on the delivery of legal services to the poor as a form of charity or welfare assistance. This article reviews and compares the few existing legal needs studies and looks for the macro indicators of the extent to which resources across the economy as a whole are devoted to providing legal inputs …
If We Don't Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.
If We Don't Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.
Fordham Urban Law Journal
This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.
Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight
Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight
Fordham Urban Law Journal
This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes; legal representation may often be critically important in ADR processes. Because many disputes will be finally resolved in ADR and because legal representation can be equally or even more important in ADR than in litigation, we need to focus simultaneously on improving representation in both …
Lawyering In Juvenile Court: Lessons From A Civil Gideon Experiment, Katherine Hunt Federle
Lawyering In Juvenile Court: Lessons From A Civil Gideon Experiment, Katherine Hunt Federle
Fordham Urban Law Journal
To understand how a good lawyering paradigm may nevertheless undermine client empowerment and perpetuate disability, it is necessary to appreciate the larger ethical debate about client autonomy. This Article will examine two dominant models of good lawyering and explore their implications for client choice and lawyer autonomy, with an emphasis on poverty lawyering. The Article then turns to a discussion of the lawyering experience in juvenile court to illustrate the ways in which dominant visions of the client as dependent, incompetent, and disabled affect not only the role and responsibilities of the attorney for the child but the extension of …
Examining The Real Demand For Legal Services, Herbert M. Kritzer
Examining The Real Demand For Legal Services, Herbert M. Kritzer
Fordham Urban Law Journal
Legal needs are real, but can also be virtually open-ended. Studies tell us that 85% of the civil legal needs of low income persons are currently not being met but we have no idea as to what portion of that 85% legal assistance would meaningfully help to resolve those needs, or how the cost of providing that assistance compares to the benefit that would be generated. This article examines extant studies of legal needs, and concludes that there is a need for baseline data to enable us to assess the degree of legal need that takes into account the range …
Nothing For Something? Denying Legal Assistance To Those Compelled To Participate In Adr Proceedings, Stephan Landsman
Nothing For Something? Denying Legal Assistance To Those Compelled To Participate In Adr Proceedings, Stephan Landsman
Fordham Urban Law Journal
The traditional view of the courts in their handling of unrepresented litigants has been that those who proceed pro se must look out for themselves and that there is no constitutional right to receive personal instruction from the trial judge on courtroom procedure. The opposing view, which has received increasing support, is that courts have a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements. This Article explores the treatment of unrepresented litigants in ADR (alternative dispute resolution) settings, contends that …
Access To Justice In A World Without Lawyers: Evidence From Texas Bodily Injury Claims, Charles Silver, David A. Hyman
Access To Justice In A World Without Lawyers: Evidence From Texas Bodily Injury Claims, Charles Silver, David A. Hyman
Fordham Urban Law Journal
Will tort reform capping contingency fees limit plaintiffs' ability to recover for their injuries? If self-representation is a viable option, contingency fees may have less of an impact on access than one might otherwise expect. Conversely, if tort recoveries flow only or mostly to plaintiffs who either actually hire lawyers or can credibly threaten to do so, caps on contingency fees may make it difficult or impossible for many victims to obtain justice. This article explores the issue by looking at patterns of representation among claimants who received payments for bodily injury in Texas during 1988-2005. Over an extended period …
Introduction: 2008 Aba Section Of Litigation Access To Justice Symposium, Robert L. Rothman
Introduction: 2008 Aba Section Of Litigation Access To Justice Symposium, Robert L. Rothman
Fordham Urban Law Journal
The 2008 ABA Section of Litigation conducted a symposium designed to explore the challenges inherent in creation of a civil right to counsel and to generate critical though, dialogue, and scholarship on the subject.
Representation In Mediation: What We Know From Empirical Research, Roselle L. Wissler
Representation In Mediation: What We Know From Empirical Research, Roselle L. Wissler
Fordham Urban Law Journal
This Article first describes the proportion of unrepresented parties in mediation and the policies and practices regarding representation in different mediation contexts. The core of the Article examines the empirical findings on the effect of representation on several dimensions of the mediation process, including the effect on preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party "voice" and participation in mediation, and the tone of the session. In addition, the Article examines the effect of representation on mediation outcomes, including the likelihood of settlement and the fairness of agreements reached. …
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Faculty Scholarship
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …
The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg
The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …
Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan
Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan
Faculty Scholarship
Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved …
Even More Wrongful Death: Statutes Divorced From Reality, John G. Culhane
Even More Wrongful Death: Statutes Divorced From Reality, John G. Culhane
Fordham Urban Law Journal
This Article discusses the restrictions on the class of eligible beneficiaries under most wrongful death statutes and considers recent legislative and judicial initiatives that have begun to change these laws to reflect reality. The Article analyzes the Victim Compensation Fund, passed in response to the events of September 11, 2001 as an example of the ability of legislative and regulatory rules to define eligibility for flexible recovery. The Article goes on to discuss recent legislative and judicial developments involving the torts of negligent infliction of emotional distress and loss of consortium, emphasizing that courts and legislatures are increasingly willing to …
Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan
Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan
Faculty Scholarship
This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …
Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky
Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky
Faculty Scholarship
No abstract provided.
Forgiveness In The Civil Law, Jacqueline Nolan-Haley
Forgiveness In The Civil Law, Jacqueline Nolan-Haley
Fordham Urban Law Journal
A discussion of the role of forgiveness in civil law, specifically relating to bankruptcy. Includes an audience question-and-answer session.
Merciful Damages: Some Remarks On Forgiveness, Mercy And Tort Law, Neal R. Feigenson
Merciful Damages: Some Remarks On Forgiveness, Mercy And Tort Law, Neal R. Feigenson
Fordham Urban Law Journal
This article explores the place of forgiveness and mercy in tort law, describing frequent misgivings about encouraging forgiveness or mercy as part of the substantive or procedural law of torts. Finally, the article suggests a new concept, "merciful damages" which might allow some of the benefits of forgiveness while avoiding or mitigating some common concerns.
Forgiveness In The Civil Law, Jacqueline Nolan-Haley
Forgiveness In The Civil Law, Jacqueline Nolan-Haley
Fordham Urban Law Journal
A discussion of the role of forgiveness in civil law, specifically relating to bankruptcy. Includes an audience question-and-answer session.
Merciful Damages: Some Remarks On Forgiveness, Mercy And Tort Law, Neal R. Feigenson
Merciful Damages: Some Remarks On Forgiveness, Mercy And Tort Law, Neal R. Feigenson
Fordham Urban Law Journal
This article explores the place of forgiveness and mercy in tort law, describing frequent misgivings about encouraging forgiveness or mercy as part of the substantive or procedural law of torts. Finally, the article suggests a new concept, "merciful damages" which might allow some of the benefits of forgiveness while avoiding or mitigating some common concerns.
Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan
Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan
Faculty Scholarship
In this article, Rachel Vorspan investigates the complex role played by the courts in the social and cultural transformation of Victorian England. Through focusing on judicial rulings in the recreational as well as political and industrial contexts she explains how the English judiciary played an important function in "rationalizing" the major institutions and practices of urban leisure
Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan
Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan
Faculty Scholarship
This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative …
Court Appointment Of Attorneys In Civil Cases: The Constitutionality Of Uncompensated Legal Assistance Note, Bruce A. Green
Court Appointment Of Attorneys In Civil Cases: The Constitutionality Of Uncompensated Legal Assistance Note, Bruce A. Green
Faculty Scholarship
Whether an individual becomes a party to judicial proceeding involuntarily, as a criminal or civil defendant, or voluntarily, as a civil plaintiff seeking redress of an injury, the assistance of counsel will increase his chances for a favorable disposition. When an impecunious litigant is unable to retain counsel, the question arises of who must bear the burden created by the complexity of adjudication. Although the Supreme Court has been sympathetic to the need for counsel in criminal cases, an indigent litigant in civil cases often will be denied legal assistance, and therefore will bear the burden himself In other instances, …