Litigation Commons^™

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

Scholarly Works

Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model," while the second is a draft of settlement-class provisions for Federal Rule of Civil …

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

The following essay is the pre-editing draft of the introduction to a paper delivered at a Mass Torts conference held at the University of Pennsylvania Law School in November 1999. Thc conference grew out of the work of the ad hoc Mass Torts Working Group that on February 15, 1999, delivered a Report to the Chief Justice of the United States and the judicial Conference of the United States. The Working Group, chaired by Third Circuit Judge Anthony J. Scirica, '65, included members drawn from several Judicial Conference committees, including the Advisory Committee on the Federal Rules of Civil Procedure, …

Rethinking Statutory Antiwaiver Provisions Following The Lloyd's Of London Litigation, Mark J. Loewenstein

Publications

In the Lloyd's of London cases, the United States Courts of Appeals upheld certain forum-selection clauses that effectually deprived investors of the protections of the federal securities laws as if the investors had expressly waived those protections. This article examines statutory antiwaiver provisions in light of the Lloyd's cases, exploring the effect those provisions have on the administration of the federal securities laws, and suggests that the law be amended to allow contractual waiver in certain circumstances.

Symposium, The Florida Tobacco Litigation -- Fact, Law, Policy, And Significance, Jeffrey W. Stempel

Scholarly Works

This is the transcript of the Florida tobacco litigation symposium, discussing the s$11.3 billion settlement concerning tobacco in the state of Florida. Jeffrey W. Stempel served as co-chair and moderator of the symposium.

Mass Tort Litigation And Inquisitorial Justice, Howard M. Erichson

Faculty Scholarship

In the past decade, settlement class actions have become increasingly popular in mass tort litigation, having been used successfully in cases such as the Dalkon Shield litigation, the Bjork-Shiley heart valve litigation, and the orthopedic bone screw litigation. Although the Supreme Court's opinion in Amchem has engendered some confusion over the continued viability of mass tort settlement class actions, it appears that such settlements remain a dominant approach to resolving mass tort lawsuits. With increasing frequency, plaintiffs and defendants come to court holding hands, and courts must launch their own vigorous inquiries into the merits of the parties' proffered settlement. …

A New Options Theory For Risk Multipliers Of Attorney's Fees In Federal Civil Rights Litigation, Peter H. Huang

Publications

Given the importance of private enforcement of federal civil rights laws, Congress and the courts have attempted to encourage plaintiffs' attorneys to accept meritorious civil rights cases through fee shifting and risk multipliers. Recently, however, the Supreme Court has essentially prohibited the use of risk multipliers, thus undercompensating attorneys for the risk of losing civil rights actions and discouraging the filing of such cases. In this Article, Professor Huang develops a new options-based theory of calculating attorney's fees. Professor Huang argues that a lawsuit consists of a sequence of options to continue with the case rather than a once-and-for-all irreversible …

Using Decision Trees As Tools For Settlement, Marjorie Corman Aaron

Faculty Articles and Other Publications

While experienced lawyers can some­ times develop an intuitive sense of what a case is worth, their intuition may not be sufficient in a case of considerable complexity. Furthermore, intuitive "gut sense" valuations are hard to support or explain to clients.

Decision trees allow the parties and their lawyers to see more clearly how the strengths and weaknesses of their positions on specific issues will affect the overall value of a case. Long popular in the business community, deci­sion analysis has evolved as a tool for lawyers to help make decisions in complex litigation.

Agenda: Moving The West's Water To New Uses: Winners And Losers, University Of Colorado Boulder. Natural Resources Law Center

Moving the West's Water to New Uses: Winners and Losers (Summer Conference, June 6-8)

Conference organizers and/or faculty included University of Colorado Law School professors Lawrence J. MacDonnell and Mark Squillace.

Moving the West's Water to New Uses: Winners and Losers will be the theme for this year's water conference, June 6-8 at the Law School in Boulder. The conference will consider the changing demands for water in the West and the need to reallocate a portion of the existing uses of water to new uses.

The first day will provide the background by looking at the most likely sources of water to meet these demands, including agriculture, federal water projects, interstate transfers, and …

Studying Civil Litigation Through The Class Action, Bryant G. Garth

Indiana Law Journal

No abstract provided.

Agenda: The Public Lands During The Remainder Of The 20th Century: Planning, Law, And Policy In The Federal Land Agencies, University Of Colorado Boulder. Natural Resources Law Center

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

Conference organizers and/or speakers included University of Colorado School of Law professors Lawrence J. MacDonnell and Charles F. Wilkinson.

Public land management has undergone major changes in recent years in response to the greatly increased planning responsibilities mandated by Congress.

Public Lands During the Remainder of the 20th Century: Planning Law and Policy in the Federal Land Agencies looked at management and planning issues related to seven major resources in the public lands: timber, rangeland, minerals, wildlife, water, recreation, and preservation values. Charles F. Wilkinson, Professor of Law, University of Colorado, gave a luncheon talk on "Public Land Planning: Will …

Contribution, Claim Reduction, And Individual Treble Damage Responsibility: Which Path To Reform Of Antitrust Remedies?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Antitrust violations traditionally have been viewed as statutory torts, yet tort principles of damage allocation, including contribution and claim reduction, have not been extended by analogy in the federal courts to antitrust cases. Moreover, the principle of joint and several liability, made applicable to antitrust conspirators by judicial fiat some eighty years ago, has gone largely unchallenged. While the federal antitrust laws are nearly a century old, the damage allocation debate is of recent vintage, emerging in the wake of the Electrical Equipment Cases, when the private treble damage remedy came into its own.

The recent emergence of …

The New Cercla Amendments—What Are They? What Do They Mean?, David R. Andrews

Getting a Handle on Hazardous Waste Control (Summer Conference, June 9-10)

35 pages.

Motions To Enforce Settlements: An Important Procedural Tool, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Attorney-Client Conflicts Of Interest And The Concept Of Non-Negotiable Fee Awards Under 42 U.S.C. § 1988, Emily M. Calhoun

Publications

No abstract provided.

Ogallala Ground Water, Morton W. Bittinger

Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9)

12 pages.

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …

Fair Dealing In Personal Injury Cases, Philip J. Hermann

Cleveland State Law Review

It is submitted that where there is fair dealing on the part of plaintiff's attorney and insurance company, a great deal of needless expense to both will have been eliminated enabling insurance companies to handle their claims and lawsuits with fewer personnel and smaller defense fees. And plaintiff's attorneys on their part, will be able to bring to conclusion more work during the course of a year; and where a staff is required, they will be able to operate with fewer personnel. The result to the plaintiff's attorney will be an increase in net income and perhaps more time for …

Appeasement Of Tort Claimants, S. Burns Weston

Cleveland State Law Review

Justice does not always mean that a case should be tried. By the same token, justice does not always mean that every case should be settled without trial. One of our difficulties is that too often there is more interest in the expedient settlement of differences between litigants than in a judicial determination of rights according to principles of law.

Pre-Trial In The Courts: An Opinion, Aaron Jacobson

Cleveland State Law Review

No claim is made, it is true, that pre-trial is the panacea for what ail the courts. But in adopting it, there seems to have been a haste which has bypassed the usual introspective examination characteristic of our judiciary. A critical examination, as seen by this writer, would take the form of two broad questions: One- Is pre-trial, viewed in the overall perspective of the administration of justice, a healthy additive to the courts? Two- If so, is it an end in itself, or is it simply one of a number of modernizing influences, without all of which it remains …