Litigation Commons^™

The Editorial Board's Stories Of War And Recovery, Rachelle Navarro, Edna Epstein, Kristin Bender, Leonard Niehoff, Rahul Agarwal, Dennis Raglin, Margaret Mckeown

Articles

What follows are real-world experiences my fellow editors at Litigation journal shared with me. As much as misery loves company, we litigators love war stories more and, boy, do we have some! They show us that, when faced with unexpected catastrophes, we have only one option: Get to work. Do the math. Solve the problem. And then solve the next one.

Unspeakable Objections: Recovering From The Tricks And Traps Of Rule 30(C)(2), Leonard Niehoff, Shannon Hickey

Articles

The boundary between a proper “working” objection and an improper “speaking” objection under Federal Rule of Civil Procedure 30(c)(2) turns out to be less discernible and more mysterious than we might like. It’s certainly less plain than some lawyers believe and some judges have suggested. We all need a better understanding of how and why the business of making objections at depositions can get complicated under the terms of this rule.

Fee-Shifting Shortcuts, Maureen Carroll

Articles

Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant.

This …

Perttu V. Richards: Brief Of Law Professors As Amici Curiae In Support Of Respondent, Margo Schlanger

Appellate Briefs

Amici are professors of law who have studied, taught, and written about prisoner litigation and about rights to jury trials. They submit this brief to share their views, based on that experience, on the proper interpretation of the Prison Litigation Reform Act) in light of the important jury trial rights at stake and the practical realities of prisoner litigation.

Crossing The Rubicon: Assembling A Litigation Colossus In Mass Torts, Samir D. Parikh

Michigan Law Review Online

In 2021, Arizona created the alternative business structure (ABS), which allows nonattorneys to own a firm that provides legal services and actively participate in firm management. Scholars have argued that this new paradigm will erode the attorney-client relationship. This represents a legitimate concern. Conflict- ing fiduciary duties can complicate key moments in case resolution. But the impact of Arizona’s shift is more seismic. The true threat does not involve nonattorneys owning a law firm but, rather, private equity firms vertically in- tegrating the entire mass-tort machinery. The endgame is a litigation colossus that rolls up law firms, marketers, claim aggregators, …

Let's Break Some Rules: Immodest Proposals For Evidence Reform, Len Niehoff

Articles

In 1975, when the American Bar Association launched LITIGATION, its editors dedicated the entirety of one of the journal's first issues to evidence. Authors included distinguished practitioners, respected judges, and academic giants like Margaret A. Berger, Irving Younger, and Jim McElhaney. Subjects varied, but the articles shared a common sensibility: The recently adopted Federal Rules of Evidence were a good thing.

Understanding Federal Rule Of Evidence 104(B) On Building Walls And Missing Bricks, Len Niehoff, Shannon Hickey

Articles

We use individual pieces of evidence to construct our cases, recognizing that no one of them, taken in isolation, suffices to get the job done. As Professor McCormick famously said of evidence, “a brick is not a wall.” Federal Rule of Evidence 104(b) explains the logical relationship between those various pieces of evidence and how they help us build our proofs. Or perhaps we should say that the rule tries to explain it, without much success.

Gregory, Textualism, And Tax Shelters, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah suggests that courts should adopt a consequentialist approach to tax shelter litigation that would acknowledge the long- term risks of enabling tax shelters and seek to prevent their recurrence. In his excellent article on Gregory v. Helvering, David Elkins says that the common assumption that the case was about abuse of the tax-free reorganization provisions of the code is mistaken. Therefore, he argues, both Judge Learned Hand and the Supreme Court were wrong when they focused on whether the transaction was a “reorganization” as intended by Congress. Instead, they should have …

Standalone Municipal Liability, Avery Figo Comar

Michigan Law Review

Under Monell v. Department of Social Services, municipalities may not be held liable for constitutional violations attributable to an errant employee’s actions. Instead, Monell dictates that municipal liability is appropriate only when the municipality itself is “the moving force” behind the constitutional violation. The Fourth and Fifth Circuits, based on a flawed reading of the Supreme Court case City of Los Angeles v. Heller, adopt an inapposite approach to the relationship between municipal and individual liability. Although every other circuit allows municipal claims to proceed absent any individual claim arising from the same underlying facts, the Fourth and …

Intellectual Property Liability For Businesses In The Age Of Ai: What New Liabilities Businesses Using Ai Could Face And The Possible Methods Of Self-Protection, Elizabeth Anne Henderson

Michigan Business & Entrepreneurial Law Review

The invention of Artificial Intelligence (“AI”) has triggered a wave of copyright and trademark litigation that will likely shape the intellectual property laws governing AI for the foreseeable future. Lawsuits against AI giants like Meta and OpenAI stand to declare popular uses of AI as actionable infringement as well as possibly reshape how copyright and trademark law view concepts, such as fair use and derivative works in the age of technology. Meanwhile, businesses are pushing forward rapidly with adopting AI and implementing its use in everyday functions. For many of these businesses, AI is a highly desirable but poorly understood …

Paying For Performance? Attorneys' Fees In Fraud Class Actions, Stephen J. Choi, Jessica M. Erickson, Adam C. Pritchard

Articles

This paper studies whether plaintiffs' lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

There Is No Helpful General Rule About Appealing Dismissals Without Prejudice, Bryan Lammon

Michigan Law Review Online

With some frequency, courts wrestle with whether litigants can appeal after dismissal without prejudice. But there is no helpful general rule to answer this question. That’s because the without-prejudice designation is more or less irrelevant to whether the dismissal is a final, appealable decision. In this Essay, I show that the nature of the underlying dismissal— what the dismissal did, not its without-prejudice nature—is what matters for appealability. Courts would do well to ignore whether an action was dismissed without prejudice when it comes to determining appealability.

Curbing Private Enforcement Of The Voting Rights Act: Thoughts On Recent Developments, Ellen D. Katz

Michigan Law Review Online

For decades, private plaintiffs have brought claims to enforce key provisions of the Voting Rights Act (VRA). Recent decisions have tossed out these claims on the ground that enforcement authority lies solely with the Attorney General of the United States. These decisions are deeply flawed. The VRA’s text and structure, history, precedent, and longstanding practice all support private enforcement of the VRA—including private enforcement of Sections 2 and 11(b). This Essay explains why.

Paying For Performance? Attorneys’ Fees In Securities Fraud Class Actions, Stephen J. Choi, Jessica M. Erickson, A. C. Pritchard

Law & Economics Working Papers

This Article studies whether plaintiffs' lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

The Mismatched Goals Of Bankruptcy And Mass Tort Litigation, Maureen Carroll

Reviews

By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the …

On Behalf Of All Others Similarly Situated: Class Representation & Equitable Compensation, Alexander J. Noronha

Michigan Law Review

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation.

The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh …

Why Did The Irs Win? A Remarkable Year In Tax Litigation, Part 2, Reuven S. Avi-Yonah

Articles

In my previous column, 2023 was a remarkably good year for government litigators in tax cases. That column focused on two transfer pricing cases (3M and Coca-Cola). This column will focus on two other government victories (YA Global and Liberty Global).

The Class Counsel Draft Gender Gap: An Analysis Of Class Counsel Applicants, Alissa Del Riego

Michigan Journal of Gender & Law

This Article accomplishes three important and distinct objectives. First, it provides an updated window into the class counsel gender gap. Second, and most critically, it analyzes a to date unexamined data point—MDL class counsel applications. And third, based on its analysis of the data gathered, it demonstrates: (1) female class counsel application rates are correlated with appointment rates and (2) gender equal class counsel applicants’ success rate, suggesting courts are not discriminating against female class counsel applicants. Instead, the class counsel gender gap appears to be a product of the class counsel draft gender gap. To narrow the gap, more …

Is You Is Or Is You Ain’T My Client? Navigating The Mysteries Of Prospective And Organizational Representation, Leonard Niehoff

Articles

Many years ago, I was trying a civil case that had stretched on for weeks in a federal court in Detroit. The counsel tables for both parties were covered with briefs, coffee cups, memoranda, books, water pitchers, examination outlines, yellow writing pads, and all the other litter that inevitably piles up during long trials. It appeared that we had moved in, just as at our actual homes it appeared that we had moved out.

A Law At War With Itself: Character Evidence And The Doctrine Of Chances, Len Niehoff, Shannon Hickey

Articles

Certain legal principles have raging within them a kind of civil war. Important but abstract policy concerns pull the doctrine in one direction; common sense and practical experience pull it in another. Casualties ensue.

Perhaps no body of legal doctrine better exemplifies this sort of internal conflict than the general ban on character evidence, as embodied in Federal Rule of Evidence 404(a)(1). That rule states: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait.” The rule has deep roots in the …