Litigation Commons^™

The Difficulty Of Discerning The Effect Of Neuroscience: A Peer Commentary Of Shen Et Al. 2018, John B. Meixner Jr.

Scholarly Works

Neuroscience is often considered to have a certain ‘seductive allure’.1 Its mystique should not besurprising. Seeking to understand the network of nearly 100 billion neurons that make up the human brain, neuroscience examines some of the most difficult questions imaginable. And yet, it is also a deeply personal discipline—questions like, ‘How do we create memories?’ and ‘What causes emotions?’ touch on experiences shared by all people.

Does the mystique of neuroscience cause individuals to ascribe undue weight to neuroscientific findings, or assume that neuroimages indicate research quality? Over the past decade, a literature has sprung up seeking to answer questions …

Publicly Funded Objectors, Elizabeth Chamblee Burch

Scholarly Works

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. …

Practitioners' Perception Of Court-Connected Mediation In Five Regions: An Empirical Study, Shahla F. Ali

Vanderbilt Journal of Transnational Law

Courts throughout the world face the challenge of designing court mediation programs to provide opportunities for party-directed reconciliation on the one hand, while ensuring access to formal legal channels on the other. In some jurisdictions, mandated programs require initial attempts at mediation, while in others, voluntary programs encourage party-selected participation. This Article explores the attitudes and perceptions of eighty-three practitioners implementing court mediation programs in five regions in order to understand the dynamics, challenges, and lessons learned from the perspectives of those directly engaged in the work of administering, representing, and mediating civil claims. Given the highly contextual nature of …

How Should Damages Be Calculated For Design Patent Infringement?, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

The False Allure Of Settlement Pressure, Nicholas Almendares

Articles by Maurer Faculty

The threat of “blackmail” or “in terrorem” settlements have shaped the law, leading courts to conclude that if the plaintiff does not appear likely to win the case, then the litigation should be halted at an early stage. This Article questions the established logic of settlement pressure. After clarifying the concept and presenting the strongest case for it, I show that it cannot serve as the basis for wide-ranging civil procedure doctrines. Doing so has perverse results, such as privileging the defendant’s idiosyncratic tastes and helping corporate managers hide important facts from their shareholders. In addition, settlement pressure is not …

Resolving The Crisis In U.S. Merger Regulation: A Transatlantic Alternative To The Perpetual Litigation Machine, Dan Awrey, Blanaid Clarke, Sean J. Griffith

Faculty Scholarship

Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived them of potentially valuable rights. Regulation by litigation has devolved into attorney rent-seeking, and the raft of substantive and procedural reforms aimed at resolving the crisis has failed. There is an alternative to regulation by litigation. Drawing upon the code and panel-based models of merger …

Expanding The Search For America's Missing Jury, Richard Lorren Jolly

Michigan Law Review

A review of Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries.

Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant

Oklahoma Law Review

No abstract provided.

Will The Jury System Survive The Peña-Rodriguez Exception To Rule 606(B)?: The Court’S Response To Racial Discrimination By A Juror Leaves The Future Of The American Jury Trial System In Jeopardy, Taurus Myhand

Scholarly Works

The enforcement of no-impeachment rules has been a long-standing tradition in the United States preventing jurors from offering testimony as to impeach their own verdict. In March 2017, the Supreme Court changed course from centuries of jurisprudence and superseded the Federal Rules of Evidence with a new exception to Rule 606(b) in the Court’s decision in Peña-Rodriguez v. Colorado. The Court’s effort to “root out” racial bias in the justice system resulted in the debunking of the legislative authority granted to the Congress while creating an exception that does little, if anything, toward eliminating racial bias during jury deliberations. In …

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

The Litigators: Perceptions Of Predictability, Definitions Of A Good Outcome, And An Alternative To Mass Tort Trials, Lisa K. Dicker, Shane K. Hebel

Faculty Publications

(Excerpt)

A pervasive theme in our understanding of civil legal disputes is the “big case”; that is, the generic mass tort that pits sympathetic clients against shadowy, villainous corporations. In John Grisham’s stories about these cases, a David-and-Goliath legal battle ensues, the parameters of the law shift, the attorneys’ ethics stretch, and the author uses characters to reveal both sides’ deep secrets unwillingly—and sometimes unwittingly. Ultimately, the case leads to a “win” for one side or the other—either a huge payday for the clients and a large percentage-based fee for the lawyers who stumbled across it, or a corporation that …

Arbitration Law Update: 2017-2018, Teresa J. Verges, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes the leading federal and state arbitration cases during the last year that are of particular relevance to the securities arbitration practitioner. In its sole arbitration decision during the 2017-18 term, the U.S. Supreme Court held in Epic Systems Corp. v. Lewis that employers could require their employees to waive their right to class actions and collective arbitration. Courts also addressed a host of novel issues, including whether investors can force a non-FINRA member and municipal bond indentured trustee to arbitrate before FINRA, the arbitrability of claims against a cryptocurrency exchange, and the applicability of a state's …

Courts As Information Intermediaries: A Case Study Of Sovereign Debt Disputes, Sadie Blanchard

Journal Articles

When foreign sovereigns default on their debt, creditors sometimes sue them. These creditors are sophisticated actors, and they sue even though courts can do little to force a sovereign to satisfy a judgment. Why do they sue? This Article argues that courts serve as information intermediaries that strengthen reputational enforcement in the international sovereign debt market. It shows, through a case study of sovereign debt defaults and disputes, three ways in which courts play this role. First, in hard cases, courts clarify reputational signals by publicly determining whether breach occurred. Second, through discovery and fact finding, they mitigate information asymmetries …

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

Public Defense Litigation: An Overview, Lauren Sudeall Lucas

Faculty Publications By Year

No abstract provided.

Equity Or Inequality: Defining Bad Faith In Involuntary Bankruptcy, Carlos Wilder

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Criminal Law - Extra Extra Read All About It: Sex Offender's Request For Reclassification - Noe V. Sex Offender Registry Bd., No. Sucv2014-02071-A, 2017 Mass. Super. Lexis 9 (Mass. Super Ct. Mar. 28, 2017), Keshia L. Blair

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Criminal Law - Determining When, If Ever, Sex Offender Registration Applies To Juvenile Defendants - Commonwealth V. Samuel S., 69 N.E.3d 573 (Mass. 2017), Jennifer M. Plummer

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Think Fast: Post Judgment Considerations In Hague Child Abduction Cases, Timothy L. Arcaro

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Lessons For Legalizing Love: A Case Study Of The Naz Foundation's Campaign To Decriminalize Homosexuality In India, Preston G. Johnson

Capstone Collection

In 1860, British colonizers codified Section 377 into the Indian Penal Code. 377 is an anti-sodomy law based on Victorian/Judeo-Christian values which criminalizes homosexuality through judicial interpretation and the manipulation of ambiguous language. On August 15^th, 2017, India celebrated 70 years of independence from British control, yet 377 still exerts oppressive control over the safety and freedom of Indian LGBTQI communities. Defining queerness as perversion has caused LGBTQI individuals to become victims of false accusations, blackmail, harassment, housing and workplace discrimination, familial rejection, forced “conversion therapy”, assault, rape, torture, and even murder because of this power imbalance and …

The New York Court Of Appeals' Expansion Of The Definition Of The Term “Parent” Leaves Future Questions Unanswered, Ilana Sharan

Journal of Law and Policy

On August 30, 2016, the New York Court of Appeals in Brooke S.B. v. Elizabeth A.C.C., expanded the definition of the term “parent,” overruling the twenty-five-year-old bright line rule that limited standing to seek custody or visitation to traditional parents. In 1991, the New York Court of Appeals decided Alison D. v. Virginia M. where they defined “parent” to include only people who have a biological or adoptive relationship with the child, reasoning that the typical family consisted of a husband and wife. In many cases subsequent to Alison D., the court attempted to alleviate the harsh application this rule …

Cutting Off The Umbilical Cord–Reflections On The Possibility To Sever The Parental Bond, Tali Marcus

Journal of Law and Policy

Parenthood is a status comprising exclusivity relating to the rights and responsibilities concerning the child. The rights and obligations imbued in the parental status are evident first and foremost during the child’s minority. Nonetheless, the status has legal meaning and implications that extend beyond the child’s minority and carry on throughout adulthood. By defining parenthood and assigning parental status, the law establishes legal as well as social responsibility towards the child and a bond for life. This article questions the eternal aspect of parenthood and aspires to initiate discussion pertaining to the social and legal conventions that pose parenthood as …

“Making Bail”: Limiting The Use Of Bail Schedules And Defining The Elusive Meaning Of “Excessive Bail”, James A. Allen

Journal of Law and Policy

Every day in the United States, thousands of people are waiting in jail postarrest prior to any trial or conviction. Once arrested, these individuals frequently face harsh conditions while they are held for their first appearance to be assigned bail. Thousands of individuals wait more than forty-eight hours to first appear in front of a judicial officer who determines their bail conditions. Innocent people––people who have committed no offense except that of being underprivileged––are pressured into accepting plea bargains because they cannot pay bail. Thousands remain in jail unwilling to accept plea bargains or admit guilt but are detained nevertheless …

No “Gift” Giving Here: The Inadequate Gifted Education Programs In New York State And The Need For Gifted Education Reform, Jamie M. Kautz

Journal of Law and Policy

Gifted Education is a topic that is often not at the forefront of educational issues throughout federal and state discussions and legislative actions. However, while there are a large number of students in classrooms across the country who are “gifted,” the number of individual states with comprehensive gifted programs within their public school districts is small. As a result, gifted programming is limited and gifted students are not guaranteed any sort of academic assistance beyond that of a standard classroom curriculum for their designated grade levels. More importantly, in the majority of states, including New York, the legal protections offered …

Copyright Infringement In Sound Recording: How Courts And Legislatures Can Get In Vogue In A Post-Ciccone World, Kristen B. Kennedy

Journal of Law and Policy

Music sampling is a legally complex and ambiguous area, with staggeringly high costs attached for copyright infringers. The legality of sampling frequently depends upon what jurisdiction the inquiry into the sampling takes place in, and has been guided by inconsistently applied doctrines of fair use, de minimis, and copyright infringement. The Ninth Circuit’s decision in VMG Salsoul v. Ciccone has dramatically highlighted these inconsistencies. This note suggests a four-part solution to resolve the tensions in copyrightable sound recordings magnified by the recent circuit split created by VMG Salsoul v. Ciccone. It incorporates elements of de minimis and fair use, a …

Trial Practice And Procedure, Brandon L. Peak, Tedra L. Cannella, Robert H. Snyder, David T. Rohwedder, Joseph M. Colwell, Christopher B. Mcdaniel, Rory A. Weeks, Ramsey B. Prather

Mercer Law Review

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the June 1, 2016 to May 31, 2017 survey period.

Case Law, Adam N. Steinman

Faculty Scholarship

Although case law plays a crucial role in the American legal system, surprisingly little consensus exists on how to determine the “law” that any given “case” generates. Lawyers, judges, and scholars regularly note the difference between holdings and dicta and between necessary and unnecessary parts of a precedent-setting decision, but such concepts have eluded coherent application in practice. There remains considerable uncertainty about which aspects of a judicial decision impose prospective legal obligations as a matter of stare decisis and to what extent.

This Article develops a counterintuitive, but productive, way to conceptualize case law: the lawmaking content of a …

Consumer Class Actions: Who Are The Real Winners?, Edward F. Sherman

Maine Law Review

The class action is one of the most controversial procedural devices in the American legal system. In the years since an expanded class action rule was adopted in 1966, class actions have grown in scope and number, and suits by consumers have accounted for an increasing share of class actions suits. By allowing individuals to sue not only for themselves, but also on behalf of others similarly situated, the class action “empowers plaintiffs to bring cases that otherwise either would not be possible or would only be possible in a very different form.” Business critics see this as enabling “lawyers …