Litigation Commons^™

Are Class Actions Unconstitutional?, Alexandra D. Lahav

Michigan Law Review

Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

The Price Of Pay To Play In Securities Class Actions, Adam C. Pritchard, Stephen J. Choi, Drew T. Johnson-Skinner

Articles

We study the effect of campaign contributions to lead plaintiffs—“pay to play”—on the level of attorney fees in securities class actions. We find that state pension funds generally pay lower attorney fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity, and larger funds negotiate for lower fees. This differential disappears, however, when we control for campaign contributions made to offcials with infuence over state pension funds. This effect is most pronounced when we focus on state pension funds that receive the largest campaign contributions and that associate repeatedly as lead …

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

Agenda: Western Water Law, Policy And Management: Ripples, Currents, And New Channels For Inquiry, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

In many pockets of the American West, stresses and demands on water resources are overwhelming our capacity to effectively manage change and accommodate the diversity of interests and values associated with our limited water resources.

This event will offer an opportunity for lawyers, policymakers, and water professionals to engage the experts on the challenges and emerging solutions to the most pressing water policy and management issues of the day.

Slides: Oil Shale Water Use: Upsetting The Apple-Cart Of River Habitat, Irrigation And Existing Water Rights?, Bart Miller

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Bart Miller, Western Resource Advocates, Boulder, CO

13 slides

Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays

University of Michigan Journal of Law Reform

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin

University of Michigan Journal of Law Reform

This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney's duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. …

Protocol For Attorneys Representing Parents In Child Protective Proceedings, Frank E. Vandervort, Vivek S. Sankaran

Other Publications

This protocol is intended to guide attorneys through the strategic decisions they will need to make while representing parents in child protective cases. The protocol does not provide a comprehensive action-step checklist. Parents’ attorneys can find that kind of guidance in other resources, including the “How-To-Kit: Representing Parents in Child Protective Proceedings” by the Institute of Continuing Legal Education; “Guidelines for Achieving Permanency in Child Protection Proceedings” by Children’s Charter of the Courts of Michigan; and the American Bar Association’s “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases.”1 For its part, this protocol delves more substantively …

Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger

Articles

Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why the “Haves” Come Out Ahead, Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the …

Why Children Still Need A Lawyer, Marcia Robinson Lowry, Sara Bartosz

University of Michigan Journal of Law Reform

Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and wellbeing and to reconnect them with a permanent family, hopefully their own.

Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care …

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.

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Articles

THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung

Articles by Maurer Faculty

Do attorneys really add value or can unrepresented parties achieve equivalent results? This fundamental question ordinarily is difficult to answer empirically. An equally important question both for attorneys and the justice system is whether attorneys prolong disputes or instead facilitate expeditious resolution of cases.

Fortunately, there is a federal court that provides an excellent laboratory in which to test and answer these questions. In the United States Tax Court (Tax Court), where most federal tax cases are litigated, the government always is represented by Internal Revenue Service attorneys but a large portion of the taxpayer litigants proceed pro se. In …

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

When Congress enacted the Private Securities Litigation Reform Act in 1995 ("PSLRA"), the Act's "lead plaintiff' provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel's compensation. Congress's stated purpose in enacting the lead plaintiff provision was to encourage institutional investors-pension funds, mutual …

Maps Of The Klamath Basin And Key Water-Related Events In The Upper Klamath Basin, University Of Colorado Boulder. Natural Resources Law Center

Water Negotiation Workshop (June 4-5)

5 pages.

Contents:

Maps of Klamath Basin -- Key water-related events in the Upper Klamath Basin

Excerpted from: Ron Hathaway & Teresa Welch, Water Allocation in the Klamath Reclamation Project, 2001: An Assessment of Natural Resource, Economic, Social, and Institutional Issues with a Focus on the Upper Klamath Basin 31-34, 43 (Oregon State University, University of California, reprinted May 2003). Full report available in Klamath Waters Digital Library at http://digitallib.oit.edu/cdm/ref/collection/kwl/id/9442.

An Overview Of The Sarbanes-Oxley Act And Its Implications For Attorneys, Jeffrey W. Stempel

Scholarly Works

On July 30, 2002, President Bush signed the Sarbanes-Oxley Act of 2002, H.R. 3763, well-publicized in the press as a legislative response to the perceived excesses of corporate America: Enron; WorldCom; Tyco; Global Crossing, etc.

The Sarbanes-Oxley Act of 2002 contains an array of provisions affecting lawyers as professionals serving businesses and contains one provision that will clearly impact corporate counsel in the ethical discharge of their duties. Section 307 of the Act and the recently released Proposed Roles of the Securities Exchange Commission regarding lawyer duties and implementation of Section 307 require counsel to go "up the ladder," to …

Some Steps Between Attitudes And Verdicts, Phoebe C. Ellsworth

Book Chapters

Most research that has attempted to predict verdict preferences on the basis of stable juror characteristics, such as attitudes and personality traits, has found that individual differences among jurors are not very useful predictors, accounting for only a small proportion of the variance in verdict choices. Some commentators have therefore concluded that verdicts are overwhelmingly accounted for by "the weight of the evidence," and that differences among jurors have negligible effects. But there is a paradox here: In most cases the weight of the evidence is insufficient to produce firstballot unanimity in the jury (Hans & Vidmar, 1986; Hastie, Penrod, …

Practicing "In The Interests Of Justice" In The Twenty-First Century: Pursuing Peace As Justice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In these comments I suggest that in our current world, both international and domestic, practicing "in the interests of justice" includes-indeed, should give great priority to-the "peace-seeking" and "problem solving" aspects of lawyering. I continue to see this as counter-cultural to the more common practices of lawyers who are argumentative, persuasive and articulate debaters, who believe fervently and vigorously that seeking justice, on behalf of a client or cause, means advocating for and "winning" a legal claim. To the contrary, seeking peace for parties (and, indeed, nation-states) in conflict, searching for consensus solutions to seemingly intractable public policy and legal …

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Poverty Lawyering In The Golden Age, Matthew Diller

Michigan Law Review

A Review of Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 by Martha F. Davis

Interpreting Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Democratic Responses To International Terrorism, Christopher L. Blakesley

Scholarly Works

This volume provides a multidisciplinary study of terrorism. The editor notes at the outset the difficulty of definition: "Terrorism is not a one-dimensional problem; it transcends many frontiers: political, jurisdictional, institutional, disciplinary and methodological. So approaching the problem from only one perspective may lead to only partial understanding and an incomplete strategy for developing constructive responses” (p. 3). Note the tendency of even this careful statement to assume that terrorism is always committed by others, Also, although legal definition and consideration may be implied by the terms polical, jurisdictional, institutional and disciplinary, which are indicated as various dimensions of …

Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper

Articles

Discovery practice continues to be the single most troubling element of contemporary procedure. To be sure, the system seems to work well in a high proportion of all federal cases. The proportion may seem astonishingly high in relation to the amount of attention devoted to discovery. The discovery problems that occur in a relatively small proportion of the federal caseload, however, impose serious burdens on the parties and the court system. Every proposal that addresses discovery "abuse" deserves serious attention. These comments focus on the discovery abuse portion of the paper by Cooter and Rubinfeld. Questions are posed that may …

Three Attorney Fee-Shifting Rules And Contingency Fees: Their Impact On Settlement Incentives, Bradley L. Smith

Michigan Law Review

This Note seeks to predict the direction and magnitude of the change in settlement frequency under the three fee-shifting rules: American, British, and the British rule as modified by the PCC. Part I analyzes the proposed rule using the theoretical model of litigation and settlement developed by Hause. Part II examines the impact of fee-shifting when the plaintiff's lawyer receives reimbursement via a contingency fee. Analysis of indemnification in a contingency fee context raises several policy issues which section II.A addresses. Section II.B discusses the terms and assumptions made in adjusting Hause's model to reflect the standard contingency fee arrangement, …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

Risk, Courts, And Agencies, Clayton P. Gillette, James E. Krier

Articles

Public risks are precisely the risks that have recently captured the attention of the legal community and the world at large, in no small part because they give rise to such novel problems for lawyers and such grave apprehensions among lay people. Public risks have moved the legal system to relax doctrines--regarding, for example, standards of causation and culpability, burdens of proof, sharing of liability--that were designed to deal with the private risks that once dominated the landscape. And public risks have moved lay people to intensify their demands for risk control measures. These developments suggest that public risks are …

A Rededication, John W. Reed

Other Publications

The delivered keynote address during the April 18, 1988, dedication of the new Lansing courtroom of the United States District Court for the Western District of Michigan.