Litigation Commons^™

An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard D. Pertnoy

St. Thomas Law Review

The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of …

America's Civil Justice Dilemma: The Prospects For Reform, Dick Thornburgh

Maryland Law Review

No abstract provided.

The After-Acquired Evidence Rule: The Best Of All Possible Worlds?, Sharona Hoffman

Faculty Publications

No abstract provided.

Allocating The Burden Of Proof In Sales Litigation, Alex Stein

Faculty Scholarship

No abstract provided.

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

Scholarly Works

The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Litigation Outcomes In State And Federal Courts: A Statistical Portrait, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman

Seattle University Law Review

"U.S. Juries Grow Tougher on Plaintiffs in Lawsuits," the New York Times page-one headline reads. The story details how, in 1992, plaintiffs won 52 percent of the personal injury cases decided by jury verdicts, a decline from the 63 percent plaintiff success rate in 1989. The sound-byte explanations follow, including the notion that juries have learned that they, as part of the general population, ultimately pay the costs of high verdicts. Similar stories, reporting both increases and decreases in jury award levels, regularly make headlines. Jury Verdict Research, Inc. (JVR), a commercial service that sells case outcome information, often is …

Is Title Vi A Magic Bullet? Environmental Racism In The Context Of Political-Economic Processes And Imperatives, Steven A. Light, Kathryn R.L. Rand

Michigan Journal of Race and Law

This Article examines avenues of redress and pollution prevention for impoverished people of color that flow from Title VI litigation strategies within the larger context of the environmental justice movement. Environmental justice issues can serve as tools with which to question status quo distributive policymaking processes and outcomes. Specifically, this Article concerns itself with practical routes toward increasing distributive justice and democratic efficacy.

Attempted Cap On Punitive Damages Continues To Spark Debate, Susan J. Becker

Law Faculty Articles and Essays

The debate surrounding federal product liability law has not been silenced by recent compromises reached by the House and Senate regarding appropriate boundaries for such laws. To the contrary, President Clinton's threatened veto of Congress's Common Sense Product Liability Reform Act of 1996 and continued opposition by the ABA Section of Litigation and other groups to parts of the Act guarantee that the 20-year-old debate will continue to rage.

Another Early Chapter: Attorney Malpractice And The Trial Within A Trial: Time For A Change, 19 J. Marshall L. Rev. 275 (1986), Donald G. Weiland

UIC Law Review

No abstract provided.

"Loser Pays" Loses Again, Susan J. Becker

Law Faculty Articles and Essays

The most recent congressional attempts to mandate "loser pays" rules for attorneys' fees in many federal civil cases have lost out--at least for the time being--but the push for such legislation has prompted the ABA to adopt a "loser pays" proposal of its own.

Egyptian Civil Justice Process Modernization: A Functional And Systemic Approach, Hiram E. Chodosh, Stephen A. Mayo, Fathi Naguib, Ali El Sadek

Michigan Journal of International Law

To provide helpful assistance to other nations currently in pursuit of civil process reform, this Article introduces a model of civil justice modernization developed through a functional and systemic approach. Addressing the common weaknesses of many other reform efforts, this approach is first motivated by the conviction that process modernization is a necessary component of effective substantive legal reform. Second, in its critical assessment of the problems and its creative recommendations for reform, this Article integrates the design of procedural, institutional, and professional development measures, without requiring large investments of unavailable financial resources. Third, the Article presents a long-term and …

Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold

Articles

In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. …

Class Action Rule Changes: A Midpoint Report, Edward H. Cooper

Articles

This a midpoint progress report of the Reporter on current proposals to amend the class action rule, Rule 23 of the Federal Rules of Civil Procedure. In part, it is one of many calls for help. The proposed amendments have been published for comment. It is important that the rulemakers hear from as many interested observers as possible. One of the pitfalls of the comment process - at least one of the pitfalls that the rulemakers like to believe in - is that there are many observers who believe that the rulemakers have got it right, and do not need …

Assessing The Efficacy Of School Desegregation, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the …

The Political Theory Of The Class Action, Owen M. Fiss

Washington and Lee Law Review

No abstract provided.

Representing The Unrepresented In Class Action Settlements, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this article, Messrs. Wolfman and Morrison argue that in "settlement class actions" the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, …

Extra-Statutory Discovery Requirements: Violating The Twin Purposes Of 28 U.S.C. Section 1782, Christopher W. Sanzone

Vanderbilt Journal of Transnational Law

This Note analyzes Section 1782 of United States Code Chapter 28 and its role in the realm of international judicial assistance. The twin aims of Section 1782 are: (1) to provide efficient means of assistance to participants in foreign litigation, and (2) to encourage foreign countries by example to provide similar assistance to U.S. litigants in court. This Note posits that these goals are violated when a district court, considering a request for documents, imposes a threshold, extra-statutory requirement that the material requested be discoverable in the foreign jurisdiction where the litigation is pending.

After analyzing the legislative history of …

The Pentium Papers: A Case Study Of Collective Institutional Investor Activism In Litigation, Joseph A. Grundfest, Michael A. Perino

Faculty Publications

This article suggests that institutional investors have rational incentives to become more active in the litigation arena, but that the current debate is falsely constrained because it rests on the assumption that institutional investors must participate either by (1) assuming the formal role of lead plaintiff, class representative, or intervenor or, (2) not participating at all. This is a false dichotomy because, as this article demonstrates, institutions have available to them a rich array of flexible, informal, and relatively inexpensive mechanisms by which they can make their views known to litigants and courts alike.

Our hypothesis that institutional investor activism …

In-Kind Class Action Settlements, Scott R. Peppet

Publications

No abstract provided.

From The Couch To The Bench: How Should The Legal System Respond To Recovered Memories Of Childhood Sexual Abuse?, Wendy J. Kisch

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Michigan's Proposed Prenatal Protection Act: Undermining A Woman's Right To An Abortion, Mark S. Kende

American University Journal of Gender, Social Policy & the Law

No abstract provided.

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fanning

Vanderbilt Journal of Transnational Law

The authors analyze the 1994 Japanese products liability law from a national-culture perspective. After examining the historical backdrop of the consumer's social role in both the United States and Japan, the authors argue that the new law cannot create a strict liability system like that of the United States in Japan, because the unique Japanese cultural context and its manipulation discourage the use of the legal process to advance consumer interests.

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

Scholarly Works

Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

Can New York's New Commercial Division Resolve Business Disputes As Well As Anyone?, Robert L. Haig

Touro Law Review

No abstract provided.

Rights And Freedoms Under The State Constitution: A New Deal For Welfare Rights, Sandra M. Stevenson, Eve Cary, Mary Falk, Helen Hershkoff, Robert A. Heverly

Touro Law Review

No abstract provided.

Section 1983 Litigation, Martin A. Schwartz

Scholarly Works

No abstract provided.

Medical Desk Book For Lawyers, Oregon Law Institute, D. Lawrence Wobbrock, David K. Miller, Richard E. Talbott, Peter C. Richter, Steven P. Jones, David C. Landis, Gayle L. Troutwine, Robert P. Jones, Robert J. Neuberger, Robert W. Pardington, David K. Miller, Larry N. Sokol, William A. Barton

Oregon Law Institute, 1996

No abstract provided.

Legislative Development, The Attorney Accountability Act: A Case Study Of The Complexities Of Incentive-Based Legal Reform, Jamie S. Henikoff, Scott R. Peppet

Publications

No abstract provided.