Litigation Commons^™

Contractual Valuation Mechanisms And Corporate Law, Keith Sharfman

Faculty Publications

(Excerpt)

Legal valuation—the resolution of disputes over the value of legal entitlements—is an inevitable aspect of any legal system. Across time and place and doctrinal boundaries, the problem is the same: each side seeks to have a self-servingly high or low figure assigned to the entitlement in question, and a mechanism is needed to choose a conclusive value from a range of plausible outcomes. Usually the mechanism involves litigation of some sort, such as a trial before a judge, jury, or hearing officer. But not always.

This Article analyzes a transactional alternative to valuation litigation that has become increasingly popular: …

Summary Of Presentation: Climate Of Environmental Justice Conference, Michael B. Gerrard

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Michael B. Gerrard, Partner, Arnold & Porter LLP, New York, NY

2 pages.

Indigenous Peoples And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Rebecca Tsosie, Professor of Law, Arizona State University

1 page.

Healing Earth, Helping Neighbors: Using Brownfield Remediation Projects To Advance Environmental Justice [Outline], Willie Shepherd

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Willie Shepherd, Chairman and Co-Founder, Kamlet Shepherd & Reichert, LLP

2 pages.

"Presentation Outline"

Deadly Waiting Game: An Environmental Justice Framework For Examining Natural And Man-Made Disasters Beyond Hurricane Katrina [Abstract], Robert D. Bullard

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Robert D. Bullard, Ph.D., Professor of Sociology, Clark Atlanta University

1 page.

Action On Global Warming: Making Room For Tribal Governments In The New Kind Of Wedge Issue, Dean B. Suagee

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Dean B. Suagee, Of Counsel, Hobbs, Straus, Dean & Walker LLP, Washington, D.C.

1 page.

Second Generation Environmental Justice: Challenges And Opportunities, Rachel D. Godsil

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Rachel D. Godsil, Professor of Law, Seton Hall Law School

3 pages.

Slides: Environmental Justice: Comprehensive Approach, Nicholas Targ

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Nicholas Targ, Holland & Knight, former Associate Director for Environmental Justice Integration, Office of Environmental Justice, U.S. Environmental Protection Agency

16 slides

Climate Changes And The Poorest Nations: Further Reflections On Global Inequality, Ruth Gordon

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Ruth Gordon, Professor of Law, Villanova University School of Law

3 pages.

Climate Justice: The Next Movement [Outline], Richard J. Lazarus

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Richard J. Lazarus, Professor of Law, Georgetown University Law Center

2 pages.

Creating A Roadmap For Achieving Intergenerational Environmental Justice, Clifford Rechtschaffen

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Clifford Rechtschaffen, Professor of Law and Director, JD Environmental Law Program; Co-Director, Environmental Law and Justice Clinic, Golden Gate University School of Law

5 pages.

Agenda: The Climate Of Environmental Justice: Taking Stock, University Of Colorado Boulder. School Of Law

The Climate of Environmental Justice: Taking Stock (March 16-17)

On March 16-17, The Climate of Environmental Justice: Taking Stock conference gathered 125 academics and practitioners from around the country to consider the pressing issues facing low-income and/or communities of color that continue to be subjected to a disproportionate share of environmental maladies.

"Some people are more equal than others when it comes to bracing ourselves for the impacts of climate change," said conference organizer Professor Maxine Burkett. "Whether it's because poor folks lived in the lowest areas of New Orleans when Katrina floodwaters rushed in, or are less able to afford the cooling bill during increasingly frequent heat waves, …

The Litigation Explosin, Proposed Reforms, And Their Consequences, Michael D. Johnston

Brigham Young University Journal of Public Law

No abstract provided.

Crawford V. Washington And Davis V. Washington'S Originalism: Historical Arguments Showing Child Abuse Victims' Statements To Physicians Are Nontestimonial And Admissible As An Exception To The Confrontation Clause, Tom Harbinson

Mercer Law Review

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross-examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in …

Definitely Not Harmless: The Supreme Court Holds That The Erroneous Disqualification Of Retained Counsel Warrants Automatic Reversal In United States V. Gonzalez-Lopez, James A. Robson

Mercer Law Review

In United States v. Gonzalez-Lopez, the United States Supreme Court held that the erroneous disqualification of a criminal defendant's retained choice of counsel violates the Sixth Amendment to the United States Constitution and must result in the automatic reversal of the defendant's conviction. In reaching this conclusion, the Court rejected the Government's argument that a defendant who is denied his choice of counsel must prove prejudice by showing the defendant's substitute counsel was ineffective within the meaning of Strickland v. Washington. Instead, the Court concluded that because a complete violation of the Sixth Amendment's Counsel Clause occurs when …

Foreigners' Fate In America's Courts: Empirical Legal Research, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners’ aversion to U.S. forums can elevate the foreigners’ success rates, when measured as a percentage of …

Evidence Of The Need For Aggregate Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

In the experimental game designed by GÜTH et al. [2007], player 1 has promised to render a service to player 2. Player 1 either invests proper effort or shirks and performance may succeed or fail depending on random fluctuation. When player 1 fails to invest proper effort, and performance occurs or not through luck, player 2 must decide whether to punish player 1’s nonperformance. When the transaction fails, punishment may be sought through suing. When the transaction fails, player 2 may seek revenge or punishment though doing so incurs costs to player 2. The game’s design resembles civil enforcement rather …

Illuminating Secrecy: A New Economic Analysis Of Confidential Settlements, Scott A. Moss

Michigan Law Review

Even the most hotly contested lawsuits typically end in a confidential settlement forbidding the parties from disclosing their allegations, evidence, or settlement amount. Confidentiality draws fierce criticism for harming third parties by concealing serious misdeeds like discrimination, pollution, defective manufacturing, and sexual abuse. Others defend confidentiality as a mutually beneficial pay-for-silence bargain that facilitates settlement, serves judicial economy, and prevents frivolous copycat lawsuits. This debate is based in economic logic, yet most analyses have been surprisingly shallow as to how confidentiality affects incentives to settle. Depicting a more nuanced, complex reality of litigation and settlement, this Article reaches several conclusions …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

“Every Day And In Every Way, We All Are Becoming Meta And Meta," Or, How Communitarian Bargaining Theory Conquered The World (Of Bargaining Theory), Robert J. Condlin

ExpressO

Debate over the relative merits of communitarian and adversarial theories of dispute bargaining has pre-occupied legal bargaining scholarship for at least twenty years. Seen as a negotiation, this debate makes it clear that communitarians are by far the better bargainers. In a move one might think more characteristic of adversarial bargaining, communitarians have changed the definition of bargaining effectiveness by reconstituting the world in which bargaining operates (the meta move of the title – in communitarian terms they “changed the game by changing the frame”), to make adversarial bargaining obsolete. Many of the arguments and maneuvers used in this effort …

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems …

A Proposal To Amend Rule 407 Of The Federal Rules Of Evidence To Conform With The Underlying Relevancy Rationale For The Rule In Negligence And Strict Liability Actions, Ralph Ruebner, Eugene Goryunov

ExpressO

The current version of FRE 407 prevents the use of evidence of remedial measures taken after an event that caused an injury or harm in order to prove negligence, culpable conduct, or strict product liability. Our proposal is that the language of Rule 407 be amended to preclude the admissibility of remedial measures which are taken both before and after an injury. This change will implement the relevancy rationale for the rule.

The View From The Trenches: A Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur Hellman

ExpressO

In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants’ comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed …

Prosecutors: Factors To Aid Your Filing Decisions With Respect To Fatal Traffic Collisions, Kimberly Rebecca Bird

ExpressO

As you may know, on a fairly regular basis, prosecutors are faced with filing decisions with respect to fatal traffic collisions. Many of them, of course, do not involve criminal negligence and are not prosecuted as crimes. Sometimes, on the other hand, the circumstances are egregious and the decision to be made is whether to file a case as a vehicular manslaughter or as a murder, on an implied malice theory. There are a finite number of California Supreme Court and Court of Appeal cases (beginning with People v. Watson (1981) 30 Cal.3d 290) that have addressed the sufficiency of …

Discovering Discovery: Non-Party Access To Pretrial Information In The Federal Courts 1938-2006, Seymour Moskowitz

Law Faculty Publications

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where "private attorneys general" may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This …

Loud Rules, Wendy Gerwick Couture

Articles

No abstract provided.

Hemlock In The Marketplace: How Freedom Of The Press For College Newspapers Poisons The First Amendment, 40 J. Marshall L. Rev. 1365 (2007), Michael Hopkins

UIC Law Review

No abstract provided.

The Evolving Scope Of Significant Effects On The Environment: The National Environmental Policy Act And Climate Change, Chris Mcchesney

Sustainable Development Law & Policy

No abstract provided.

Against Genetic Exceptionalism: An Argument In Favor Of The Viability Of Preconception Genetic Torts, Daniel S. Goldberg

Journal of Health Care Law and Policy

No abstract provided.