Civil Law Commons^™

No.15 - June 2010, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Cleaning Up Punitive Damages: A Statutory Solution For Unguided Punitive-Damages Awards In Maritime Cases, Richard A. Chastain

Vanderbilt Law Review

Intentionally destroying property-boundary markers by sawing down the posts.' Causing environmental disasters. Fraudulently refusing to settle insurance claims within coverage limits. Bad-faith dealing in big oil contracts. Hiding mild weather damage to new vehicles. Creating and marketing cigarettes while knowing about their carcinogenic risks. Contributing to automobile accidents. No, these are not items on some nefarious villain's to-do list. These are all examples of cases where courts have awarded punitive damages against the tortfeasors on top of their compensatory liability. While each tort is unquestionably wrong, some certainly appear more wrong than others.

In recent years, punitive damages have become …

No.14 - March 2010, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

Autoptic Film, Alex Murray

Cardozo Law Review

No abstract provided.

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Fordham Urban Law Journal

Civil justice issues – family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors – are part of the fabric of daily life. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey (NCJS) analogous to the National Crime Victimization Survey. The need for information about civil justice issues and …

Connecting Self-Representation To Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, Russell Engler

Fordham Urban Law Journal

Over the past decade, the phenomenon of self-representation in civil cases has led to the development of programs designed to facilitate self-representation. A revitalized movement seeking to establish a civil right to counsel has emerged (civil Gideon, a civil right to counsel based on Gideon v. Wainwright), pressing for the expansion of the availability of counsel for the poor. What are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Part of this question, however, is a research question: …

Higher Demand, Lower Supply? A Comparative Assessment Of The Legal Resource Landscape For Ordinary Americans, Gillian K. Hadfield

Fordham Urban Law Journal

Systematic efforts to assess the legal landscape for the ordinary citizen - what legal services cost and what fraction of that cost is for real value - have been few and far between. Most studies focus instead on the performance of the legal system for corporate clients or on the delivery of legal services to the poor as a form of charity or welfare assistance. This article reviews and compares the few existing legal needs studies and looks for the macro indicators of the extent to which resources across the economy as a whole are devoted to providing legal inputs …

If We Don't Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.

Fordham Urban Law Journal

This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

Fordham Urban Law Journal

This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes; legal representation may often be critically important in ADR processes. Because many disputes will be finally resolved in ADR and because legal representation can be equally or even more important in ADR than in litigation, we need to focus simultaneously on improving representation in both …

Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon

UIC Law Review

No abstract provided.

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers’ Resistance To Mediating Commercial Disputes, Don Peters

Richmond Journal of Global Law & Business

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making …

Regulating Offensiveness: Snyder V. Phelps, Emotion, And The First Amendment, Christina E. Wells

Faculty Publications

In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy …

Representation In Mediation: What We Know From Empirical Research, Roselle L. Wissler

Fordham Urban Law Journal

This Article first describes the proportion of unrepresented parties in mediation and the policies and practices regarding representation in different mediation contexts. The core of the Article examines the empirical findings on the effect of representation on several dimensions of the mediation process, including the effect on preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party "voice" and participation in mediation, and the tone of the session. In addition, the Article examines the effect of representation on mediation outcomes, including the likelihood of settlement and the fairness of agreements reached. …

Revised Uniform Laws On Notarial Acts, Arthur Gaudio , Reporter

Faculty Scholarship

This version of the Uniform Law on Notarial Acts (“ULONA”) is a comprehensive revision of the Uniform Law on Notarial Acts as approved by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) in 1982. Since that date, countless societal and technological as well as market and economic changes have occurred requiring notarial officers and the notarial acts that they perform to adapt. In addition, there has been a growing non-uniformity among the states in their laws regarding notarial acts. This version of ULONA adapts the notarial process to accommodate those changes, makes the Act more responsive to current …

Caveat Emptor, Venditor Et Praescribor: Legal Liability Associated With Methyplenidate Hydrochloride (Mph) Use By Postsecondary Students, Jocelyn Downie, Fiona Campbell, Simon Outram

Articles, Book Chapters, & Popular Press

For years, students have endured the physical and mental stress that comes as a result of the demands of post-secondary education. All -night cramming for exams and marathon paper writing sessions are considered, by many, to be a rite of passage, endured by generations of students. For many years, students have also turned to stimulants (from coffee to energy drinks and caffeine pills) to extend their physical and cognitive limits in order to better cope with the demands of school and life. In this sense, the use of stimulants as study-aids is not a new phenomenon nor has it been …

Lawyering In Juvenile Court: Lessons From A Civil Gideon Experiment, Katherine Hunt Federle

Fordham Urban Law Journal

To understand how a good lawyering paradigm may nevertheless undermine client empowerment and perpetuate disability, it is necessary to appreciate the larger ethical debate about client autonomy. This Article will examine two dominant models of good lawyering and explore their implications for client choice and lawyer autonomy, with an emphasis on poverty lawyering. The Article then turns to a discussion of the lawyering experience in juvenile court to illustrate the ways in which dominant visions of the client as dependent, incompetent, and disabled affect not only the role and responsibilities of the attorney for the child but the extension of …

Examining The Real Demand For Legal Services, Herbert M. Kritzer

Fordham Urban Law Journal

Legal needs are real, but can also be virtually open-ended. Studies tell us that 85% of the civil legal needs of low income persons are currently not being met but we have no idea as to what portion of that 85% legal assistance would meaningfully help to resolve those needs, or how the cost of providing that assistance compares to the benefit that would be generated. This article examines extant studies of legal needs, and concludes that there is a need for baseline data to enable us to assess the degree of legal need that takes into account the range …

Nothing For Something? Denying Legal Assistance To Those Compelled To Participate In Adr Proceedings, Stephan Landsman

Fordham Urban Law Journal

The traditional view of the courts in their handling of unrepresented litigants has been that those who proceed pro se must look out for themselves and that there is no constitutional right to receive personal instruction from the trial judge on courtroom procedure. The opposing view, which has received increasing support, is that courts have a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements. This Article explores the treatment of unrepresented litigants in ADR (alternative dispute resolution) settings, contends that …

Access To Justice In A World Without Lawyers: Evidence From Texas Bodily Injury Claims, Charles Silver, David A. Hyman

Fordham Urban Law Journal

Will tort reform capping contingency fees limit plaintiffs' ability to recover for their injuries? If self-representation is a viable option, contingency fees may have less of an impact on access than one might otherwise expect. Conversely, if tort recoveries flow only or mostly to plaintiffs who either actually hire lawyers or can credibly threaten to do so, caps on contingency fees may make it difficult or impossible for many victims to obtain justice. This article explores the issue by looking at patterns of representation among claimants who received payments for bodily injury in Texas during 1988-2005. Over an extended period …