Litigation Commons^™

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Scholarly Publications

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side and influencing the types of legal reform those coalitions are able to pursue.

A series of state …

Leviathan Menacing The Gulf Coast: Catastrophic Consequences May Imperil The Rule Of Law, Beau James Brock

Buffalo Environmental Law Journal

No abstract provided.

Reinventing The Eeoc, Nancy M. Modesitt

All Faculty Scholarship

The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes …

Civil Judicial Subsidy, The, Brendan Maher

Faculty Articles and Papers

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants? I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social …

The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells

Cornell Law Faculty Publications

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were …

Reaching Equilibrium In Tobacco Litigation, Aaron D. Twerski, James A. Henderson, Jr.

Faculty Scholarship

No abstract provided.

The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise

Cornell Law Faculty Publications

Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and retaliation cases. The decision prompted an outcry from the plaintiffs' bar and Congress has proposed legislation to overturn Gross. Despite the outcry, a simple question persists: Does the motivating factor jury instruction influence case outcomes? Results from our experimental mock jury study suggest that such jury instructions …

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our …

Rape Victims As Mockingbirds: A Law And Linguistics Analysis Of Cross-Examination Of Rape Complainants, Sara D. Schotland

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

The Deepwater Horizon Oil Spill: Potential Insurance Coverage Implications, Lynn K. Neuner, W. Nicholson Price

Articles

More than 300 lawsuits have already been filed in Louisiana, Florida, Texas, Mississippi, and Alabama against BP and other corporations involved in the Deepwater Horizon oil spill, including Transocean, Halliburton, and Cameron, with thousands more anticipated. This article briefly addresses the contours of the coverage lawsuit already filed against BP and other coverage disputes we may see in the future.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2009 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, subject matter jurisdiction, arbitration, and statutory interpretation.

Class Actions, Thomas M. Byrne, Stacey A. Mcgavin

Mercer Law Review

In its noteworthy 2004 decision in Klay v. Humana, Inc., the United States Court of Appeals for the Eleventh Circuit appeared to veer from its own precedents in affirming certification of a nationwide class asserting a claim under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). During 2009 the court returned to RICO class actions in Williams v. Mohawk Industries, Inc. , and this time the Eleventh Circuit vacated a district court's refusal to certify a RICO class. The proposed class consisted of Mohawk Industries employees who complained that Mohawk engaged in racketeering activity violating the federal …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit addressed a wide array of significant issues in the area of appellate practice and procedure in 2009. However, the most significant decision for the Eleventh Circuit in the area of appellate procedure came from the United States Supreme Court. In Mohawk Industries, Inc. v. Carpenter, the Supreme Court affirmed a 2008 Eleventh Circuit decision in which the court held that the collateral order doctrine does not allow for an immediate appeal of an order requiring the disclosure of evidence purportedly protected by the attorney-client privilege. Accordingly, this Article will …

Lawyers Acting Badly, Or Not? Misconduct In Ip Litigation: Recent Examples And The Questions They Raise, Lisa Dolak

College of Law - Faculty Scholarship

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity. however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Trial and appellate judges in a number of recent IP cases have wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse. For example, trial judges have recently rebuked …

Fcc V. Fox Television Stations And The Fcc's New Fleeting Expletive Policy, Jerome A. Barron

Federal Communications Law Journal

This Article focuses on the Supreme Court's decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). In that case, the Supreme Court upheld an important change in the FCC indecency regulation. In the past, the FCC's policy had been that the broadcast of a single expletive did not violate FCC indecency policy. In order for such fleeting expletives to be actionable, the FCC required that they had to be repetitive and gratuitous. But in 2004, in response to the use of some expletives by entertainers during the Golden Globe Awards, the FCC changed its policy and …

Derailed By The D.C. Circuit: Getting Network Management Regulation Back On Track, Edward B. Mulligan V

Federal Communications Law Journal

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

Attorney Fees And Expenses In Class Action Settlements: 1993–2008, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

We report on a comprehensive database of 18 years of available opinions (1993–2008, inclusive) on settlements in class action and shareholder derivative cases in state and federal courts. An earlier study, covering 1993–2002, revealed a remarkable relationship between attorney fees and class recovery size: regardless of the methodology for calculating fees ostensibly employed by the courts, the class recovery size was the overwhelmingly important determinant of the fee. The present study, which nearly doubles the number of cases in the database, confirms that relationship. Fees display the same relationship to class recoveries in both data sets and neither fees nor …

Taxing Structured Settlements, Gregg D. Polsky, Brant J. Hellwig

Scholarly Works

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt from the tax the investment yield imbedded within the structured settlement. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. While the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs’ lawyers and non-physically injured tort plaintiffs under general, common-law tax principles. …

Taking Great Cases: Lessons From The "Rosenberg" Case, Brad Snyder

Vanderbilt Law Review

The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Sentenced to death in April 1951 for passing atomic secrets to the Soviets, the Rosenbergs dominated the news and divided the country. Their case came at the height of Cold War America's obsession with Communism. Senator Joe McCarthy and the House Un-American Activities Committee were exposing alleged Communists in the federal government and Hollywood, and the U.S. military was fighting the Korean War to try to stop the spread of Communism abroad. …

The Managerial Judge Goes To Trial, Elizabeth G. Thornbug

University of Richmond Law Review

No abstract provided.

Splitting Scales: Conflicting National And Regional Attempts To Manage Commercial Aquaculture In The Exclusive Economic Zone, Brandee Ketchum

Journal of Food Law & Policy

Like other environmental resources subject to public use, various interest groups struggle over joint management of scarce fisheries resources. Further, differing goals for resource management, such as financial goals versus conservation goals, frequently pit regional groups against one another. In some cases, regional interests may conflict with overall national interests. As goes the water and the air, so go the fish.

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

Scholarly Works

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

The Pleading Problem, Adam N. Steinman

Faculty Scholarship

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a …

Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron

Faculty Scholarship

No abstract provided.

Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland

The Journal of Appellate Practice and Process

No abstract provided.

Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore

Law Student Publications

The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading regime, …

Water Law In The Western United States, Susan Kelly

Publications

No abstract provided.