Litigation Commons^™

Expert Asymmetry: Evidence From Securities Litigation, Adam Callister, Andrew Granato, Belisa Pang

Articles

Modern litigation often involves two separate, extra-legal features: (1) contingency fee arrangements with the plaintiff-side attorney, and (2) a “battle of the experts” where the outcome of the case rests on conflicting expert witness testimony. We construct a model to illustrate that when these features occur simultaneously, in contexts where plaintiff-side attorneys bear the cost of hiring experts upfront, defendants will spend systematically more than plaintiffs on hiring expert witnesses. Our model is motivated by hand-collected data from a decade of securities class action litigation, where we show that experts polarize into almost entirely plaintiff-side versus defense-side experts, that defense-side …

Curbing Unsupported Claims In Mass Tort Litigation, Cary Silverman

University of Cincinnati Law Review

No abstract provided.

Leeds V. Norfolk Southern Railway Company—In Undoing Late Removal, District Court Gives Guidance On Evaluating Whether Defendants Were Joined In “Bad Faith”, Geoffrey D. Kearney

SLU Law Journal Online

Pursuant to 28 U.S.C. § 1446, defendants typically have one year to remove to federal court a case filed in state court. The landscape for removal changed somewhat with a 2011 amendment to this statute, which extends that one-year deadline upon a showing “that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

But the question of what sort of conduct satisfies this provision persists. Since its passage, courts—primarily district courts—have grappled with just what it means for a plaintiff to act in bad faith to thwart removal. Leeds v. Norfolk Southern …

The Civil Justice Business, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Our civil justice system rests on foundational commitments: to make rights real for those the law protects, whatever their station; to hold wrongdoers accountable, whatever their power; and to deter misconduct in a system that depends heavily on private enforcement. We put great faith in these values.

Civil justice, for all its lofty goals, is also a business. Attorneys and liability insurers have long held economic stakes in litigation, bounded by their own professional and regulatory norms. Now, a new litigation finance industry has arisen: outside investors supply equity capital—divorced from legal representation and liability management—and take returns directly from …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

Small Claims Mediation In Maine: An Empirical Assessment, Craig A. Mcewen, Richard J. Maiman

Maine Law Review

In recent years considerable attention has been paid in the United States to the development of informal "alternatives to court" as part of a world-wide access to justice movement. Of these alternatives to courts, mediation contrasts most sharply with adjudication and, in theory, promises much by way of decreasing the alienation of citizens when it is made an adjunct to the formal judicial process. The contrast and promise stem largely from the participatory and consensual character of the mediation process. A third party to the dispute—the mediator—encourages the parties to find a mutually agreeable settlement by helping them to sharpen …

Civil Juries In Maine: Are The Benefits Worth The Costs?, Donald Alexander

Maine Law Review

Throughout this century, legal scholars have vigorously criticized civil juries with little apparent effect. Despite the civil jury's long history of successful resistance to change, new considerations make it imperative that we conduct a fundamental review of the functioning of the civil jury as an instrument of justice for the twenty-first century. That review has begun in Maine. Under the direction of the Maine Supreme Judicial Court, a comprehensive jury management study has just been completed. Proposals for changes in jury management and efficiency are now being developed. As part of this process, we can simply perpetuate the past or …

Fee-Shifting Shortcuts, Maureen Carroll

Articles

Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant.

This …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

In Defense Of Civil Juries, Peter W. Culley

Maine Law Review

Criticism of the civil jury system is nothing new. In fact, virtually since its inception the civil jury has been embroiled in controversy. Typically critics argue that: the jury cannot handle the complex or technical case; there is great expense and delay attendant to trial by jury; jury adjudication is of low quality; verdicts rendered by different juries in cases involving similar facts often appear inconsistent. Recently, Justice Donald Alexander of the Maine Superior Court stated that "[t]he civil jury system has outlived its usefulness." In support of his basic premise that the civil jury system is merely an historical …

A Toothless Tcpa: An Analysis Of Article Iii Standing, Personal Jurisdiction, And The Disjuncture Problem’S Impact On The Efficacy Of The Telephone Consumer Protection Act, Sebastian W. Johnson

University of Cincinnati Law Review

No abstract provided.

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman

Scholarly Works

Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?

These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find …

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Faculty Journal Articles and Book Chapters

Among the most significant—and by some estimations the most controversial—transformations of the federal appellate system occurred in the late 1960s and 1970s with effects still felt today: the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been subject to intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …

Home Court Advantage? An Empirical Analysis Of Local Bias In U.S. District Court Diversity Jurisdiction Cases, Kyle C. Kopko, Christopher J. Devine

West Virginia Law Review

In granting diversity of citizenship jurisdiction to the federal courts, there is an underlying assumption that federal courts will be less biased toward out-of-state litigants as compared with state courts. While this may be true, the assumption fails to consider an important empirical question: to what extent do federal courts favor home state litigants or disfavor out-of-state litigants when deciding diversity jurisdiction cases? Relying on the Integrated Database (IDB) compiled by the Federal Judicial Center and the Administrative Offices of the U.S. Courts, we present an original, empirical analysis of diversity jurisdiction case outcomes in the U.S. districts courts from …

White-Collar Courts, Merritt E. Mcalister

UF Law Faculty Publications

Article III courts are white-collar courts. They are, scholars have said, “special.” They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite—jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was …

Examination Of Eviction Filings In Lancaster County, Nebraska, 2019–2021, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The study examined and analyzed eviction filings and proceedings in Nebraska, with a specific focus on Lancaster County—the home to the State’s capital, Lincoln. The primary objective of this study is to place eviction proceedings under a microscope to gain a better understanding of the volume of evictions in Nebraska, and whether the statutorily mandated processes are being followed. The study also attempts to capture the impact of certain external factors present during the period examined. Such factors include the COVID-19 pandemic and various eviction moratoria in place during 2020 and 2021, as well as the increased availability of legal …

Ford's Underlying Controversy, Christine P. Bartholomew, Anya Bernstein

Faculty Scholarship

Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to a cause of action or its elements, while others understand it to encompass the controversy underlying the litigation. What is worse, few have noticed that these discrepancies even exist, much less explained why. This Article does just that. We show that …

Mapping The Civil Justice Gap In Federal Court, Roger Michalski, Andrew Hammond

Faculty Articles

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live. Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information …

Endangered Claims, Brooke D. Coleman

William & Mary Law Review

Litigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct.

This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the …

Frivolous Defenses, Thomas D. Russell

Cleveland State Law Review

This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Disrupting Frivolous Defenses, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of 93 after 37 years as a judge of the United States District Court for the Northern District of Illinois. Sua sponte, Judge Shadur reviewed civil answers, and disrupted the pleading of frivolous defenses. Sua Sponte Shadur—as some lawyers called him—rejected answers that departed from or ignored Rule 8 of the Federal Rules of Civil Procedure.

In 2001, Judge Shadur issued an Appendix to an order in State Farm v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) with his expectations regarding how …

Frivolous Defenses, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This article is about civil procedure, torts, insurance, litigation, and professional ethics. This is an empirical piece with data drawn from a sample of 356 answers to 298 complaints in car crash lawsuits to identify various ways that, I argue, insurance defense lawyers evade the rules of civil procedure and, frankly, act unprofessionally.

The empirical center of this piece examines 356 answers in car crash personal injury cases in Colorado’s district courts. First, I situate these cases within dispute pyramid elements including the total number of miles-traveled within Colorado and also with respect to the volume of civil litigation.

The …

Appellate Courts And Civil Juries, Adam N. Steinman

Faculty Scholarship

In federal civil litigation, decision-making power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury’s verdict …

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.