Litigation Commons^™

Mobility Factors In Antitrust Cases: Assessing Market Power In Light Of Conditions Affecting Entry And Fringe Expansion, William H. Wentz

Michigan Law Review

To assist courts and litigants in developing and utilizing information on mobility factors in a meaningful manner, I have attempted in this Article to outline a basic approach for analyzing the competitive and efficiency significance of mobility factors in a litigative context. In Part I, I lay the necessary foundation: discussing the importance of mobility factors in accepted economic theory, explaining the sources of the current confusion and controversy about "entry barriers" and deriving from the debate areas of fundamental agreement among economists. Building on this common ground, I develop in Part II a basic approach to consideration of mobility …

Statutory And Common Law Considerations In Defining The Tort Liability Of Public Employee Unions To Private Citizens For Damages Inflicted By Illegal Strikes, Michigan Law Review

Michigan Law Review

This Note argues that in the absence of any clear indication that the legislature intended to bar such suits, courts should uphold private actions whenever plaintiffs can establish the elements of a common-law tort. Part I briefly outlines the various theories supporting the view that public sector collective bargaining statutes preempt private actions. The analysis is necessarily general, but Part I concludes that in most cases neither the language and structure of the applicable statute nor an analogy to federal labor law will resolve the preemption question. Part II, therefore, looks to the policies that animate no-strike provisions and argues …

Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

Michigan Law Review

We explore in this Article the basis and consequences of the target's suit under the antitrust laws. We approach the question from the perspective of federal antitrust law and state corporation law.

We argue in Part I that the target is a singularly poor "private attorney general" because it is a beneficiary, not a victim, of any violation. An antitrust suit thus must be understood as an attempt by managers to defend their own positions, not as an attempt to vindicate the public interest. In the jargon of antitrust, the target is not a victim of "antitrust injury" and therefore …

The Litigious Society, Michigan Law Review

Michigan Law Review

A Review of The Litigious Society by Jethro K. Kieberman

The Numbers Game: Statistical Inference In Discrimination Cases, David H. Kaye

Michigan Law Review

A Review of Statistical Proof of Discrimination by David Baldus and James Cole

The Use/Nonuse/Misuse Of Applied Social Research In The Courts, Michigan Law Review

Michigan Law Review

A Review of The Use/Nonuse/Misuse of Applied Social Research in the Courts edited by Michael J. Saks and Charles H. Baron

Lawsuit, Michigan Law Review

Michigan Law Review

A Review of Lawsuit by Stuart M. Speiser

Civil Juries And Complex Cases: Let's Not Rush To Judgment, Richard O. Lempert

Michigan Law Review

When a fundamental constitutional right is at issue, it is admittedly difficult for the Court to treat the lower courts as laboratories. But if the constitutional right turns on empirical questions, it is better to wait for knowledge than to rush toward a judgment that may later be shown to have vitiated an important right across all circuits. If the Court feels compelled to resolve the conflict, the better decision - if empirical issues are seen as central - is to sustain the right to jury trial regardless of complexity. Sustaining that right will allow courts and researchers to collect …

The Proper Role Of Res Judicata And Collateral Estoppel In Title Vii Suits, Charles C. Jackson, John H. Matheson, Thomas J. Pikorski

Michigan Law Review

The Article proceeds from the premise, established in Part I, that federal courts must apply preclusion principles unless Congress clearly indicates otherwise. Part II considers a number of indicators of Congress's intent, and finds no evidence to rebut the presumption that federal courts must give preclusive weight to certain state decisions. Part III then proposes general guidelines for the application of preclusion doctrines in title VII litigation.

Disclosure Of Grand Jury Materials Under Clayton Act Section 4f(B), Michigan Law Review

Michigan Law Review

This Note analyzes the controversy and concludes that the latter courts are correct: Congress never intended to abrogate or modify rule 6(e)'s "particularized need" standard when it enacted section4F(b). Part I discusses whether Congress intended section 4F(b) to require the Attorney General to disclose grand jury materials to state attorneys general upon request, thereby abrogating rule 6(e)'s explicit prohibition against such disclosure. Part II examines the statutory language and legislative history of section). 4F(b) to determine whether Congress intended section 4F(b) to modify rule 6(e)'s "particularized need" standard. Finally, Part III evaluates the policies affected by liberalized disclosure of grand …

Hired Guns, Norval Morris

Michigan Law Review

A Review of Partisan Justice by Marvin E. Frankel

Collateral Estoppel And Supreme Court Disposition Of Moot Cases, Michigan Law Review

Michigan Law Review

In response to the Government's novel proposal in Velsicol, this Note reconsiders the procedures by which the Supreme Court could dispose of moot cases. Section I examines the collateral estoppel effects of the Supreme Court's present procedure and the Government's proposal in Velsicol. Section II concludes that both procedures afford excessive protection from collateral estoppel because they misconceive the purpose of Supreme Court review. The Note suggests that, when faced with a moot federal petition for certiorari, the Supreme Court should either deny the petition or, if certiorari has already been granted, dismiss the case.

Personal Jurisdiction And Choice Of Law, James Martin

Michigan Law Review

The time has come for the Supreme Court to declare that a state may not apply its own law to a case unless it has the "minimum contacts" required by International Shoe for the exercise of specific personal jurisdiction over the defendant. Although the present state of the law is less than certain, the Supreme Court has not yet required that a state show it has minimum contacts with a defendant before applying its law. As a result, in some cases where a state has obtained personal jurisdiction because of a defendant's contacts unrelated to the case - contacts such …

The Lawsuit Lottery: Only The Lawyers Win, Michigan Law Review

Michigan Law Review

A Book Notice about The Lawsuit Lottery: Only the Lawyers Win by Jeffrey O'Connell

Probability Theory Meets Res Ipsa Loquitur, David Kaye

Michigan Law Review

This Article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. It does not urge that jurors be instructed in probability theory or be equipped with microprocessors. Rather, it seeks an accurate statement of the res ipsa doctrine in ordinary language. In particular, this Article will show that the conventional formulation of the doctrine is misleading at best, and should be replaced with a more careful statement of the conditions warranting the res ipsa inference. To this end, Section I briefly surveys the legal doctrine, or, more precisely, …

Limitation Borrowing In Federal Courts, Michigan Law Review

Michigan Law Review

This Note studies limitations on federal actions in light of Occidental Life. Part I discusses the reasons for limiting actions and presents a short history ·of the limitation of actions. Part II analyzes the alternatives for the federal courts when no statute of limitations applies directly. Finally, the Note suggests a solution that will achieve a result most nearly consistent with both the reasons for limiting actions and the proper role of the judiciary. It suggests, notwithstanding Occidental Life, that in some situations courts should borrow specific federal statutes of limitations and that in the remainder they should …

Punitive Surcharges Against Disloyal Fiduciaries--Is Rothko Right?, Richard V. Wellman

Michigan Law Review

This Article criticizes the award of a penalty surcharge in the name of appreciation damages. Contrary to the statements in the Rothko opinions, neither precedent nor treatises offers clear support for the shocking awards made against Rothko's disloyal executors. Furthermore, even if appreciation damages were to be viewed, against the thesis here advanced, as an appropriate remedy for some kinds of fiduciary breach, the measure is inappropriate for cases which, like Rothko, involve hidden conflicts of interest. This is so because the threat of severe penalties in hidden-conflict cases adds unacceptable legal costs to honest administrations-costs that cannot be …

A Probabilistic Analysis Of The Doctrine Of Mutuality Of Collateral Estoppel, Michigan Law Review

Michigan Law Review

Part I of this Note lays the foundation for the conclusions suggested above by setting forth some elementary probabilistic notions and establishing a measure of trial efficacy. The next part reviews some of the early suggested limitations on the application of Bernhard and, by analyzing the mutuality requirement and the Bernhard doctrine in probabilistic terms, demonstrates that the concerns underlying those initial reservations were not only sound, but require rejection of Bernhard.

Although the primary purpose of this Note is to expose the flawed analysis underlying Bernhard, a secondary . purpose is to demonstrate how probability theory can …

Injury To Reputation And The Constitution: Confusion Amid Conflicting Approaches, George C. Christie

Michigan Law Review

It is the thesis of this article that the long-run implications of Firestone and Paul v. Davis will force a radical reformulation of the circumstances under which an individual may obtain legal redress for injury to his reputation brought about by falsehoods. The Court will eventually be obliged to abandon its fragmented treatment of the subject: At present, some injured persons have no chance of recovery; others are faced with requirements of proof that make recovery very difficult; still others can recover under significantly more relaxed standards of proof. The nature of the Court's likely reformulation will be developed later …

Measuring The Duration Of Judicial And Administrative Proceedings, David S. Clark, John Henry Merryman

Michigan Law Review

A method of estimating the probable duration of litigation is useful for a variety of purposes. First, the probable duration of a case may, to some extent, determine strategy in litigation since prolonged litigation is often perceived as an appreciable cost to one party and as a benefit to the other. An estimate of the duration of a criminal case, for example, probably influences the respective postures of a defendant and a prosecutor in plea bargaining. Similarly, civil litigants may be able to use an estimate of the probable duration of litigation, together with other factors, in deciding whether to …

Measuring The Duration Of Judicial And Administrative Proceedings: A Comment, David P. Doane

Michigan Law Review

Professors Clark and Merryman propose a useful indirect measure of the duration of litigation whose primary virtue is its ease of computation from published court data. As the authors note, such a measure of duration may be useful to persons involved in judicial administration and to attorneys formulating strategy in litigation, and the legal community should find informative their illustration of the concept with Italian court data. Concluding on a pragmatic note, Professors Clark and Merryman appear to suggest that attorneys, clients, judges, court administrators, and social scientists must ultimately assess the utility of their concept. In making this assessment, …

Service Of Process By Mail, Michigan Law Review

Michigan Law Review

This Note examines the operation of the return-receipt requirement and concludes that, in light of the procedures available to a defendant to challenge service and to reopen default judgments entered against him, the requirement of a signed receipt is unduly harsh on plaintiffs. In the course of this examination, the Note details the means by which a defendant can avoid service by mail in a return-receipt jurisdiction and explains the operation of the various motions to challenge service of process, which, it is asserted, can protect the defendant as well as a return-receipt requirement.

Counterclaim And Countersuit Harassment Of Private Environmental Plaintiffs: The Problem, Its Implications, And Proposed Solutions, Michigan Law Review

Michigan Law Review

This Note first outlines the basic characteristics of the counteraction strategy and considers the implications of its future proliferation and then analyzes proposals to eliminate or ameliorate the impact of the strategy in terms of their effectiveness and practicability.

Collateral Estoppel: Loosening The Mutuality Rule In Tax Litigation, Michigan Law Review

Michigan Law Review

Collateral estoppel is an aspect of the doctrine of res judicata that precludes relitigation of issues previously adjudicated. A judgment in a prior action may be held conclusive as to issues in a subsequent case. even though the later case technically involves a different cause of action. The rule of collateral estoppel seeks to conserve judicial energy, promote confidence in the judicial system, avoid litigant expense, promote community peace and reliance on judgments, and minimize inconsistent results. Countervailing policy concerns are the right of each person to have his day in court, the fear of increased litigation, the danger of …

Limiting The Plaintiff Class: Rule 10b-5 And The Federal Securities Code, Michigan Law Review

Michigan Law Review

The Penn Central litigation, involving a large, publicly held corporation, illustrates the need to examine the reach of the federal antifraud provisions. This Note discusses the problem of defining the plaintiff class when the number of past and present shareholders who are potential plaintiffs is very great. Attention will center on the methods courts have used to limit the class of investors compensable under rule 10b-5. Also, the effect that enactment of present drafts of the American Law lnstitute's proposed Federal Securities Code would have on the composition of the plaintiff class in analogous actions will be discussed. Finally, the …

The Tentative Settlement Class And Class Action Suits Under Title Vii Of The Civil Rights Act, Michigan Law Review

Michigan Law Review

This Note will examine the potential utility of a tentative settlement class (TSC) in suits initiated under title VII of the Civil Rights Act of 1964. The advantages and disadvantages of the TSC will be discussed in the context of analyzing whether the use of a TSC is valid under rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. The discussion of the merits of the TSC in the title VII context will illustrate the problems inherent in the use of a tentative class for encouraging settlements of any class action.

Discovery And Presentation Of Evidence In Adversary And Nonadversary Proceedings, E. Allan Lind, John Thibaut, Laurens Walker

Michigan Law Review

In order to evaluate fully the advantage claimed for the adversary model we sought to add a third element that would test the hypothesis under a variety of conditions. The degree to which the evidence discovered in a case favors one party at the expense of another appeared to meet this criterion. This fact-distribution element is a pervasive condition of legal conflict resolution that, intuition suggests, may significantly influence information search and transmission. Further, this variable could be easily and accurately controlled by regulating the flow of favorable information acquired by the subjects during the experiment.

The remainder of this …

Res Judicata In The Derivative Action: Adequacy Of Representation And The Inadequate Plaintiff, Michigan Law Review

Michigan Law Review

It is the purpose of this Note to examine the adequacy of representation in a derivative suit and to consider the appropriateness of applying res judicata to foreclose the corporate cause of action. Discussion will focus on the following areas: (1) the problem of the inadequate plaintiff; (2) the efficacy of judicially created devices designed to ensure the adequacy of representation; and, (3) the feasibility of partially exempting the derivative cause of action from the operation of res judicata.

Securities Law--Prospectus Must Reflect Developments Subsequent To Effective Date Of Registration Statement To Meet Requirements Of Section 10(A) Of Securities Act Of 1933--Sec V. Manor Nursing Centers, Inc.*, Michigan Law Review

Michigan Law Review

Manor Nursing Centers, Inc., made a public offering of 450,000 shares of its common stock at a price of ten dollars per share. Under the provisions of the Securities Act of 1933, a registration statement containing a prospectus was filed with the Securities and Exchange Commission. These documents represented that the offering would be on a best efforts, "all-or-nothing" basis-that is, if all the 450,000 shares were not sold by a specified selling deadline, the proceeds of any sales would be returned to subscribers. The prospectus stated that subscribers' funds would be segregated in an escrow account and that arrangements …

Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review

Michigan Law Review

This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.