Litigation Commons^™

The Constitutional Validity Of The Modification Of Joint And Several Liability In The Washington Tort Reform Act Of 1986, Gregory C. Sisk

Seattle University Law Review

With the Washington Supreme Court having recently invalidated the statutory cap placed on awards of noneconomic damages to tort plaintiffs as a violation of the state constitutional right to a jury trial, we may expect an increasing onslaught upon other controversial provisions of the Washington Tort Reform Act of 1986. In particular, the modification of the common law doctrine of joint and several liability, which was also accomplished by the Tort Reform Act and is codified at section 4.22.070 of the Washington Revised Code, has already become a target of plaintiffs' attorneys in tort litigation and has also come under …

A Need For Clarity: Toward A New Standard For Preliminary Injunctions, Lea B. Vaughn

Articles

This Article examines the various standards for preliminary injunctions and demonstrates the ways in which the standards have become confused by irrelevant layers of meaning. Those layers of meaning are analyzed; nonfunctional accretions are discarded, and legitimate modem meanings are developed. The discussion is conducted against a background of assumptions about what makes a good standard, for example, accessibility and comprehensiveness. By modernizing the standard, the parties and the courts will frankly and openly discuss the underlying legal issues and values. This, in turn, should lead to more legitimate decisions.

Under a modernized standard, a court should redress immediate pretrial …

Case Digests: West Virginia Supreme Court Of Appeals Decisions, 1988-1989, Robert V. Leydon, Gary S. Wigal

West Virginia Law Review

No abstract provided.

Gideon V. Wainwright A Quarter-Century Later, Yale Kamisar

Articles

In a brief working paper sent to all conference participants, Professor Burt Neuborne suggested that we might consider several themes, among them "Gideon Celebrated," "Gideon Fulfilled," and "Gideon Betrayed." I think these are useful headings.

Symmetries Of Access In Civil Rights Litigation: Politics, Pragmatism And Will, Gene R. Shreve

Indiana Law Journal

No abstract provided.

The Influence Of Litigation Costs On Deterrence Under Strict Liability And Under Negligence, Keith N. Hylton

Faculty Scholarship

This paper examines the influence of litigation costs on deterrence under strict liability and under negligence. By deterrence, I refer to the effect of the threat of liability on the care exercised by potential injurers. More precisely, this paper takes litigation costs as given and examines the social desirability of the levels of care exercised under negligence and under strict liability.

Risk, Courts, And Agencies, Clayton P. Gillette, James E. Krier

Articles

Public risks are precisely the risks that have recently captured the attention of the legal community and the world at large, in no small part because they give rise to such novel problems for lawyers and such grave apprehensions among lay people. Public risks have moved the legal system to relax doctrines--regarding, for example, standards of causation and culpability, burdens of proof, sharing of liability--that were designed to deal with the private risks that once dominated the landscape. And public risks have moved lay people to intensify their demands for risk control measures. These developments suggest that public risks are …

Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross

Articles

This essay describes a novel clinical format, a simulation course that is based on students' testimony about actual events in their own lives. The two main purposes of the course, however, are not novel. First, I aim to teach the students to be effective trial lawyers by instructing them in the techniques of direct examination and cross-examination and by making them sensitive to the roles of the other courtroom players: the witness, the judge, and the jury. Second, I hope to encourage the students to think about the social and ethical consequences of our method of trying lawsuits.

Reassessing Rule 11 And Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The Advisory Committee on the Civil Rules amended Federal Rule of Civil Procedure (Rule 11) in August 1983 because of increasing concern about attorney abuses in civil lawsuits and about the so-called litigation explosion. The revision commands courts to sanction lawyers and parties who do not undertake reasonable prefiling inquiries. Certain aspects of the new version's implementation provoked substantial controversy which continued virtually undiminished from the amendment's August 1983 effective date at least until the fifth anniversary of its adoption. Perhaps most controversial was the question whether courts' application inhibited the pursuit of legitimate litigation, especially cases involving civil rights …

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

Attitudes Toward Corporate Responsibility: A Psycholegal Perspective, Valerie P. Hans

Cornell Law Faculty Publications

One of the most striking phenomena in the contemporary legal world is the shift toward holding businesses and corporations responsible for harm. Legal theorists and historians maintain that today business corporations are expected to provide compensation for injuries that in earlier times would have been attributed to individuals or to fate. Furthermore, criminal charges against businesses and business executives are becoming commonplace.

Despite a good deal of legal scholarship on the shift toward holding businesses culpable for harms, psychologists have conducted little systematic research on public views of corporate responsibility. How do people conceptualize the civil liability or criminal responsibility …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the Survey year the New York Court of Appeals upheld the constitutionality of the state toxic tort revivor statute and adopted the market share theory in DES cases. The court also gave the bar a Christmas present in Tewari v. Tsoutsouros3 and clarified important discovery issues .Two appellate courts held that the AIDS virus falls within New York Civil Practice Law and Rules ("CPLR") 214-c and issued important decisions in notice of claims cases.6Also, several trial courts actively applied new sanctions rules. Perhaps the most important developments during the Survey year were the bench and bar proposals relating to …

Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents paint necessarily touches …

"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article will address primarily the lack of textual and historical support for the Court's narrow construction of jurisdictional provisions that cause it to deny the existence of jurisdiction. In addition, the Article will briefly describe the lack of historical support for the Court's independent development of the abstention doctrines and their consequent illegitimacy. Both areas share democratic theory and institutional legitimacy concerns that Professor Redish will address, but let me respectfully suggest that these issues are best understood in light of the congressional thought underlying the Title 28 authorizations.

The Case In Support Of Legislation Facilitating The Consolidation Of Mass-Accident Litigation: A View From The Legislature, Charles G. Geyh, Robert W. Kastenmeier

Articles by Maurer Faculty

No abstract provided.

Equitable Discretion To Dismiss Congressional-Plaintiff Suits: A Reassessment, Sophia Goodman

Articles by Maurer Faculty

The United States Court of Appeals for the District of Columbia Circuit has devised a doctrine called equitable
discretion to screen congressional-plaintiff suits. The Author argues that the doctrine should be abandoned. She proposes that the courts be guided by existing standng principles in deciding whether to hear these cases.

Organizational Standing In Environmental Litigation, Jeanne A. Compitello

Touro Law Review

No abstract provided.

Dispute Processing And A Longitudinal Approach To Trial Courts, Lynn M. Mather

Journal Articles

This article suggests ways to integrate the insights and findings of two rather distinct fields: docket-based, longitudinal studies of trial courts and studies of dispute processing. In particular, I argue that longitudinal research on courts would benefit enormously from the incorporation of concepts and data on dispute processing. For example, instead of taking court cases as the starting point for study, longitudinal research should explore the multistage and transformative nature of disputing. Historical data should also be collected on the nature of the relationships between opposing litigants, on the roles played by participants other than the litigants (lawyers, supporters, audiences, …

Lawyers Take Heed! A De Novo Review Of Rule 11 In North Carolina - Turner V. Duke Univ., T. June Hobby

Campbell Law Review

This Note will propose the standard of review which best balances both concerns. First, this Note will summarize the facts of Turner, to introduce the setting of the Rule 11 decision. Second, in the Background section, this Note will explore the history of Rule 11 in the federal courts and in North Carolina, and the various standards of review adopted in the federal courts. Third, this Note will analyze the Turner decision and the standard of appellate review adopted by the North Carolina Supreme Court. Fourth, this Note will compare the standards of review and suggest which of the …

The Use Of Anti-Suit Injunctions In International Litigation, George A. Bermann

Faculty Scholarship

Of the various forms of provisional relief in the context of inter-national litigation, none has sparked as much interest and controversy as the international anti-suit injunction. In many ways the international anti-suit injunction, an instrument by which a court of one jurisdiction seeks to restrain the conduct of litigation in another jurisdiction, resembles more conventional forms of international provisional relief such as the foreign attachment or preliminary injunction. Like them, the anti-suit injunction affords courts an important opportunity to affect the course and significance of litigation abroad. However, such intervention strongly implies – and often actually creates – jurisdictional conflict …

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Proving Discrimination After Price Waterhouse And Wards Cove, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

INTRODUCTION Anyone involved in litigation under Title VII of the Civil Rights Act of 19641 or similar state statutes may wonder what is entailed in proving or disproving discrimination after the United States Supreme Court's October 1988 Term. In fact, in the pending Civil Rights Act of 1990, Congress is considering reversing some of what the Supreme Court did during that Term. One of the issues that the Supreme Court addressed during the 1988 Term involved allocating burdens of proof in two major types of Title VII claims, dis- parate-treatment and disparate-impact. Price Waterhouse v. Hopkins, dealt with a disparate-treatment …

The Constitutional Right To Expert Assistance For Indigents In Civil Cases, David Medine

Articles by Maurer Faculty

No abstract provided.

The Pattern Of Racketeering Element Of Rico Liability, Committee On Federal Courts Of The New York State Bar Association

Touro Law Review

No abstract provided.

New York's Real Property Tax Law: The More Changes That Are Made, The More Things Stay The Same, Ira M. Sockowitz

Touro Law Review

No abstract provided.

Voices Heard In Jury Argument: Litigation And The Law School Curriculum, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Afterword: Studying Litigation And Social Change, Frank W. Munger

Articles & Chapters

No abstract provided.

Book Review, Mark J. Loewenstein

Publications

No abstract provided.

American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn

Scholarly Works

The International Court of Justice ("ICJ" or "Court") is the successor to both the Permanent Court of Arbitration and the Permanent Court of International Justice. Before the first court was established in 1899, only ad hoc tribunals existed. This was due to a basic fact of international law that international tribunals possessed jurisdiction only if the parties to the case conferred it on the tribunal either for that case or previously by an international agreement. Therefore, the great problem of international law today is how to confer as much jurisdiction on the international court as possible. Now that the use …

Urban Air Quality Litigation Under The Clean Air Act: Past, Present And Future, David S. Baron

Air Quality Protection in the West (November 27-28)

20 pages.

Contains footnotes.