Litigation & Procedure eJournal最新文献

{"title":"Do Parties Negotiate After Trespass Litigation? An Empirical Study of Coasean Bargaining","authors":"Yun-chien Chang, C. Lin","doi":"10.2139/ssrn.2805063","DOIUrl":"https://doi.org/10.2139/ssrn.2805063","url":null,"abstract":"The allocative efficiency outcome predicted by the Coase theorem critically depends on the assumption that, barring high transaction costs, parties will bargain after litigation and mis-allocated entitlements by courts will be re-allocated through voluntary exchanges. Ward Farnsworth’s 1999 informal small-scale survey lent credence to the claim that parties do not bargain after litigation because of the endowment effect and the animosity created by litigation. Farnsworth’s sample is small and statistically biased. Yet no other article has tested whether parties in the real world would systematically fail to exchange for behavioral reasons.<br>This paper combines six different data sources to shed light on this issue. We survey nearly 800 practicing attorneys, who reported that a majority of their clients settled with the other litigating party after courts had rendered decisions. We also examine over 300 hand-coded Taiwanese cases in which the landowner sued the illicit possessor for building a structure on the plaintiff’s property. Real estate transaction records of the land in dispute show that in 6% of the cases, the landowner registered a sale of property to the possessor after the litigation. Evidence from Google Street View and satellite pictures taken by the Taiwan government suggests that the exchange rate is higher than 6%. Logistic regressions suggest that post-litigation bargaining dynamics are at least partly rational — allocative efficiency and transaction costs (conventionally defined) still matter. To the extent that the pro se status proxies for animosity incurred during litigation, Farnsworth’s thesis is also supported.<br>","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114993264","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":"Transposition of Defendant As Plaintiff When the Original Plaintiff Dies: Analysis","authors":"Shivam Goel","doi":"10.2139/ssrn.3371403","DOIUrl":"https://doi.org/10.2139/ssrn.3371403","url":null,"abstract":"It is settled law that the object of Rule 10 of Order I of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) is essentially to bring on record all the persons who are parties to the dispute relating to the subject-matter of the suit so that the dispute may be determined in their presence and the multiplicity of proceedings could be avoided. [R. Dhanasundari V/s A.N. Umakanth &amp; Ors, 2019 SCC Online SC 331].<br><br>In the matter of: Anil Kumar Singh V/s Shivnath Mishra, (1995) 3 SCC 147, it was held that, the object of Rule 10 of Order I of the CPC is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115740015","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":"Global Settlements: Promise and Peril","authors":"J. Coffee","doi":"10.2139/SSRN.3369199","DOIUrl":"https://doi.org/10.2139/SSRN.3369199","url":null,"abstract":"In 2010, Morrison v. National Australia Bank Ltd. destabilized the world of securities litigation by denying those who purchased their securities outside the U.S. the ability to sue in the U.S. (as they had previously often done). Nature, however abhors a vacuum, and practitioners and other jurisdictions began to seek ways to regain access to U.S. courts. Several techniques have emerged: (1) expanding settlement classes so that they are broader than litigation classes and treating the location of the transaction as strictly a merits issue that defendants could waive; (2) adopting U.S. law as applicable to securities issued abroad by crosslisted companies (as Israel has done); (3) use of the Netherland’s WCAM statute to effect a global resolution of a settlement class; and (4) coordination between the courts in both jurisdictions in the case of a cross-listed stock. On the horizon is still a more ambitious technique: use of supplemental jurisdiction to permit a class of foreign claimants to be combined with a class of U.S. claimants. Early decisions have divided on this technique. This article suggests guidelines for courts to follow in whether to allow foreign claimants in securities actions to re-enter the U.S.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123503040","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":"Insurance Structure and Class-Action Settlements","authors":"B. Sarath, James M. McCarrick","doi":"10.2139/ssrn.3355118","DOIUrl":"https://doi.org/10.2139/ssrn.3355118","url":null,"abstract":"This paper examines an aspect of Security Class Action dynamics that has not been previously analyzed using game theory: the effects of fragmentation of interests across the insured defendant and potentially multiple-insurers who are all subject to losses under the class action. Incentive conflicts within the defense coalition not only affects the settlements reached but can result in different level of settlements in cases which are of similar merit (operationalized as facing the same loss function should the case go to trial). Our paper provides an explanation for such outcomes even if the legal system is not subject to any obvious form of inefficiency.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121782965","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":"Google v. Oracle Amicus Certiorari Stage Brief: Vindicating IP’s Channeling Principle and Restoring Jurisdictional Balance to Software Copyright Protection","authors":"Peter S. Menell, D. Nimmer","doi":"10.2139/ssrn.3341517","DOIUrl":"https://doi.org/10.2139/ssrn.3341517","url":null,"abstract":"The Supreme Court should grant review of the Federal Circuit’s decisions in <i>Oracle v. Google</i> for two compelling sets of reasons. First, the Federal Circuit’s decisions conflict with this Court’s seminal decision in <i>Baker v. Selden</i>, 101 U.S. 99 (1879), misinterpret Congress’s codification of this Court’s fundamental channeling principle and related limiting doctrines, and upend nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software. By various measures — economic output and growth, employment, international competitiveness, strategic national defense — the computer software industry is among the most significant in the United States. As the digital revolution continues to unfold, the software industry’s importance will only grow. The balance of intellectual property protection for the software industry drives innovation and competition in this critical economic sector. The Federal Circuit’s decisions revive and exacerbate circuit splits that had largely been resolved through the evolution of well-reasoned regional circuit authority.<br><br>Second, the Federal Circuit’s handling of the <i>Oracle v. Google</i> cases flies in the face of Congress’s clear intent in creating a specialized national appellate patent tribunal. Unlike regional courts of appeals, the Federal Circuit does not have general authority to interpret non-patent intellectual property law. Rather, Congress mandated that the Federal Circuit must apply the copyright law of the regional circuit court in which resides the district court that heard a case involving a patent infringement claim. By failing to apply Ninth Circuit copyright law faithfully in the <i>Oracle v. Google</i> decisions, the Federal Circuit has established itself as the de facto national appellate software copyright tribunal in direct contravention of legislative directive and intent. By the readily available option of bringing software copyright and patent claims in the same complaint, any software company can secure exclusive Federal Circuit appellate jurisdiction over all issues and thereby circumvent regional copyright law and insulate its decisions from regional circuit copyright authority. As a result, it is essential that the Supreme Court grant review to address the clear circuit splits created by the decisions below and restore Congress’s division of appellate authority.<br>","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127004589","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":"‘Suit for Partition’, ‘Exercise of Fraud’ and ‘Recalling of Judgment/Order’: Analysis","authors":"Shivam Goel","doi":"10.2139/ssrn.3329881","DOIUrl":"https://doi.org/10.2139/ssrn.3329881","url":null,"abstract":"Fraud avoids all judicial acts, ecclesiastical or temporal. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. <br><br>A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133931367","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":"The Impact of Legislation on the Outcomes of Civil Litigation: An Empirical Analysis of the Legal Aid Sentencing and Punishment of Offenders Act 2012","authors":"P. Fenn, N. Rickman","doi":"10.2139/ssrn.3326665","DOIUrl":"https://doi.org/10.2139/ssrn.3326665","url":null,"abstract":"The Legal Aid Sentencing and Punishment of Offenders Act (LASPO) came into force in England and Wales in 2013, Part 2 of which brought a number of reforms to the costs and conduct of civil litigation. The current paper seeks to provide the first empirical evaluation of LASPO Part 2. We begin by discussing and presenting the types of data that are required for the evaluation given the difficulties caused by the changing mix of pre- and post-LASPO rules applying to settled claims. We then present graphical and regression analysis to show that LASPO appears to have had a statistically significant effect on settlement behaviour and on the overall costs of litigation, at least in relation to the types of claim and data sources considered here. There are fewer claims, and their recovered base costs, damages and use of formal legal proceedings have all diminished. In our conclusion we put these results in context of the declared objectives of the reforms, speculate on what may have caused the behavioural shifts we observe, and comment on ways to develop the research.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"47 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120986455","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":"The Conundrum of Competing Class Actions and the Efficiency Question","authors":"M. Duffy","doi":"10.2139/ssrn.3652978","DOIUrl":"https://doi.org/10.2139/ssrn.3652978","url":null,"abstract":"There is an increasing phenomenon of competing class actions – class actions purporting to cover the same or nearly the same common issues of alleged wrongdoing but brought by different representative parties (or “lead applicants”) with different lawyers and often different litigation funders. A decision by a court allowing one class action to proceed (with, presumably, one set of lawyers acting) while staying all others is significant and raises a number of matters that deserve consideration. Court and economic efficiency are key among these though they can point to two answers. Efficiency can be produced by economies of scale and lack of duplication (favoring one proceeding) but also by rivalrous competition (favoring more than one proceeding). If litigation has attributes of 'natural monopoly' then efficient franchise bidding through the former may be the preferred solution for trying the common issues stage, though not necessarily the second stage of trying individual issues.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"462 2-3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134196213","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":"Equity","authors":"Irit Samet","doi":"10.1093/oso/9780198766773.001.0001","DOIUrl":"https://doi.org/10.1093/oso/9780198766773.001.0001","url":null,"abstract":"The Law of Equity is a unique junction where doctrinal private law, moral theory, and social perceptions of justice meet. This book explores the general principles that underlie Equity’s intervention in the Common Law, with Chapter 1 arguing that Equity should be preserved as a separate body of law which aims to align moral and legal duties in private law. Chapter 2 discusses the importance of proprietary estoppel and concludes with the argument that Equity, via the doctrine of proprietary estoppel, is redressing a significant failure in the Common Law to tackle behaviour that disregards both morality and efficiency. Chapter 3 deals with fiduciary law, highlighting the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. Chapter 4 examines the clean hands doctrine, in which Equity employs the concept of integrity to construct a coherent system of reasoning about this highly-complex area. Finally, Chapter 5 discusses some findings from the analysis of fiduciary law, proprietary estoppel, and the clean hands doctrine. It highlights the family resemblance between the different doctrines we survey, and points out three areas where the distinctive nature of Equity serves the legal ideal of Accountability Correspondence, in a way that often increases the efficiency of the system.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134362163","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":"Quotas","authors":"Shay Lavie","doi":"10.1007/978-3-540-29805-2_3701","DOIUrl":"https://doi.org/10.1007/978-3-540-29805-2_3701","url":null,"abstract":"","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"152 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132152534","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}