Litigation Commons^™

How Low Can You Go (Down The Ladder): The Vertical Reach Of Rico, 37 J. Marshall L. Rev. 1 (2003), Scott Paccagnini

UIC Law Review

No abstract provided.

The Quandary Of Megan's Law: When The Child Sex Offender Is A Child, 37 J. Marshall L. Rev. 73 (2003), Timothy E. Wind

UIC Law Review

No abstract provided.

The Catalyst Calamity: Post-Buckhannon Fee-Shifting In Environmental Litigation And A Proposal For Congressional Action, Lucia A. Silecchia

Scholarly Articles

Acknowledging the importance of citizen suits in giving teeth to environmental laws, and recognizing the often prohibitive costs of such litigation, Congress often included fee-shifting provisions in most environmental citizen suit statutes. It is well established that plaintiffs who win a judicial ruling in their favor qualify for the benefits of such fee-shifting. What is less clear is whether those parties whose successes come outside the courtroom - as is often true in the environmental context - can also recover fees. In the past, the so-called “catalyst theory” answered this question affirmatively. However, in 2001, the catalyst theory was dealt …

Editor's Note, Jeff D. Bernarducci

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Recent New York Appellate Decisions Will Impact Municipal Tort Litigation, John M. Shields

Fordham Urban Law Journal

This article discusses and summarized the recent decisions by the New York State Court of Appeals and other appellate courts that will alter or greatly impact future tort litigation, especially with regard to municipal liability. The article addresses time limitations for filing claims against the state, the "serious injury" standard under insurance law, the case of Rangolan v. County of Nassau.

Is Citizen Suit Notice Jurisdictional And Why Does It Matter?, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The question of whether notice is jurisdictional or not has important ramifications for citizen suit litigation. The characterization of the notice requirement as “jurisdictional” implicates the proper procedure for raising notice objections, the means of curing notice defects, the question of waiver of notice objections, and the timing of raising notice objections. This article will conduct a brief review of the case law concerning the jurisdictional nature (or not) of the notice requirement, a consideration of the as-yet unnoticed impact of Steel Co. on the issue, and a discussion of the procedural and litigation ramifications of characterizing the notice element …

Joseph Hodges Choate (1832-1917), Janet Butler Munch

Publications and Research

Joseph Hodges Choate (1832-1917) was a trial lawyer and diplomat.

The Insurability Of Punitive Damages In Washington: Should Insureds Who Engage In Intentional Misconduct Reap The Benefit Of Their "Bargains?", Stephanie L. Grassia

Seattle University Law Review

This Note examines the issue of the insurability of punitive damages, concluding that insurance coverage should not be allowed for punitive damages arising from intentional misconduct because such coverage contravenes public policy in the state of Washington. Part I defines and provides background for punitive damages and malicious prosecution. Part II outlines and synthesizes the treatment of the insurability of punitive damages in various states. The facts of the Fluke case, including the Court of Appeals's rationale that insurance coverage for punitive damages is not against public policy in Washington, are detailed in Part III. The next section reveals the …

Standing To Sue In Citizen Suits Against Air And Water Polluters Under Friends Of The Earth, Inc. V. Laidlaw Environmental Services (Toc), Inc., Steven A.G. Davison

All Faculty Scholarship

No abstract provided.

Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande

Faculty Publications

This article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based …

Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

An Overview Of The Sarbanes-Oxley Act And Its Implications For Attorneys, Jeffrey W. Stempel

Scholarly Works

On July 30, 2002, President Bush signed the Sarbanes-Oxley Act of 2002, H.R. 3763, well-publicized in the press as a legislative response to the perceived excesses of corporate America: Enron; WorldCom; Tyco; Global Crossing, etc.

The Sarbanes-Oxley Act of 2002 contains an array of provisions affecting lawyers as professionals serving businesses and contains one provision that will clearly impact corporate counsel in the ethical discharge of their duties. Section 307 of the Act and the recently released Proposed Roles of the Securities Exchange Commission regarding lawyer duties and implementation of Section 307 require counsel to go "up the ladder," to …

Should Congress Repeal Securities Class Action Reform?, Adam C. Pritchard

Other Publications

The Private Securities Litigation Reform Act of 1995 was designed to curtail class action lawsuits by the plaintiffs’ bar. In particular, the high-technology industry, accountants, and investment bankers thought that they had been unjustly victimized by class action lawsuits based on little more than declines in a company’s stock price. Prior to 1995, the plaintiffs’ bar had free rein to use the discovery process to troll for evidence to support its claims. Moreover, the high costs of litigation were a powerful weapon with which to coerce companies to settle claims. The plaintiffs’ bar and its allies in Congress have called …

The Reliability Of The Administrative Office Of The U.S. Courts Database: An Initial Empirical Analysis, Theodore Eisenberg, Margo Schlanger

Articles

Researchers have long used federal court data assembled by the Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC). The data include information about every case filed in federal district court and every appeal filed in the twelve nonspecialized federal appellate courts. Much research using the AO data spans subject matter areas, and includes articles on appeals, caseloads and case-processing times, case outcomes, the relation between demographics and case outcomes, class actions, diversity jurisdiction, and litigation generally. Other research using the AO data covers particular subject matter areas, such as inmate cases, contract cases, corporate litigation, …

Helping The Pro Se Litigant: A Changing Landscape, Paula Hannaford-Agor

Faculty Publications

This article describes how the influx of self-represented litigants has forced many within the court and legal communities to reconsider some of the fundamental premises on which the civil justice system is based and to respond in new and creative ways to changing litigant demands on existing court and legal resources. It focuses on changes to the delivery of legal services to low- and moderate-income people, especially the emergence of “unbundled” legal services, and addresses the practical implications related to the distinction between legal information and legal advice. Finally, it describes how judges and court staff are rethinking the conceptual …

Prologue: Brief Of Amici Curiae On Behalf Of A Committee Of Concerned Black Graduates Of Aba Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support Of Respondents, Luke Charles Harris

Michigan Journal of Race and Law

The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education.

Minnesota And The American Rule: The Recoverability Of Attorneys’ Fees Following In Re Silicone Implant Insurance Coverage Litigation, John M. Bjorkman

William Mitchell Law Review

In the United States, a successful litigant is generally not entitled to recover attorneys' fees from the opposing party absent specific statutory or contractual authorization. This basic principle is commonly referred to as the American Rule. Minnesota recognized and adopted the American Rule roughly 125 years ago. A limited number of exceptions to this longstanding rule exist, but Minnesota courts have generally been reluctant to expand or add to these exceptions. In Minnesota, an exception to the American Rule exists for fees incurred in a declaratory action to establish insurance coverage but only if the insurer has breached its duty …

Fundamental Principles For Class Action Governance, Alexandra Lahav

Faculty Articles and Papers

Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This …

Epa’S Administrative Compliance Orders Ruled Unconstitutional, Mary Margaret Mccleroy

Sustainable Development Law & Policy

No abstract provided.

Epa’S Administrative Compliance Orders Ruled Unconstitutional, Mary Margaret Mccleroy

Sustainable Development Law & Policy

No abstract provided.

Mock Trial Team Members 2003-2004, Kellie Casey Monk

Materials from All Student Organizations

No abstract provided.

Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer

Faculty Scholarship

It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak …

Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman

Articles, Book Chapters, & Popular Press

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were …

Recent New York Appellate Decisions Will Impact Municipal Tort Litigation, John M. Shields

Fordham Urban Law Journal

This article discusses and summarized the recent decisions by the New York State Court of Appeals and other appellate courts that will alter or greatly impact future tort litigation, especially with regard to municipal liability. The article addresses time limitations for filing claims against the state, the "serious injury" standard under insurance law, the case of Rangolan v. County of Nassau.

Lawyer Ethics On The Lunar Landscape Of Asbestos Litigation, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Avoid Bald Men And People With Green Socks? Other Ways To Improve The Voir Dire Process In Jury Selection, Valerie P. Hans, Alayna Jehle

Cornell Law Faculty Publications

During jury selection, many courts adopt a minimal approach to voir dire questions, asking a small number of close-ended questions to groups of prospective jurors and requiring prospective jurors to volunteer their biases. This Article describes research evidence showing that limited voir dire questioning is often ineffective in detecting juror bias. To improve the effectiveness of voir dire, the authors make four recommendations: (1) increase the use of juror questionnaires; (2) incorporate some open-ended questions; (3) expand the types of questions that are asked; and (4) allow attorneys to participate in voir dire.

Reconciling Federal And State Interest In Securities Regulation In The United States And Europe, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

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

Faculty Publications

(Excerpt)

This Article follows in the spirit of Karl Llewellyn and his fellow drafters of the Uniform Commercial Code who sought to transform merchant norms into law. The merchant norms discussed here are the procedures that sophisticated firms contract for to resolve anticipated valuation disputes. The law proposed is a new procedure for resolving valuation disputes based on commercial valuation norms. More specifically, this Article proposes a new default valuation procedure, modeled on the algorithmic valuation clauses commonly used in the contracts of sophisticated firms, that would encourage parties to valuation disputes to introduce more plausible valuations into evidence and …

Front Matter, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Is It Time For A Federal Terrorist Court: Terrorists And Prosecutions: Problems, Paradigms, And Paradoxes, Harvey Rishikof

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.