{"title":"Locus Standi Has Widening the Scope of Public Interest Litigation","authors":"Mahesh R. Halde","doi":"10.2139/ssrn.1934112","DOIUrl":"https://doi.org/10.2139/ssrn.1934112","url":null,"abstract":"Locus Standi has been widened by introduction of the concept of public interest litigation. It has proved a boon for the common people.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121379715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
S. Diamond, M. R. Rose, B. Murphy, John B. Meixner
{"title":"Damage Anchors on Real Juries","authors":"S. Diamond, M. R. Rose, B. Murphy, John B. Meixner","doi":"10.1111/j.1740-1461.2011.01232.x","DOIUrl":"https://doi.org/10.1111/j.1740-1461.2011.01232.x","url":null,"abstract":"Experiments reveal anchoring as a powerful force, even when participants see the anchor as irrelevant. Here, we examine the reactions of real deliberating jurors to attorney damage requests and concessions in 31 cases involving 33 plaintiffs in which the jury awarded damages. Jurors were critical consumers of attorney suggestions. They reacted more negatively to, and were less influenced by, plaintiff ad damnums for pain and suffering than to damage requests in categories grounded in more objective evidence. Deliberations revealed that jurors often perceive plaintiff ad damnums not only as irrelevant, but also as outrageous, impressions reflected in their verdicts. These findings suggest that extreme plaintiff ad damnums, including those without grounding in quantitative evidence from trial, may not exert substantial undue influence.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117549066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"What If?: A Study of Seminal Cases as if Decided Under a Twombly/Iqbal Regime","authors":"Brooke D. Coleman","doi":"10.2139/SSRN.1916832","DOIUrl":"https://doi.org/10.2139/SSRN.1916832","url":null,"abstract":"What if, like in It’s a Wonderful Life, we were able to go back and see what life would be like without a particular legal rule? In other words, what if we could be the George Bailey of law for a day? It is through this “what if” lens that this essay tackles the already well-discussed cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal. But, unlike the scholarship that has addressed these cases so far, this essay stakes out a completely different methodological approach. Rather than predicting what courts might do with Twombly and Iqbal going forward, it asks what might have been had Twombly and Iqbal existed decades ago. To engage in this exercise, the essay looks at actual complaints in cases that have become common parlance in legal circles, Bakke v. The Regents of the Univ. of Cal. and Hopkins v. Price Waterhouse, and applies the standards enunciated in Twombly and Iqbal to them. By doing so, the essay attempts to concretely think about the consequences of a Twombly/Iqbal pleading regime by considering the potential impact that a granted motion to dismiss might have had on cases that we take for granted today. This requires both micro and macro considerations. At the micro level, it is worth thinking about whether the complaint could have been re-filed and ultimately survive a motion to dismiss. At the macro level, the exercise involves a broader consideration of what would have happened had the case never been decided. In other words, how would the doctrines defined by that seminal case have been affected? And, even more broadly, how might the development of particular kinds of law practice changed and how might other modes of social change been utilized? By considering the effect of Twombly and Iqbal in this manner, the essay offers yet another way to consider the benefits and drawbacks of a Twombly/Iqbal regime.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117313206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Rationalizing Costs in Investment Treaty Arbitration","authors":"Susan D. Franck","doi":"10.2139/ssrn.1781844","DOIUrl":"https://doi.org/10.2139/ssrn.1781844","url":null,"abstract":"International investment and related disputes are on the rise. With national courts generally unavailable and difficulties resolving disputes through diplomacy, investment treaties give investors a right to seek redress and arbitrate directly with states. The costs of these investment treaty arbitrations - including the costs of lawyers for both sides, as well as administrative and tribunal expenses - are arguably substantial. This Article offers empirical research indicating that even partial costs could represent more than 10% of an average award. The data suggested a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification for those cost decisions. Although there were signs of balance and a preference for parties to be responsible for their own costs, there was neither a universal approach to cost allocation nor a reliable relationship between cost shifts and losing. Awards typically lacked citation to legal authority and provided minimal rationale, and the justifications for cost decisions exhibited broad variation. Small pockets of coherence existed. Tribunals typically decided costs only in the final award; and as the amount investors claimed increased, tribunal costs also increased. Such a combination of variability and convergence can disrupt the value of arbitration for investors and states. In light of the data, but recognizing the need for additional research to replicate and expand upon the initial findings, this Article recommends states consider implementing measures that encourage arbitrators to consider specific factors when making cost decisions, obligate investors to particularize their claimed damages at an early stage, and facilitate the use of other Alternative Dispute Resolution (ADR) strategies. Establishing such procedural safeguards can aid the legitimacy of a dispute resolution mechanism with critical implications for the international political economy.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132048471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Privatizing International Law","authors":"P. Stephan","doi":"10.2139/SSRN.1780468","DOIUrl":"https://doi.org/10.2139/SSRN.1780468","url":null,"abstract":"The old understanding of international law as something created solely by and for sovereigns is defunct. Today the production and enforcement of international law increasingly depends on private actors, not traditional political authorities. As with other public services that we used to take for granted – schools, prisons, energy utilities and transportation networks – privatization has come to international law.The tasks of this paper are both positive and normative. It both locates the privatization process within a broader model of law production and uses criteria supplied by that theory to assess its value. It argues that innovation in the production of international law may achieve considerable benefits. Changes in international economics and politics make experimentation imperative. At the same time, some forms of privatization pose considerable risks without corresponding benefits. The question whether international law applies at all to particular conduct is fundamental and has profound consequences. It involves a choice between legal systems, not simply a choice among applicable rules. Privatization that destabilizes the domain of international law, i.e., that makes it less clear where international rules apply, produces high costs that require exceptional justification.In particular, the last portion of the paper traces through a range of areas where the political branches, through statutes, have given different directions as to the application of international law in lawsuits. I argue that courts should follow these directions, not only because of a general obligation to fulfill statutory intent, but because disregard of them will confuse the general issue of when international law applies. Thus the courts should not expand the domain of international law when statutory law indicates otherwise, and should not demur from applying international law where legislation invokes it, no matter what private litigants seek and whether or not courts generally wish to contribute to the development of international law. As simple and straightforward as these propositions may seem, they resolve many pressing current disputes.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114305895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Economic Theory of Bellwether Trials","authors":"James Fallows Tierney","doi":"10.2139/ssrn.1754231","DOIUrl":"https://doi.org/10.2139/ssrn.1754231","url":null,"abstract":"This paper explores the informational benefits and costs of bellwether trials. It is the first to articulate and defend a theory of bellwether trials using a law-and-economics framework. While some scholars and practitioners have undertaken descriptive analysis of bellwether trials, or defended them on procedural-justice grounds, they have not accounted for an important attribute that is particularly amenable to economic analysis. Bellwether trials serve the valuable function of price signaling: providing data points for future settlement negotiations about the likelihood of success at trial, as well as the damages awards juries are willing to set for certain claims or types of injuries. Drawing from the law-and-economics literature on the selection of disputes for litigation, this paper explains that bellwether trials inform parties of the likelihood they will succeed on the merits of their claims. In so doing, these early trials channel \"easy\" cases (from either the plaintiff's or defendant’s perspective) away from litigation and toward settlement or dismissal.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114929717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Iqbal 'Plausibility' in Pharmaceutical and Medical Device Litigation","authors":"William M. Janssen","doi":"10.2139/SSRN.2519214","DOIUrl":"https://doi.org/10.2139/SSRN.2519214","url":null,"abstract":"This Article studied the actual effect of the United States Supreme Court’s decision in Ashcroft v. Iqbal on the cohort of more than 264 federal pharmaceutical and medical device cases of every type, released from the day of the decision in Iqbal through August 31, 2010. The results of this study of more than 15 months of case law suggest that Iqbal is not having a dramatic impact on this cohort, although its impact cannot be conclusively dismissed as inconsequential either. There have been aggressive applications of Iqbal on occasion. In the 21.2% of the time when Iqbal appears facially to be impactful, a closer examination reveals that this observed effect is, in large measure, decreasing in incidence, coupled with an ability for correction, and frequently avoidable through accessible sources of information. Moreover, it is possible that those perceived effects may be phantoms, because repeated, longstanding, and frequently cited federal precedent among the lower federal courts may well have led to functionally identical results even without Iqbal‘s emergence.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121301991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Trial Selection Theory: A Unified Model","authors":"Keith N. Hylton, Haizhen Lin","doi":"10.2139/ssrn.1609813","DOIUrl":"https://doi.org/10.2139/ssrn.1609813","url":null,"abstract":"This paper provides a formal model of the trial selection process that incorporates the Priest-Klein hypothesis and alternative theories of selection. We derive the conditions under which the hypothesis is valid, and examine implications for the relationship between trial outcome uncertainty and litigation. The model suggests a generalization of the hypothesis.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116802842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Litigation Costs in Civil Cases: Multivariate Analysis","authors":"Emery G. Lee, Thomas E. Willging","doi":"10.2139/ssrn.1606846","DOIUrl":"https://doi.org/10.2139/ssrn.1606846","url":null,"abstract":"This report presents the results of multivariate analysis of factors associated with litigation costs reported in a national, case-bsed survy of attorneys of record in federeal civil cass terminated in the fourth quarter of 2008.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114708187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Subduing the Vultures: Assessing Government Caps on Recovery in Sovereign Debt Litigation","authors":"Elizabeth Broomfield","doi":"10.7916/CBLR.V2010I2.2925","DOIUrl":"https://doi.org/10.7916/CBLR.V2010I2.2925","url":null,"abstract":"This paper explores recent proposals to cap the amount of recovery available through litigation over sovereign debt purchased on the secondary market. Over the past two years, sovereign debt has captured international attention as questions of sustainability and default plague both developed and developing countries. As these concerns escalate, vulture funds have faced increasing criticism for a strategy of purchasing discounted sovereign debt on the secondary market in order to pursue litigation for the full face value of the newly acquired claims. The desire to prevent such profiteering at the expense of the world’s poorest countries has prompted responses from creditor governments such as the United States and the United Kingdom. This note analyzes the merits of these recent proposals.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127065548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
求助内容：
应助结果提醒方式：
京公网安备 11010802042870号
