Litigation & Procedure eJournal最新文献

{"title":"Personal Jurisdiction: The Walls Blocking an Appeal to Rationality","authors":"Richard D. Freer","doi":"10.2139/ssrn.3292242","DOIUrl":"https://doi.org/10.2139/ssrn.3292242","url":null,"abstract":"Personal jurisdiction is a gateway to the judicial system. Without it, a plaintiff cannot vindicate her claims and the community cannot benefit from private enforcement of the law. After a 21-year hiatus from the field, the Supreme Court decided six personal jurisdiction cases between 2011 and 2017. Scholars have criticized the Court's constriction of personal jurisdiction in this \"new era.\" In a forthcoming article, Professor Adam Steinman urges an interesting tack in an effort to expand forum availability. He would import \"remedial rationality\" into the equation, asking whether there is a \"rational basis\" for a court to hear a given case. He identifies three fact patterns in which his approach could remedy the current sclerotic state of jurisdiction: the \"home state,\" \"safety net,\" and \"aggregation\" scenarios. <br><br>This piece responds to Professor Steinman's proposal, and concludes that the appeal to rationality is tantamount to an appeal to the reasonableness analysis which is part of the International Shoe test. The appeal seems doomed by the Court's efforts, including efforts in the new era, to subjugate the assessment of reasonableness to the assessment of whether defendant forged a volitional tie with the forum.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129935686","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":"Arbitrating Disputes in Third-Party Funding: A Parallel With Arbitration in the Financing Sector","authors":"Duarte G. Henriques","doi":"10.2139/SSRN.3285723","DOIUrl":"https://doi.org/10.2139/SSRN.3285723","url":null,"abstract":"The topic of Third-Party Funding in international arbitration has been almost exhaustedly debated. However, little -- if any -- relevance has been given to the use of dispute resolution mechanisms in the context of litigation financing. It can be said that the litigation financing is a financing, and therefore there is not much else to explore given the work that has already been done in regards to the use of arbitration (and other dispute resolution means) within this realm. In any case, one can ask whether the litigation financing industry has particular features that need to be looked at, or if there are specific kinds of disputes that arise in this context. \u0000 \u0000This article endeavours to capture those nuances that the litigation financing may pose when faced with a dispute and argues that, in very same vein as the finance and banking sector, arbitration is the best means to solve disputes.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"929 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116422765","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":"An Evidence-Based Approach to Class Action Reform in Australia: Closed Class Actions, Open Class Actions and Access to Justice","authors":"V. Morabito","doi":"10.2139/SSRN.3272089","DOIUrl":"https://doi.org/10.2139/SSRN.3272089","url":null,"abstract":"In May 2018 the Australian Law Reform Commission (“ALRC”) released a discussion paper on class action proceedings and third party litigation funders. It contained the proposal that the federal class action legislation should be amended to provide that all federal class actions should be initiated as open class actions. I have reviewed the descriptions of represented groups - provided in the originating applications and statements of claim - with respect to all the federal class actions filed before 30 September 2018. \u0000In this report I will provide some of the major data and findings that have emerged from this review, in the hope that it will be of some assistance - to the ALRC, the Commonwealth Attorney-General and/or other interested persons and entities - in determining whether the ALRC’s proposal, that all federal class actions should be commenced as open class actions, should be retained in the ALRC’s final December 2018 report and, if so, in identifying the major issues and challenges that will need to be addressed in implementing this recommendation as well as its likely impact.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123334723","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":"Fiduciary Litigation in Louisiana: Litigation Against the Mandatary (Agent), Executor, and Trustee","authors":"E. Carter","doi":"10.2139/SSRN.3308198","DOIUrl":"https://doi.org/10.2139/SSRN.3308198","url":null,"abstract":"These materials were created and presented in connection with LSU's annual Estate Planning Seminar. The paper explores the various types of fiduciary litigation in Louisiana that arises in the estate planning and administration setting. The paper considers the various types of actions and remedies available, the types of proceedings, and the parties with standing.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134494983","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":"'Major Questions' Moderation","authors":"Joshua S. Sellers","doi":"10.2139/ssrn.3257134","DOIUrl":"https://doi.org/10.2139/ssrn.3257134","url":null,"abstract":"The Chevron doctrine instructs federal courts to afford deference to reasonable agency interpretations of ambiguous authorizing statutes. Yet in select instances, courts have deviated from Chevron’s command. One of the more confounding deviations is found in cases involving “major questions.” Under this burgeoning doctrine, courts have appropriated what would appear to be typical deference cases, on the basis of the claimed political or economic exceptionality of the stakes. This “major questions exception” is at the center of ongoing debates about the future of Chevron deference and administrative governance more broadly. <br><br>In this Article, I appraise the major questions doctrine by way of comparison to two other doctrines under which federal courts deviate from convention, and assume principal decision-making authority in light of political or economic concerns. The first arises from a set of cases in which an agency interpretation presents a “serious” constitutional question, leading courts to employ the constitutional avoidance canon. The second arises from cases involving state law claims implicating “substantial” federal issues, leading courts to find federal court jurisdiction where it otherwise wouldn’t exist. <br><br>Both doctrines provide useful comparators, and in examining how they have been applied, we gain valuable insight into the current and future legitimacy of the major questions doctrine. After drawing the comparisons, the Article argues that the “expertise” justification for the constitutional avoidance canon does not extend to the major questions exception. But the “uniformity” justification for the federal court jurisdictional anomaly might justify the major questions exception as well, depending on how it is employed. The Article concludes by presenting a novel proposition for how the major questions doctrine could evolve to promote uniformity concerns. Until we learn more about which direction the doctrine is headed, moderation is the best approach.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130259581","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":"Symmetric and Asymmetric Information Models Living Together: Evidence from Brazilian Courts","authors":"F. Corrêa, J. Trecenti","doi":"10.2139/ssrn.3205741","DOIUrl":"https://doi.org/10.2139/ssrn.3205741","url":null,"abstract":"Priest & Klein (1984) is one of the most influential legal publications of all time. The authors states that the distribution of lawsuits is not the same as the distribution of disputes. Under efficiency and symmetry assumptions, plaintiffs and defendants rationally choose when to prosecute, ensuring that only highly unpredictable disputes becomes lawsuits. Priest and Klein model found support on several empirical tests across the years, but the tests are usually based on U.S. evidence. In this paper, we test the model once again using a unique data set from São Paulo's Court, in Brazil. We also analyze the cases behavior when the court offers waiver fees. Our evidence favors the Priest and Klein hypothesis on the no fee waiver scenario, considering both the win rates and other hypothesis derived from the original paper. However, an asymmetric information model seems more suitable for the fee waiver scenario, although we analyze very similar cases on both scenarios.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131024825","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":"Administrative Law and Rights in the UK House of Lords and Supreme Court","authors":"Jason N. E. Varuhas","doi":"10.2139/ssrn.3164719","DOIUrl":"https://doi.org/10.2139/ssrn.3164719","url":null,"abstract":"Over the last three years the UK Supreme Court has undertaken renewed efforts to forge a jurisprudence of rights within the common law of judicial review in cases such as Kennedy v Information Commissioner, R (Osborn) v Parole Board, Pham v Secretary of State for the Home Department, Keyu v Secretary of State for Foreign and Commonwealth Affairs, and R (Unison) v Lord Chancellor. \u0000Much has been written of these developments from a contemporary perspective, with a great deal of commentary dedicated to analysing individual cases. The contribution of this paper is to place these developments in the context of the development of the modern system of judicial review, and to offer a ‘long view’ of the role which the House of Lords and Supreme Court have attributed to ‘rights’, including human and fundamental rights, within administrative law doctrine. In turn this serves to deepen our understanding of current trends. The paper charts the place of rights within administrative law over four decades, from 1977 to 2017. \u0000The paper identifies and analyses four episodes in the interrelationship between administrative law and ideas of rights within the House of Lords and Supreme Court. \u0000First, from the late 1970s and through the 1980s the House of Lords actively sought to forge an integrated, unified and coherent field of public law, and in doing so constructed the basic superstructure of contemporary judicial review. This new system was based in a public interest conception of public law which held that public law’s principal function was to ensure proper exercise of public power in the public interest. The corollary of this focus on protection of the public interest was that the courts marginalised the role of rights within judicial review. \u0000Second, through the 1990s the House of Lords came under pressure, due to the UK’s commitments under the European Convention on Human Rights, to give greater recognition and protection to basic rights within administrative law doctrine. The House of Lords duly took a number of steps to afford basic interests greater protection through the common law of review, albeit the courts were constrained in how far they could develop the common law by the public interest framework that had only recently been erected. \u0000Third, the 2000s saw the entry into force of the Human Rights Act 1998, which created a field of law specifically constituted to afford strong protection to basic rights and which afforded English courts the tools to ensure compliance with Convention obligations. With the emergence of this new field the pressure that had built up during the 1990s to develop the common law of review along rights-based lines fell away. With this pressure release the common law continued to develop broadly in line with the public interest framework put in place during the 1980s. \u0000Fourth, from around 2014 onwards the new Supreme Court has shown renewed interest in developing a rights-jurisprudence at common law, and ‘synthesising’ the co","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125690278","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":"Buying the Verdict: Firms’ Strategic Response to Litigation","authors":"Lauren Cohen, Umit G. Gurun","doi":"10.2139/ssrn.2994572","DOIUrl":"https://doi.org/10.2139/ssrn.2994572","url":null,"abstract":"We document evidence that firms systematically increase specialized, locally targeted advertising following the firm being taken to trial in that given location, precisely following initiation of the suit. In particular, we use legal actions brought against publicly traded firms over the 20-year sample period that progress to trial between 1995 and 2014. In terms of magnitude, the increase is sizable: targeted local advertising increases by 23% (t = 4.37) following the suit. They focus their advertisement spikes specifically toward jury trials, and in fact specifically toward the most likely jury pool. Last, we document that these advertising spikes are associated with verdicts, increasing the probability of a favorable outcome. This paper was accepted by Tomasz Piskorski, finance. Funding: We gratefully acknowledge funding from the National Science Foundation [Grant SciSIP-1535813]. Supplemental Material: The data files and online appendix are available at https://doi.org/10.1287/mnsc.2023.4896 .","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123552611","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":"Reflections on the New High Court of Federal Capital Territory, Abuja (Civil Procedure Rules) 2018","authors":"Edieya Davidson","doi":"10.2139/ssrn.3130255","DOIUrl":"https://doi.org/10.2139/ssrn.3130255","url":null,"abstract":"The new High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018 was signed on the 30th day of October, 2017 by Hon. Justice Ishaq Usman Bello (Chief Judge of the High Court of the Federal Capital Territory, Abuja) and the Rules came into force on the 15th day of February, 2018. The 2018 Rules contain some laudable improvements upon the 2004 Rules. The new rules will enlarge the frontiers of civil practice and procedure in the High Court of the Federal Capital Territory, Abuja as a result of these key improvements.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126602537","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":"Insolvency Forum Shopping, Revisited","authors":"W. Ringe","doi":"10.1007/978-94-6265-363-4_1","DOIUrl":"https://doi.org/10.1007/978-94-6265-363-4_1","url":null,"abstract":"","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"2398 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130667432","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}