Litigation Commons^™

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

Michigan Law Review

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …

Incentive Awards To Class Action Plaintiffs: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 …

Moot Court Teams 2006-2007, Kellie Casey Monk

Materials from All Student Organizations

No abstract provided.

In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet

ExpressO

Lawyers can learn a lot from the theory of improvisational comedy, and it isn’t just a matter of thinking on your feet. As we will explain, the key concept in both disciplines is the creation of a new, temporary reality. In improvisation, the cast must draw the audience into sharing the constructed reality of the stage, such that they can actually “see” the objects and characters portrayed, without the use of props or costumes. In trial, the lawyer must draw the jury into sharing the re-constructed reality of past events, such that they “see” what happened, even though they were …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2005 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, civil procedure, statutory interpretation, personal jurisdiction, subject matter jurisdiction, and other issues of interest to the trial practitioner.

Class Actions, Thomas M. Byrne

Mercer Law Review

After an eventful 2004, in which the Eleventh Circuit Court of Appeals explored in depth the class certification requirements of Rule 23 of the Federal Rules of Civil Procedure, the court's 2005 docket presented more threshold questions concerning whether or not putative class actions could proceed past the pleading stage. The court's most important class action decisions during the year addressed the efficacy of contract provisions designed to preclude class actions in favor of individual arbitration proceedings. This issue is among the most controversial in class action law, as many businesses have turned to using standard arbitration provisions to curtail …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

Faculty Publications

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …

Courting Failure, Lynn M. Lopucki

Buffalo Law Review

No abstract provided.

Venue Choice: Where The Action Is, William C. Whitford

Buffalo Law Review

No abstract provided.

European Implications Of Bankruptcy Venue Shopping In The U.S., David A. Skeel Jr.

Buffalo Law Review

No abstract provided.

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

Faculty Scholarship

No abstract provided.

The Optimal Law Enforcement With Mandatory Defendant Class Actions, Nelson Rodrigues Netto

ExpressO

In this article we argue that the optimal law enforcement system is based on an ideal mechanism to prevent and redress harms in the mass information society. This goal is achieved by means of mandatory defendant class actions.

The idea of mass society has evolved in time since the beginning of the industrialization in the 18th century. At that time, the transformation of the means of production from artisanal craftwork to large scale machinery work, forged the concept of mass production. Nowadays, massive and expeditious relationships are created by sophisticated communications links, especially the Internet, furnishing services and goods, which …

The Optimal Law Enforcement With Mandatory Defendant Class Action, Nelson Rodrigues Netto

ExpressO

In this article we argue that the optimal law enforcement system is based on an ideal mechanism to prevent and redress harms in the mass information society. This goal is achieved by means of mandatory defendant class actions.

The idea of mass society has evolved in time since the beginning of the industrialization in the 18th century. At that time, the transformation of the means of production from artisanal craftwork to large scale machinery work, forged the concept of mass production. Nowadays, massive and expeditious relationships are created by sophisticated communications links, especially the Internet, furnishing services and goods, which …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Medical Malpractice Litigation And Tort Reform: It's The Incentives, Stupid, David A. Hyman, Charles Silver

Vanderbilt Law Review

Health care providers and tort reformers invariably claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non- negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. They complain that compensation flows almost randomly, winding up …

Active Water Resource Management: Tools For Better Water Management, John D'Antonio

Publications

No abstract provided.

Water For Energy In The Southwest: Where Will It Come From?, Marilyn C. O'Leary

Publications

No abstract provided.

Amending Perpetual Conservation Easements: A Case Study Of The Myrtle Grove Controversy, Nancy A. Mclaughlin

University of Richmond Law Review

This article explores the issue of amending perpetual conservation easements by examining the Myrtle Grove controversy, in which the National Trust for Historic Preservation in the United States (the "National Trust")" "conceptually approved" a request made by a successor owner of land encumbered by a perpetual conservation easement to substantially amend the easement. Several months later, as a result of public opposition to the amendments and a reassessment of its position, the National Trust withdrew that approval. The owner of the encumbered land subsequently filed a suit for breach of contract, and the National Trust and the Attorney General of …

Why Does The Chesapeake Bay Need Litigators?, Jon A. Mueller, Joseph Tannery

University of Richmond Law Review

No abstract provided.

Water For Energy In The Southwest: Finding Water For Mohave, Stanley M. Pollack

Publications

No abstract provided.

Provincializing Transitional Justice: Reading The International Criminal Tribunal For Rwanda Against The Grain, Jatin Dua

Archived Theses and Dissertations

No abstract provided.

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

The Application Of Federal Common Law To Overcome Conflicting State Laws In The Supplemental Disgorgement Proceedings Of An Sec Appointed Receiver, Gauhar Naseem

ExpressO

In spite of the Erie doctrine, the application of federal common law has survived to overcome conflicting state laws in diversity actions where a federal law, interest or function is implicated. A federal court’s authority to substantively implement a federal common law rule over state law is clearest when the party to the action is a federal entity, namely an agency of the U.S. Government deriving its authority from the Constitution or some source of federal law. Analyzing such authority becomes more difficult in circumstances where parties to a diversity lawsuit are private citizens (not necessarily possessing any direct federal …

Judicial Discretion To Condition, Thomas O. Main

ExpressO

The task of judging has been described as the art or science of making discrete choices among competing courses of action. Charged with the mandate to administer justice fairly and equitably, judges are said to have discretion to pursue any lawful course. In both criminal and civil cases, and regarding matters profound and trivial, the exercise of discretion is a core judicial function. The exercise of discretion is often characterized by vivid metaphors: judges confront a frame of possibilities, a zone, a range, a doughnut hole, two paths or a fork in the road, a fenced pasture.

Above all else, …

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

Spread Spectrum Is Good-But It Does Not Obsolete Nbc V. U.S.!, Charles Jackson, Raymond Pickholtz, Dale Hatfield

Federal Communications Law Journal

The Authors criticize recent statements by leading legal commentators suggesting that the development of spread spectrum has eliminated radio interference and helped make the underlying legal foundations for regulating spectrum obsolete. The Authors provide a non-technical explanation of how spread spectrum works and why it does not have the effect of eliminating radio interference. The Authors conclude that new technologies are likely to increase the availability of usable spectrum, but they have not wiped out the problem of interference.