Litigation Commons^™

Litigation & Professional Responsibility: Is Overlawyering Overtaking Democracy?, David M. Schizer

Faculty Scholarship

Welcome everyone. We're going to get started. I'm David Schizer, the Dean of Columbia Law School. I'm here to moderate the panel, and our panel's title is, of course, "Is Overlawyering Overtaking Democracy?"

Now, as the moderator I get to ask questions, and I'm going to start with a question of the audience. My question is, aside from me, how many people here have seen Jerry Seinfeld's new animated movie, Bee Movie? I've a six-year-old daughter, which explains why I did – okay, a couple of people. For the rest of the audience's benefit, I should tell you the …

There Are Plaintiffs And … There Are Plaintiffs: An Empirical Analysis Of Securities Class Action Settlements, James D. Cox, Randall S. Thomas, Lynn Bai

Faculty Scholarship

In this paper, we examine the impact of the PSLRA and more particularly the impact the type of lead plaintiff on the size of settlements in securities fraud class actions. We thus provide insight into whether the type of plaintiff that heads the class action impacts the overall outcome of the case. Furthermore, we explore possible indicia that may explain why some suits settle for extremely small sums - small relative to the "provable losses" suffered by the class, small relative to the asset size of the defendant-company, and small relative to other settlements in our sample. This evidence bears …

The Vioxx Litigation: Two Case Studies, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Does Being A Repeat Player Make A Difference? The Impact Of Attorney Experience And Case-Picking On The Outcome Of Medical Malpractice Lawsuits, Catherine T. Harris, Ralph Peeples, Thomas B. Metzloff

Faculty Scholarship

We begin with Galanter's suggestion that attorneys who are "repeat players" in a specific area of litigation have an advantage over those who are not. Using a combination of data sources we analyze the impact of attorney experience and case characteristics on case outcome of 348 North Carolina medical malpractice lawsuits. We add the insurers' evaluation of liability to the analysis in a limited number of cases (n=72). While plaintiffs' attorney's medical malpractice case experience had an impact, we argue that this must be understood in the context of the plaintiffs' attorney's ability to pick cases in which the insurers' …

Battle Of The Branches: The Separation Of Powers Doctrine In State Education Funding Suits, Sarah Seo

Faculty Scholarship

What is the scope of judicial power to enforce positive rights, such as the right to education? This Note analyzes litigation outcomes in state education finance lawsuits to examine how state courts exercise their authority within the limits of the separation of powers doctrine. The Note argues that practical, non-legal factors play an important role in a judge's decision to grant remedies addressing unconstitutional legislative inaction to provide an adequate public education. In conclusion, the Note discusses the efficacy of education litigation in light of the judicial s jurisdictional limits, as well as the realities of state politics.

Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe

Faculty Scholarship

The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court's international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system.

This Article argues that the focus on doctrine masks underlying international relations …

The Overlapping Magisteria Of Law And Science: When Litigation And Science Collide, William G. Childs

Faculty Scholarship

In this Article, the Author explores two unexpected consequences of joining science and law at the hip, and considers whether these consequences represent reciprocal contamination, or instead cross-fertilization, of law and science. In Part I of this Article, the Author provides a brief review of the evolution of legal standards for the admissibility of what is termed "scientific evidence," including Frye and Daubert and their progeny. In Part II of the Article, the Author gives a (necessarily limited) overview of certain modern scientific paradigms of reliability and he explores the realities of peer reviews and of other institutions in science …

Enhancing Drug Effectiveness And Efficacy Through Personal Injury Litigation, Anita Bernstein

Faculty Scholarship

No abstract provided.

Authorized Managerialism Under The Federal Rules— And The Extent Of Convergence With Civil-Law Judging, Thomas D. Rowe Jr.

Faculty Scholarship

This article, part of a symposium marking the fortieth anniversary of the United States District Court for the Central District of California, first surveys the (very considerable) extent to which changes in the Federal Rules of Civil Procedure over the past quarter century have expanded and legitimized the pretrial managerial powers of federal trial-court judges. It then turns to an issue sometimes touched on in prior literature--whether the move toward greater managerialism departs from the "adversarial" model of the judge as passive referee and makes us more like supposedly "inquisitorial" civil-law systems. To the extent that civil-law judges generally exercise …

State And Foreign Class-Action Rules And Statutes: Differences From - And Lessons For? - Federal Rule 23, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

"Deport All The Students": Lessons Learned In An X-Treme Clinic, Stacy Caplow

Faculty Scholarship

No abstract provided.

Chasing The Illusory Pot Of Gold At The End Of The Rainbow: Negligence And Strict Liability In Design Defect Litigation, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Aaron D. Twerski, Margaret Berger

Faculty Scholarship

No abstract provided.

What We Talk About When We Talk About Workplace Privacy, Anita Bernstein

Faculty Scholarship

No abstract provided.

Information, Litigation, And Common Law Evolution, Keith N. Hylton

Faculty Scholarship

It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This article presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop favoring the …

Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued …

Book Review: Tom Baker's The Medical Malpractice Myth, Barbara A. Noah

Faculty Scholarship

The Author reviews THE MEDICAL MALPRACTICE MYTH by Tom Baker, published by University of Chicago Press, 2005. Baker’s book confronts the idea that medical malpractice litigation is exploding and underserving plaintiffs and that their attorneys receive unjustified rewards while physicians struggle under the burden of high costs. The book strives to debunk the various aspects of this myth and offers directions for reform. Throughout the book, Baker very effectively connects the legal arguments and the insurance and litigation data to his broader points about the politics of tort reform. Baker’s style is concise, lively, and very readable. He effectively weaves …

Court-Ordered Confidentiality In Discovery Symposium: Secrecy In Litigation: I: Article, Howard M. Erichson

Faculty Scholarship

The debate over discovery confidentiality has raged for over twenty years, since before the Supreme Court's decision in Seattle Times Co. v. Rhinehart, and it shows no sign of fading. If anything, issues of litigation confidentiality appear to have gained increased attention in recent years. The United States District Court for the District of South Carolina attracted nationwide attention in 2002 when it adopted a local rule severely restricting secret settlements and addressing other aspects of court-ordered confidentiality. In 2004 the Federal Judicial Center completed an empirical study of sealed settlements. It seems that each month of 2005 brought new …

Safe-Conduct Theory Of The Alien Tort Statute, The, Thomas H. Lee

Faculty Scholarship

In this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a "safe conduct" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. …

Teaching Reflective Lawyering In A Small Case Litigation Clinic: A Love Letter To My Clinic Papers Presented At The Ucla/Ials Conference On Enriching Clinical Education, Ian Weinstein

Faculty Scholarship

This article describes a live client, small case, teaching and learning centered, criminal defense clinic set in a high volume urban court. It offers concrete suggestions about how clinical educators can help students develop analytic and technical skills. The clinic model is conceived in three phases: giving students the opportunity to develop a contextualized understanding of the client; guiding students through strategic analysis and planning; and focusing students' litigation strategies on executing their tactical vision for their client. The article argues that this clinical setting structures the students' experiences so that they develop a complex and deeply moral lawyerly problem …

Liability For Direct Advertising Of Drugs To Consumers: An Idea Whose Time Has Not Come, Aaron Twerski

Faculty Scholarship

No abstract provided.

Lessons For Patent Policy From Empirical Research On Patent Litigation, James Bessen, Michael J. Meurer

Faculty Scholarship

This Article reviews empirical patent litigation research to reveal patent policy lessons. First, the Article presents facts about patent litigation. Next, it analyzes the patent premium. Patent litigation research reveals little about the magnitude of the patent premium, but the research reveals the strategies firms use to capture the patent premium and the patent policy instruments that determine the patent premium. Next, the Article evaluates the patent prosecution process and notes that making efforts to refine a patent application can affect the value of the patent. The Article then identifies reforms for improving PTO performance. Finally, the Article discusses policy …

Anticipating Litigation In Contract Design, Robert E. Scott, George G. Triantis

Faculty Scholarship

Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design in a world of costly litigation. We examine the efficiency of investment at the front end and back end of the contracting process, where we focus on litigation as the back-end stage. In deciding whether to express their obligations in precise or vague terms, contracting parties implicitly allocate costs between the front and back end. When the …

Dependence, Identity, And Abortion Politics, Robin Effron

Faculty Scholarship

No abstract provided.

Common Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly S. Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

Why Do Plaintiffs Sue Private Parties Under Section 1983, Jack M. Beermann

Faculty Scholarship

The subject of this article is why people make federal cases, under section 1983,' out of claims they have against private parties. Section 1983 provides a cause of action against "any person" who, while acting "under color of' state law, subjects or causes the plaintiff to be subjected to a violation of federal constitutional or statutory rights. The requirement that the defendant act under color of law means that the typical section 1983 claim is brought against state and local government officials or entities, not against private individuals or entities. However, there are situations in which a private party (i.e. …

Procedural Justice, Lawrence B. Solum

Faculty Scholarship

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, …

How Like A Winter? The Plight Of Absent Class Members Denied Adequate Representation, Susan P. Koniak

Faculty Scholarship

Class actions assume absent class members. ² Notices in class actions tell class members that they need not show up in the courthouse, although they may if they choose.³ Class members are told that class counsel and the named class representatives will look out for them, although if they choose to hire their own lawyer, she may appear on their behalf.⁴ They are also routinely told that once the decision in the class action becomes final they will be bound by it, losing any and all right to protest the resolution of their claims by the class action …

Important” And “Irreversible” But Maybe Not “Unreviewable”: The Dilemma Of Protecting Defendants’ Rights Through The Collateral Order Doctrine, Kristin B. Gerdy

Faculty Scholarship

This articles addresses the collateral order doctrine beginning with its inception in Cohen v. Beneficial Industrial Loan Corp., and continuing through an overview of theCourt's civil collateral order jurisprudence illustrating the development of the "requirements" for attaining appellate review under the doctrine. It examines the role of "important rights" in the Court's collateral order cases and attempts to determine whether "importance" is an additional requirement of the collateral order test. The author seeks to define what the Court means by an "important" right or issue, and to explain the view that some rights are sufficiently "important" to outweigh costs of …