Litigation Commons^™

Reforming Patent Validity Litigation: The "Dubious Preponderance", Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Journal's focus on appellate practice and procedure suggests that it might be appropriate and productive to take a somewhat unusual approach to Brown and its significance. Brown was most important, of course, for its role in the transformation of American race relations. From the point of view of the appellate courts, Brown is significant in another way. Brown was the culmination of a sustained campaign of strategically designed litigation-or so it came to be thought. Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed …

Some Legacies Of Brown V. Board Of Education, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

The litigation campaign against segregation that culminated in Brown v. Board of Education' remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system.

Litigating Medical Malpractice Cases In Oklahoma: The Aftermath Of Hipaa, Melissa A. Couch

Oklahoma Law Review

No abstract provided.

Original Jurisdiction Actions As A Remedy For Oklahoma's Decision Deficit, Bradley W. Welsh

Oklahoma Law Review

No abstract provided.

The Impact Of Recent U.S. Supreme Court Punitive Damages Jurisprudence On Oklahoma's Punitive Damages Statute And Jury Instructions, Andrew C. Jayne

Oklahoma Law Review

No abstract provided.

Attorney Fees: Attorney Fees, Prevailing Parties, And Judicial Discretion In Oklahoma Practice: How It Is, How It Should Be, Jami Rhoades Antonisse

Oklahoma Law Review

No abstract provided.

Saving Title Vii: Using Intent To Distinguish Harassment From Expression, Robert Austin Ruescher

Faculty Publications

(Excerpt)

Like two reluctant boxers in a ring, the First Amendment and Title VII of the Civil Rights Act of 1964 have been sparring halfheartedly for years, circling and jabbing each other in courts and law reviews. The bout pits the constitutional right to be free from government censorship against the statutory "right to work in an environment free from discriminatory intimidation, ridicule, and insult." As stated by the Supreme Court in another context, it pits "the First Amendment rights of the speaker" against "the protection the statute provides for the unwilling listener."

Both the First Amendment and Title VII …

Derivative Suits In Bankruptcy, Keith Sharfman

Faculty Publications

(Excerpt)

It is a fundamental tenet of corporate law that creditors, unlike shareholders, may not bring derivative suits on a firm's behalf—even if the firm is, or is nearly, insolvent. Corporate law affords creditors who are unhappy with a corporate debtor's management various remedies, such as the right (in limited circumstances) to put the firm into receivership or to sue the directors and officers directly for breaches of fiduciary duty. But the derivative suit is not among them.

The formal rationale for denying derivative standing to creditors is that a derivative suit is an assertion of ownership rights, and (in …

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Publications

Recent years have witnessed increasing attacks on the appropriateness of certification of employment discrimination class action claims. The shift is often attributed to amendments to federal antidiscrimination laws in the Civil Rights Act of 1991. This paper argues, however, that the changes wrought by the 1991 amendments need not pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class …

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

Publications

This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation …

Creating A Public Defender System In The Shadow Of The Israeli – Palestinian Conflict, Kenneth Mann, David Weiner

NYLS Law Review

No abstract provided.

Eyes Tied Shut: Litigating For Access Under Cipa In The Government’S “War On Terror”, Cameron Stracher

NYLS Law Review

No abstract provided.

Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller

NYLS Law Review

No abstract provided.

The Politics Of Inmate Litigation, Margo Schlanger

Other Publications

I feel compelled to respond to a recent student-written Note that critiques my Article, Inmate Litigation, published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA), that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and …

Should Issuers Be On The Hook For Laddering? An Empirical Analysis Of The Ipo Market Manipulation Litigation, Adam C. Pritchard, Stephen J. Choi

Articles

On December 6, 2000, the Wall Street Journal ran a front-page story exposing abuses in the market for initial public offerings (IPOs). The story revealed "tie-in" agreements between investment banks and initial investors seeking to participate in "hot" offerings. Under those agreements, initial investors would commit to buy additional shares of the offering company's stock in secondary market trading in return for allocations of shares in the IPO. As the Wall Street Journal related, those "[c]ommitments to buy in the after-market lock in demand for additional stock at levels above the IPO price. As such, they provide the rocket fuel …

Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram

Journal Articles

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of …

What Is The Time Limit For Filing A Lawsuit? It Depends On What Your Definition Of "Arising Under" Is! An Analysis Of Jones V. R.R. Donnelley & Sons Co., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Jones et. al. v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). The author predicted that the case would require the court to determine the appropriate statute of limitations to apply in a class action race-discrimination lawsuit filed under 42 U.S.C. § 1981.

Introduction To The Online Colorado Litigator's Handbook, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

The Litigator's Handbook includes surveys of district court judges throughout the state with detailed questions of each judge's preferences and proscriptions for practice and procedure; answers to some questions that attorneys want to know but may be afraid to ask; and commentary that indicates the court's general level of receptiveness to particular types of requests.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Trial Practice And Procedure, Jason Crawford, Matthew E. Cook, J. Clay Fuller, Michael A. Eddings, Dustin T. Brown

Mercer Law Review

This survey period yielded several decisions of interest and importance to practitioners trying cases and preparing for trial. This Article will analyze the recent judicial developments in the law relating to evidence, insurance, jurors and jury instructions, professional liability, service of process, and damages, as well as other issues of import to the trial practitioner.

Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt

Michigan Law Review

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might …

The Exclusion Of Felons From Jury Service, Brian C. Kalt

American University Law Review

The lifetime exclusion of felons from jury service is the majority rule in the U.S., used in thirty one states and in federal courts. The result is that over 6% of the adult population is excluded, including about 30% of black men.

The parallel issue of felon disenfranchisement has drawn considerable scholarly attention, despite its lower, declining, and less racially charged numbers. The racial composition of juries has been widely discussed in the literature as well. By contrast, felon jury service has been almost entirely ignored, despite a mass of legislation and appellate litigation, and despite glaring racial disparities.

One …

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …

Expected Value Arbitration, Joshua P. Davis

ExpressO

This Article proposes a new form of dispute resolution, Expected Value Arbitration or “EVA.” It would award a plaintiff the expected value of the outcome at trial or, in other words, the plaintiff would receive the amount she would recover on average if numerous courts were to decide her claim. EVA’s novel use of expected value gives it several virtues that distinguish it from trial, traditional binding arbitration, and other academic proposals for imposed compromise: first, EVA allows parties to insist on their legal rights without braving the risks of winner-take-all adjudication; second, it minimizes errors in adjudication; and, third, …

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

Roundtable With Former Directors Of The Bureau Of Economics, Jonathan Baker

Presentations

The roundtable commemorates the 100th anniversary of the FTC's predecessor agency, the Bureau of Corporations. It was sponsored by the FTC's Bureau of Economics (BE) and focused on BE history and contributions of BE and economic analysis to antitrust and consumer protection enforcement, and to research and economic knowledge and policy. BE was featured because the original functions of the Bureau of Corporations were to collect information, to conduct industry and policy research, to prepare reports at the request of the Congress and the President. The panelists for the roundtable consisted of former BE Directors and Acting Directors from the …

Employer Tros Are All The Rage: A New Approach To Workplace Violence, Kyle Riley

Nevada Law Journal

This Article examines the emerging phenomenon of the Employer TRO - a remedy that allows employers to obtain TROs in response to the threat of workplace violence. The author argues that the employer TRO arms employers with new substantive rights, increases the protection of employees, and reduces the employer's liability for incidents of workplace violence. A comprehensive examination of the current responses to workplace violence indicates that employers and employees lack a response to the imminent workplace assault.