Litigation Commons^™

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 unemployment …

Judgment Day For Fraud-On-The-Market: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The Supreme Court has reaffirmed the "fraud on the market" presumption of reliance, facilitating large scale class actions for this kind of securities fraud. This essay traces the road from its decision last year in Amgen to this year's reaffirmation in Halliburton II, and considers some of the issues that will emerge as lower courts struggle with Halliburton II's secondary holding--that the issue of "price impact" is crucial to class certification, even if the burden of proof is on the defendants.

Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.

However, one clear obstacle …

The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming

Georgetown Law Faculty Publications and Other Works

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.

Even when the presumption against …

Judgment Day For Fraud-On-The-Market?: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

In November 2013, the Supreme Court granted certiorari in the Halliburton litigation to reconsider, and perhaps overrule, its seminal decision in Basic Inc. v. Levinson. Basic legitimated the fraud-on-the-market presumption of reliance, making securities class actions for claims of false corporate publicity viable, and such cases have become the central mechanisms for private securities fraud litigation. This move came after last Term’s Amgen decision, where four justices signaled their doubts about Basic. This essay looks at the connection between Amgen and the continuing viability of fraud-on-the-market litigation. How Halliburton comes out will likely depend on how the Court …

Injunctions In Sovereign Debt Litigation, Mark C. Weidemaier, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Injunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. We argue that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money judgments and injunctions are enforced through what amounts to a court-imposed embargo. This embargo discourages third parties from dealing with the sovereign and, if sufficiently costly, can induce the sovereign to comply. Nevertheless, we are skeptical about injunctions in sovereign debt litigation. They are prone to …

Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King

Georgetown Law Faculty Publications and Other Works

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.

Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by …

Merger Settlement And Enforcement Policy For Optimal Deterrence And Maximum Welfare, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Merger enforcement today relies on settlements more than litigation to resolve anti-competitive concerns. The impact of settlement policy on welfare and the proper goals of settlement policy are highly controversial. Some argue that gun-shy agencies settle for too little while others argue that agencies use their power to delay to extract over-reaching settlement terms, even when mergers are not welfare-reducing. This article uses decision theory to throw light on this controversy. The goal of this article is to formulate and analyze agency merger enforcement and settlement commitment policies in the face of imperfect information, litigation costs, and delay risks by …

“Fine Distinctions” In The Contemporary Law Of Insider Trading, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding …

Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The idea for this article came from the author's representation of a national non-profit consumer rights organization in a federal appeal challenging a district court’s approval of a class-action settlement. The organization's appellate briefs argued that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ views, the settlement was "fair, reasonable, and adequate" (which is the standard for class-action settlement approval under Federal Rule of Civil Procedure 23(e)). The district court also deferred to the lawyers' reputations as talented and honest lawyers.

In this article, …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Reading Stoneridge Carefully: A Duty-Based Approach To Reliance And Third Party Liability Under Rule 10b-5, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in the Stoneridge case has largely been interpreted as a imposing a strict, pro-defendant reliance requirement. This article offers an alternative reading that takes the Court's analysis more seriously than its overheated dicta, one that makes "remoteness" a serious and meaningful inquiry that can produce balanced and fair responses to the concern that seemed to motivate the search for restraint: fear of disproportionate liability. It explores the nature of the dispropotion, and suggests ways--using the Court's own explanatory tools--for deciding when third party involvement is close enough to the fraud so that fear of disproportion lessens. …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Unfair Competition And Uncommon Sense, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

Wyeth V. Levine And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court’s decision in Wyeth v. Levine sharply limited the availability of implied preemption as a defense in pharmaceutical cases. In this Analysis & Perspective, attorney Brian Wolfman discusses the decision and its implications for prescription drug litigation as well as litigation in other areas that are regulated by the federal government.

After Wyeth, Wolfman says, a defendant in a prescription drug case must demonstrate a ‘‘tight fit between the labeling change proposed by the manufacturer (and rejected by the FDA) and the labeling change that the plaintiff contends would have prevented her injuries.’’ Moreover, he says, …

Asylum In A Different Voice: Judging Immigration Claims And Gender, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims for asylum was female there was a 44% greater likelihood that asylum would be granted. This chapter in the book reporting these findings reflects on this significant finding of gender differences in judging and discusses, in light of the author's prior work on gender differences in lawyering, whether …

The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …

Hamdan V. Rumseld: The Legal Academy Goes To Practice, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Hamdan v. Rumsfeld is a rare Supreme Court rebuke to the President during armed conflict. The time is not yet right to tell all of the backstory of the case, but it is possible to offer some preliminary reflections on how the case was litigated, the decision, and its implications for the oft-noticed divide between legal theory and practice.

In a widely cited article, Judge Harry Edwards lamented "the growing disjunction between legal education and the legal profession," claiming that "many law schools. .. have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and …

Solicitors General Panel On The Legacy Of The Rehnquist Court, Seth P. Waxman, Walter E. Dellinger Iii, Maureen Mahoney, Theodore Olson, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

All of us who are speaking probably share the same giddy feeling in front of a microphone with no red light. For years, my daughter told people that the greatest threat to Western civilization was her father at a podium without a red light. Before becoming Solicitor General, I spent my career as a trial lawyer, arguing only a few appeals. I found this red light tradition a little peculiar. More often than not, timers and lights in courts of appeals are viewed as advisory at best. I've had arguments where ten minutes were allocated per side, and yet argument …

Preventing The Subversion Of Devlin V. Scardelletti, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

In 2002, the U.S. Supreme Court ruled in Devlin v. Scardelletti that objecting class members could appeal a federal district court’s approval of a class settlement without first intervening in the litigation. Public interest lawyer Brian Wolfman says the ruling was a victory for both objectors and the integrity of class action procedure: Objectors, he argues, help keep fairness hearings fair.

But a number of courts are now ruling that Devlin only applies to non-opt-out class actions, rather than the much more numerous ones that give class members opt-out rights. In this article, Wolfman details the exact wording of the …

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

Georgetown Law Faculty Publications and Other Works

This Article represents the first attempt to study empirically the factors that cause courts to impose disclosure duties on bargaining parties in some circumstances, but not in others. We analyze data coded from 466 decisions spanning a wide array of jurisdictions and covering over two hundred years. The results are mixed. In some instances our data support the conventional wisdom relating to common-law disclosure duties. For example, we find that courts are more likely to require the disclosure of latent, as opposed to patent, defects and are more likely to require disclosure when the parties are in a fiduciary or …

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This 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, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Journal's focus on appellate practice and procedure suggests that it might be appropriate and productive to take a somewhat unusual approach to Brown and its significance. Brown was most important, of course, for its role in the transformation of American race relations. From the point of view of the appellate courts, Brown is significant in another way. Brown was the culmination of a sustained campaign of strategically designed litigation-or so it came to be thought. Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed …

Some Legacies Of Brown V. Board Of Education, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

The litigation campaign against segregation that culminated in Brown v. Board of Education' remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system.

Taking Out The Adversary: The Assault On Progressive Public Interest Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progressive public-interest lawyers to bring cases. It asks a simple-sounding question: how just is the adversary system if one side is not adequately represented in it? And it defends a simple-sounding answer: It is not just at all. As we shall see, however, neither the question nor the answer is quite as simple as it sounds.

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Panel For Former Solicitors General, Seth P. Waxman, Walter E. Dellinger Iii, Kenneth W. Starr, Charles Fried, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

I agree entirely that the chain of command is clear and that the Framers managed to make it all the way through all the articles of the Constitution without even conceiving of a solicitor general, let alone bothering to mention an attorney general. It is important nonetheless to distinguish between those things the solicitor general does pursuant to the longstanding notice-and-comment regulation, and the other things a solicitor general may do pursuant to his (and, someday, her!) statutory obligation to be of general assistance to the attorney general.

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Clinton Ii Panel, Seth P. Waxman, Walter E. Dellinger Iii, Barbara D. Underwood, Michael R. Dreeben

Georgetown Law Faculty Publications and Other Works

I will say a few words about Dickerson, both because Michael has made it impossible not to and also because in some ways it represents the very best about how all of the wonderful, tried-and-true processes of the SG's Office ought to work. Dickerson was very much like the other case that Michael talked about (which is one of, I think, two significant privilege controversies which the Independent Counsel laid on our doorstep). These cases may have appeared to the outside world as paradigmatically cases in which we would be hearing from the White House, or talking to the White …