Litigation Commons^™

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

Petition For Writ Of Certiorari - Roberson V. State Of Mississippi, Frank Rosenblatt

Journal Articles

No abstract provided.

Ideological Leanings In Likely Pro Bono Biglaw Amicus Briefs In The United States Supreme Court, Derek T. Muller

Journal Articles

Each term, the United States Supreme Court receives hundreds of amicus briefs filed in merits docket cases. Many of the largest law firms file amicus briefs before the United States Supreme Court. These amicus briefs are often pro bono, which means the clients do not pay for the firm to file the brief. That pro bono work can quickly total millions of dollars of legal briefing subsidized by the law firm. And pro bono work often reflects the law firm’s desire to work for its prior commitments to what it identifies as the "public good."

Controversies have arisen in recent …

The Scope Of Generic Choice Of Law Clauses, Tanya J. Monestier

Journal Articles

Non-proceduralists have the perception that questions of jurisdiction or choice of law are just preliminary issues that need to be dealt with before getting to the real dispute, the things that matter. What they do not realize is that these preliminary issues are often, themselves, the real dispute. They are the lever which permits litigation to proceed or which stops a claim dead in its tracks. Thus, these procedural matters — often dismissed as technicalities — have the potential to shape the dispute in significant ways.

Take for instance, a staple of commercial and consumer contracting: the ubiquitous choice of …

Election Subversion And The Writ Of Mandamus, Derek T. Muller

Journal Articles

Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the …

Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo

Journal Articles

his Article uses two recent decisions -one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors - to explore deeper connections between class­action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

Journal Articles

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

Nominal Damages As Vindication, Sadie Blanchard

Journal Articles

A recent Supreme Court decision inspired a resurgence of interest in an old mystery: how can nominal damages vindicate a plaintiff for past harm? The Court relied on the longstanding common law practice of entitling a plaintiff to sue for violation of her rights, even without demonstrating harm in fact, and to recover nominal damages. Courts have long asserted that awarding nominal damages in such suits vindicates the plaintiff. But they have not explained just how awarding $1 provides vindication, and serious observers scoff at the idea that it does. This Article offers a theory of vindication through nominal damages …

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

What Is A “Case”?, Lynn M. Mather

Journal Articles

This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …

Electoral Votes Regularly Given, Derek T. Muller

Journal Articles

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not "regularly given." That language comes from the Electoral Count Act of 1887. But the phrase "regularly given" is a term of art, best understood as "cast pursuant to law." It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment …

Twenty-Third Amendment Problems Confronting District Of Columbia Statehood, Derek T. Muller

Journal Articles

Proposals to make the District of Columbia a state would leave behind a new, substantially smaller District named "Capital." The Twenty-Third Amendment guarantees that the new District would have three electoral votes, no matter how few people reside in it. Proposals that would make the District of Columbia state do not adequately address this issue. Statehood, if it proceeds, should be conditioned on repeal of the Twenty-Third Amendment. Potential alternative statutory solutions to the Twenty-Third Amendment--which do not exist in recent bills that Congress has considered--present constitutional, legal, and practical problems.

In one sense, the scope of this Article is …

Reducing Election Litigation, Derek T. Muller

Journal Articles

Election litigation has exploded, and judges have increasingly been asked to evaluate ever-finer points of election administration. This Article posits some reasons that the judiciary has done so, and it offers potential ways to reduce election litigation.

Part I examines the increase in litigation and attributes at least some of that increase to several causes: increased campaign expenditures on litigation; increased partisanship in state legislatures yielded more contentious election laws; the decline of preclearance under the Voting Rights Act after Shelby County v. Holder; and Supreme Court extensions of the Anderson v. Celebrezze framework to broad areas of election …

Brnovich V. Dnc: Election Litigation Migrates From Federal Courts To The Political Process, Derek T. Muller

Journal Articles

We are in a time of public skepticism over elections. The losing side doubts the fairness of the outcome, attributing the loss to suppression, fraud, foreign influence, or late-breaking changes to laws—some “true reason” outside the legitimate political process why a preferred candidate failed. The winning side is a sour contest or a sore loser away from doubting the legitimacy of the election.

It’s hard to tell whether the sharp rise in litigation over elections is the cause or the effect. Major political parties are spending more money than ever on lawyers and litigation in federal elections, from $7.5 million …

Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet

Journal Articles

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent …

The Shortcomings Of Title Vii For The Black Female Plaintiff, Yvette N.A. Pappoe

Journal Articles

Various United States courts, including the Supreme Court, have decided numerous workplace discrimination cases in the past four decades. Kimberlé Crenshaw introduced and coined the term “intersectionality” 25 years after Congress enacted Title VII. The formal recognition of intersectionality opened the gate for several legal scholars to criticize Title VII jurisprudence related to plaintiffs who bring multidimensional claims-—usually women of color plaintiffs—arguing, for example, that “complex discrimination” claimants face both structural and ideological barriers to redress and thus fare even worse when compared to other employment discrimination plaintiffs.

I argue that Black women bear the brunt of these structural barriers …

The Future Of Multidistrict Litigation, Jay Tidmarsh, Daniela Peinado Welsh

Journal Articles

The occasion for this Essay is the fiftieth anniversary of the enactment of the multidistrict-litigation statute, 28 U.S.C. § 1407. Multidistrict litigation has quietly become a central feature of federal litigation, sweeping one-third or more of all federal civil cases each year into aggregate proceedings. Recent commentary on multidistrict litigation has been highly critical of the “Wild West” quality of the proceedings, which arguably benefit repeat-player lawyers at the expense of their clients’ interests and autonomy. Reform of the process now seems likely. This Essay begins by describing the features, most historically contingent, that have brought multidistrict litigation to this …

"Innocence" And The Guilty Mind, Stephen F. Smith

Journal Articles

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, the goal being to define the mental element in terms that will protect offenders from conviction unless they had adequate notice of the wrongfulness of their conduct. The Supreme Court’s recent decision in Elonis v. United States signals a significant shift in mens readoctrine, recognizing for the first time the potential for disproportionately severe punishment as a justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment …

Courts As Information Intermediaries: A Case Study Of Sovereign Debt Disputes, Sadie Blanchard

Journal Articles

When foreign sovereigns default on their debt, creditors sometimes sue them. These creditors are sophisticated actors, and they sue even though courts can do little to force a sovereign to satisfy a judgment. Why do they sue? This Article argues that courts serve as information intermediaries that strengthen reputational enforcement in the international sovereign debt market. It shows, through a case study of sovereign debt defaults and disputes, three ways in which courts play this role. First, in hard cases, courts clarify reputational signals by publicly determining whether breach occurred. Second, through discovery and fact finding, they mitigate information asymmetries …

The Golden Ratio Of Corporate Deal-Making, Christina M. Sautter

Journal Articles

The article discusses the Delaware Supreme Court's decision in the case 'Revlon, Inc. v. MacAndrews & Forbes Holdings Inc.' in which the court sale of corporate control, the target's board of directors has a duty to maximize stockholder value. Topics discussed include relationship between the deal protection devices and sale process; golden ratio of corporate deal-making; and the court's definition of an ideal merger and acquisition of a sale process.

The Litigation Budget, Jay Tidmarsh

Journal Articles

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require …

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey

Journal Articles

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It …

The Future Of Human Rights Litigation After Kiobel, Roger P. Alford

Journal Articles

This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. As others have argued in this issue, that premise may not be correct. Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.

Cy Pres And The Optimal Class Action, Jay Tidmarsh

Journal Articles

This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the …

Where Is Home Depot “At Home”? Daimler V. Bauman And The End Of Doing Business Jurisdiction, Tanya J. Monestier

Journal Articles

In January 2014, the U.S. Supreme Court decided Daimler AG v. Bauman. The case was supposed to resolve a very important question that had divided courts for decades: when, for jurisdictional purposes, can the contacts of a subsidiary be imputed to its parent? The Supreme Court dodged this question. Instead, it answered a different, but equally important, question: under what circumstances is a corporation “at home” such that a state has general jurisdiction over it? The Court had introduced the “at home” language to the discourse on general jurisdiction a few years earlier in Goodyear Dunlop Tires Operations, S.A. …

'May It Please The Court?': A Short Story, Angela Mae Kupenda

Journal Articles

This story tells a fictional account of a black woman lawyer who is about to try the biggest case of her life. While many black women lawyers seek to express their individuality and bring the best of themselves into their work and lives, conventions and norms about race and gender force them to give huge attention to things that likely matter little in the long run. In this story, we go on a journey of self-discovery with the protagonist, Angel, in hopes that she will be able to please the court in this—her trial of a lifetime.

Living In Cafa's World, Jay Tidmarsh

Journal Articles

This Article, prepared for a conference on the Class Action Fairness Act, examines the effect of CAFA on our understanding about the benefits and drawbacks of class actions. The Article describes the vision of class actions that imbues CAFA, and demonstrates how many subsequent developments in the law of class actions — including the Supreme Court’s decisions in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Shady Grove Orthopedics v. Allstate Insurance — have advanced CAFA’s restrictive vision about the role of class actions in modern American litigation. The Article demonstrates that competing visions about the role of class actions …

Superiority As Unity, Jay Tidmarsh

Journal Articles

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve …

Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown

Journal Articles

No abstract provided.