Litigation Commons^™

Missing Mcveigh, Michael E. Tigar

Michigan Law Review

The bombing that killed at least 169 people became an event by which time was thereafter measured — at least in Oklahoma. Ninety minutes after the bombing, a state trooper arrested Timothy McVeigh on a traffic charge; within hours, he was linked to the bombing, and the legal process began. Terry Nichols, who had met McVeigh when they were in the army together, was arrested in Herington, Kansas, where he lived with his wife and daughter. The Tenth Circuit chief judge designated Richard Matsch, chief judge for the District of Colorado, to preside over the case. Judge Matsch came to …

Spring 2014 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat

Faculty Scholarship

This essay gives an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent case filing, this study presents analysis of over 200 attorney fee award orders during 2003-2013.

The study confirms the commonsense view that plaintiffs have tended to …

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

West Virginia Law Review

No abstract provided.

Agenda: Fracking, Water Quality And Public Health: Examining Current Laws And Regulations, Network For Public Health Law, American Society Of Law, Medicine & Ethics, Public Health Law Research Program

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Improved technology developments in directional drilling and hydraulic fracturing, more commonly known as "fracking," have resulted in an oil and gas production boom nationwide. Fracking involves pumping pressurized water, sand, and chemicals down wells to crack bedrock, freeing petroleum and natural gas. Wastewater discharges, hydraulic fracturing fluid releases, and other accidental spills pose potential water quality risks, sparking concern for public health.

This webinar will examine the laws and regulations governing water quality issues related to fracking, recent state court decisions affecting regulations, and implications for public health.

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides

Women As Expert Witnesses: A Review Of The Literature, Tess M. S. Neal

University of Nebraska Public Policy Center: Publications

This review of women’s participation in the legal system as expert witnesses examines the empirical literature on the perceived credibility and persuasiveness of women compared with men experts. The effects of expert gender are complex and sometimes depend on the circumstances of the case. Some studies find no differences, some find favorable effects for women and others for men, and still others find that expert gender interacts with other circumstances of the case. The findings are interpreted through social role theory and the role incongruity theory of prejudice. Future directions for research are identified and implications are considered for attorneys …

What's It Worth? Jury Damage Awards As Community Judgments, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Faculty Scholarship

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument …

Jurisdictional Effects In M & A Litigation, Randall S. Thomas, C.N. V. Krishnan, Ronald W. Masulis, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We compile the most extensive hand-collected data set on all forms of M&A litigation in the United States to study the effects of lawsuit jurisdictions during a sample period (1999 and 2000) of the fifth merger wave, a period characterized by an abundance of friendly one- bidder deals and the near demise of the hostile offer. We find that only about 12 percent of all M&A offers are challenged in the courts during this period. Almost half the suits are filed in Delaware, while federal suits account for less than 9 percent of the suits in our sample. We find …

Responding To Independent Juror Research In The Internet Age: Positive Rules, Negative Rules, And Outside Mechanisms, Robbie Manhas

Michigan Law Review

Independent juror research is an old problem for jury trials. It invites potentially prejudicial, irrelevant, and inaccurate information to guide jury decisionmaking. At the same time, independent juror research compromises our adversarial system by preventing parties from responding to all the evidence under consideration and obfuscating the record on which the jury’s decision is made. These threats have only increased in the internet age, where inappropriate sources of information are ubiquitous and where improper access is hard to detect. Nevertheless, courts and parties continue to engage in the same inhibitory measures they have employed for decades. This Note argues for …

The Future Of Human Rights Litigation After Kiobel, Roger P. Alford

Journal Articles

This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. As others have argued in this issue, that premise may not be correct. Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.

Is The Clean Water Act's Diligent Prosecution Bar Jurisdictional? A Journey Into Discovering Congressional Intent, Szonja Ludvig

BYU Law Review

No abstract provided.

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Jason Schultz, Brian Love, James Bessen, Michael J. Meurer

Faculty Scholarship

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter

Pepperdine Dispute Resolution Law Journal

This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a …

The Affordable Care Act, Remedy, And Litigation Reform, Brendan S. Maher

Faculty Scholarship

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Toward A Child-Centered Approach To Evaluating Claims Of Alienation In High-Conflict Custody Disputes, Allison M. Nichols

Michigan Law Review

Theories of parental alienation abound in high-conflict custody cases. The image of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable “Parental Alienation Syndrome” (“PAS”) developed as an attempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admissibility. Nevertheless, PAS and related theories continue to influence the decisions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile …

A Primer On The Use Of Dangerous Trial Exhibits, Robert M. Jarvis

Faculty Scholarship

It sometimes is necessary at trial to introduce a dangerous exhibit-such as a bomb, gun, or knife-to bolster a client's story, discredit an opposing witness, or give the jury a clearer picture of the underlying events. Doing so, however, requires care and planning. Not only do many courts have specific rules regarding how such exhibits are to be noticed, handled, and displayed, but there are also numerous practical and tactical considerations that must be weighed. In this Article, the author presents the first comprehensive discussion regarding dangerous trial exhibits and offers suggestions for their successful use.

Transactionalism Costs, Alan M. Trammell

Scholarly Articles

Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) …

Fakers And Floodgates, Sandra F. Sperino

Faculty Articles and Other Publications

There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information …

Amicus Brief In United States V. Windsor By Scholars For The Recognition Of Children's Constitutional Rights, Tanya Washington, Catherine Smith, Susannah Pollvogt

Scholarly Articles

This amicus brief filed by Scholars of the Constitutional Rights of Children in Windsor turns the spotlight on children in same-sex families. The brief enumerates the many ways Section 3 of DOMA impairs children's interests by denying federal recognition of their parents' marriages. The brief was cited in Respondent's Brief to the Supreme Court for its central thesis: children are a vulnerable demographic which deserves government action that serves their interests, not government action that impairs their interests.

The Death Of Inference, Andrew S. Pollis

Faculty Publications

This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferenc

In Re Mstg And The Shifting Role Of Litigation-Related Patent Licenses In Reasonable Royalty Rate Determinations, Whitney Levandusky

Journal of Business & Technology Law

No abstract provided.

A Case Study Of Patent Litigation Transparency, Bernard Chao, Derigan Silver

Sturm College of Law: Faculty Scholarship

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

E-Discovery: Reasonable Search, Proportionality, Cooperation, And Advancing Technology, 30 J. Marshall J. Info. Tech. & Privacy L. 433 (2014), Steven Bennett

UIC John Marshall Journal of Information Technology & Privacy Law

Rule 26(g)(1)(A) of the Federal Rules of Civil Procedure (the “Federal Rules”) requires that an attorney responding to a discovery request verify by signature, after “reasonable inquiry,” that the disclosure is, to the best of the attorney’s knowledge, “complete and correct.” In a digital environment, with masses of data in multiple formats and locations, the determination of whether a “reasonable” effort to meet the completeness requirement has occurred may turn on an assessment of the practices used to conduct a search of electronic materials. Those practices, in turn, must be judged on a standard of “proportionality” (i.e., that the effort …

Shutting Down The Ex Parte Party: How To Keep Bittorrent Copyright Trolls From Abusing The Federal Court’S Discovery System, 31 J. Marshall J. Info. Tech. & Privacy L. 105 (2014), Jennifer L. Hunter

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Death Knell Of Issue Certification And Why That Matters After Wal-Mart V. Dukes, Andrey Spektor

St. Thomas Law Review

This article begins by examining the effect of Dukes, detailing in Section I how the Court's pronouncement has been felt most acutely by class plaintiffs seeking to certify Rule 23(b)(3) classes. Section II explains why that is significant in light of the Court's most recent cases and orders. It profiles Comcast's unusual trip through the appellate process and offers two competing interpretations of the Court's opinion around which distinct camps at the lower court level have already coalesced. Neither camp, however, the Section argues, understands the disagreement between the majority and dissenting views in Comcast or the Court's other 2013 …

On Demonstrative Evidence And Trial Graphics: What Works And What Doesn't, Ryan Flax

Criminal Law Practitioner

No abstract provided.

Cause Lawyering In Japan: Reflections On The Case Studies And Justice Reform, Daniel H. Foote

Chapters in Books

Each of the case studies presented in this volume is an important and fascinating story in its own right. Taken together, the case studies enrich our understanding of cause lawyering and the relationship between law and social change in Japan. Despite their rather disparate subjects, the studies dovetail exceptionally well. They show numerous commonalities in the use of law to further social causes, as well as some important differences. They reveal a truly impressive level of creativity in the use of law, and they disclose several common barriers to successful litigation to promote social causes in Japan. As discussed below, …

Against Settlement Of (Some) Patent Cases, Megan M. La Belle

Scholarly Articles

For decades now, there has been a pronounced trend away from adjudication and toward settlement in civil litigation. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings, and have argued that the secondary effects of settlement – especially the lack of decisional law – are damaging to our judicial system. Still, …