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Articles 181 - 210 of 314

Full-Text Articles in Litigation

D Is For Digitize: An Introduction, James Grimmelmann Jan 2010

D Is For Digitize: An Introduction, James Grimmelmann

Faculty Scholarship

This brief introductory essay reviews the history of D is for Digitize conference on the Google Books settlement and provides an overview of the seven articles in the symposium issue.


Procedures For Public Law Remediation In School-To-Prison Pipeline Litigation: Lessons Learned From Antoine V. Winner School District, Catherine Y. Kim Jan 2010

Procedures For Public Law Remediation In School-To-Prison Pipeline Litigation: Lessons Learned From Antoine V. Winner School District, Catherine Y. Kim

Faculty Scholarship

No abstract provided.


Fee Shifting In Litigation: Survey And Assessment, Avery W. Katz, Chris William Sanchirico Jan 2010

Fee Shifting In Litigation: Survey And Assessment, Avery W. Katz, Chris William Sanchirico

Faculty Scholarship

Should the party who loses in litigation be forced to pay the legal fees of the winner? This paper surveys the economic literature regarding the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on …


Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr. Jan 2010

Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr.

Faculty Scholarship

Both Europe and the United States are rethinking their approach to aggregate litigation. In the United States, class actions have long been organized around an entrepreneurial model that uses economic incentives to align the interest of the class attorney with those of the class. But increasingly, potential class members are preferring exit to voice, suggesting that the advantages of the U.S. model may have been overstated. In contrast, Europe has long resisted the United States's entrepreneurial model, and the contemporary debate in Europe centers on whether certain elements of the U.S. model – namely, opt-out class actions, contingent fees, and …


The Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron Jan 2010

The Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron

Faculty Scholarship

No abstract provided.


The Economics Of Public Nuisance Law And The New Enforcement Actions, Keith N. Hylton Jan 2010

The Economics Of Public Nuisance Law And The New Enforcement Actions, Keith N. Hylton

Faculty Scholarship

In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.


Response: Anti-Discrimination Law In Peril?, Trina Jones Jan 2010

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.


Balancing Of Markets, Litigation And Regulation, Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin, Todd J. Zywicki Jan 2010

Balancing Of Markets, Litigation And Regulation, Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin, Todd J. Zywicki

Faculty Scholarship

In addition to judicial education programs that the Law and Economics Center conducts, we also have a division that focuses on public policy research, known as the Searle Civil Justice Institute. In November, we held a public policy roundtable where we commissioned a variety of research and brought together a group of experts, both academic and practitioner experts, to discuss the issue of balancing the appropriate roles of markets, litigation, and regulation. And the notion there is that each one - markets, litigation, and regulation - can and probably should play a role in addressing various consumer harms.


Uncertainty And The Advantage Of Collective Settlement Symposium: The Limits Of Predictability And The Value Of Uncertainty: Sixteenth Annual Clifford Symposium On Tort Law And Social Policy, Howard M. Erichson Jan 2010

Uncertainty And The Advantage Of Collective Settlement Symposium: The Limits Of Predictability And The Value Of Uncertainty: Sixteenth Annual Clifford Symposium On Tort Law And Social Policy, Howard M. Erichson

Faculty Scholarship

Judgments are printed in black and white; reality comes in shades of gray. The settlement palette available to negotiating parties, unlike the adjudication palette available to judges and juries, offers a range of grays to suit the realities of uncertain liability, uncertain causation, and uncertain damages. Settlement thus offers certain advantages over adjudication. I am not referring to process advantages, such as speed, economy, privacy, and relationship preservation. Rather, I am referring to the idea that settlements may offer outcomes that more accurately comport with justice under the relevant facts and law. There is, of course, a long-running debate over …


If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr. Jan 2010

If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.

Faculty Scholarship

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.


The Decision Of The Corporate Special Litigation Committees: An Empirical Investigation, Minor Myers Oct 2009

The Decision Of The Corporate Special Litigation Committees: An Empirical Investigation, Minor Myers

Faculty Scholarship

No abstract provided.


Manufacturers' Liability For Defective Product Designs: The Triumph Of Risk-Utility, Aaron D. Twerski, James A. Henderson, Jr. Apr 2009

Manufacturers' Liability For Defective Product Designs: The Triumph Of Risk-Utility, Aaron D. Twerski, James A. Henderson, Jr.

Faculty Scholarship

No abstract provided.


Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee Jan 2009

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

Faculty Scholarship

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …


Federal Criminal Litigation In 20/20 Vision, Susan Herman Jan 2009

Federal Criminal Litigation In 20/20 Vision, Susan Herman

Faculty Scholarship

No abstract provided.


My Lawyer Told Me To Say I'M Sorry: Lawyers, Doctors, And Medical Apologies, Peter B. Knapp Jan 2009

My Lawyer Told Me To Say I'M Sorry: Lawyers, Doctors, And Medical Apologies, Peter B. Knapp

Faculty Scholarship

The role of apologies in litigation has received a great deal of attention in the last ten years. This is particularly true of “medical apologies,” those expressions of regret and, in some cases, admissions of responsibility made by health care professionals. Two recent trends have prompted examination of medical apologies. First, widely reported empirical studies suggest that patients and their families may be less likely to bring malpractice lawsuits following adverse outcomes if treating physicians have apologized. Second, over about the past ten years, two-thirds of the states have adopted statutes that exclude these apologies from evidence if there is …


Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue Jan 2009

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Faculty Scholarship

Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.


Wanting The Truth: Comparing Prosecutions Of Investigative And Institutional Deception, Lisa Kern Griffin Jan 2009

Wanting The Truth: Comparing Prosecutions Of Investigative And Institutional Deception, Lisa Kern Griffin

Faculty Scholarship

Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses—including the standards for prosecution, the perceived victim, and the purposes of bringing charges—suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in …


The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos Jan 2009

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.


Negligence Per Se And Res Ipsa Loquitur: Kissing Cousins, Aaron D. Twerski Jan 2009

Negligence Per Se And Res Ipsa Loquitur: Kissing Cousins, Aaron D. Twerski

Faculty Scholarship

No abstract provided.


Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones Jan 2009

Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones

Faculty Scholarship

Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change—albeit on a different trajectory—as …


Public Ownership. Firm Governance, And Litigation Risk, Eric L. Talley Jan 2009

Public Ownership. Firm Governance, And Litigation Risk, Eric L. Talley

Faculty Scholarship

Many going-private transactions are motivated – at least ostensibly – by the desire to escape the burdens and costs of public ownership. Although these burdens have many purported manifestations, one commonly cited is the risk of litigation, which may be borne both directly by the firm and/or its fiduciaries or reflected in director and officer insurance premia funded at company expense. An important issue for the "litigation risk" justification of privatization is whether alternative (and less expensive) steps falling short of going private – such as governance reforms – may augur sufficiently against litigation exposure. In this Article, I consider …


Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler Jan 2009

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …


Balancing The Pleading Equation, Paul Stancil Jan 2009

Balancing The Pleading Equation, Paul Stancil

Faculty Scholarship

Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior. Given that, a liberal pleading standard may be sensible; overly demanding pleading standards may ultimately deny justice to worthy plaintiffs who cannot know critical details of their claims before filing.

But informational asymmetry is sometimes counterbalanced by a competing cost asymmetry. In certain circumstances, the cost of litigation is radically different for plaintiffs and defendants. The primary driver of this disparity is liberal discovery; in certain kinds of cases - consumer antitrust cases, for example: defendants' …


Ethically Representing A Lying Cooperator: Disclosure As The Nuclear Deterrent, Bruce A. Green Jan 2009

Ethically Representing A Lying Cooperator: Disclosure As The Nuclear Deterrent, Bruce A. Green

Faculty Scholarship

No abstract provided.


Do Differences In Pleading Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, James D. Cox, Randall S. Thomas, Lynn Bai Jan 2009

Do Differences In Pleading Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, James D. Cox, Randall S. Thomas, Lynn Bai

Faculty Scholarship

No abstract provided.


Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang Jan 2009

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …


Trouble With All-Or-Nothing Settlements, The Symposium: Aggregate Justice: Perspectives Ten Years After Amchem And Ortiz, Howard M. Erichson Jan 2009

Trouble With All-Or-Nothing Settlements, The Symposium: Aggregate Justice: Perspectives Ten Years After Amchem And Ortiz, Howard M. Erichson

Faculty Scholarship

When defendants settle litigation involving multiple plaintiffs, they often insist that they will settle only if they obtain releases from all or nearly all of the plaintiffs in the group. If a defendant is going to spend money to resolve claims, it prefers to take its hit and move on. As one experienced settlement administrator puts it, when a defendant approaches plaintiffs' lawyers to discuss the settlement of a mass dispute, the "subject might be broached in various terms, [but] the underlying message is the same-'How much will it cost us to get out of all of these cases?" A …


Asbestos Achievements, Anita Bernstein Jan 2008

Asbestos Achievements, Anita Bernstein

Faculty Scholarship

No abstract provided.


Hedonic Adaptation And The Settlement Of Civil Lawsuits, John Bronsteen, Christopher J, Buccafusco, Jonathan S. Masur Jan 2008

Hedonic Adaptation And The Settlement Of Civil Lawsuits, John Bronsteen, Christopher J, Buccafusco, Jonathan S. Masur

Faculty Scholarship

This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that …


When Should A Case Be Dismissed? The Economics Of Pleading And Summary Judgment Standards, Keith N. Hylton Jan 2008

When Should A Case Be Dismissed? The Economics Of Pleading And Summary Judgment Standards, Keith N. Hylton

Faculty Scholarship

This paper applies a simple economic framework to the choice between pleading and summary judgment as points at which a claim can be dismissed. It concludes generally that pleading standards should vary with the evidentiary demands of the associated legal standards and the social costs of litigation. The common law's imposition of higher pleading standards for fraud claims is consistent with this proposition. The theory implies that the rigorous summary judgment standards that have been developed by antitrust courts should lead to a correspondingly rigorous assessment at the pleading stage.