Litigation & Procedure eJournal最新文献

{"title":"Not Ready for Prime Time: Canada's Proposed New Securities Regulator","authors":"H. Naglie","doi":"10.2139/ssrn.3041599","DOIUrl":"https://doi.org/10.2139/ssrn.3041599","url":null,"abstract":"Over the years, many voices in the securities industry, with the support of politicians and academics, have advocated for a single national regulator that would discharge pan-Canadian capital-market oversight more effectively and more efficiently than the prevailing system of multiple provincial regulators. This assertion rests, not unreasonably, on the proposition that a single national regulator administering a single securities statute and operating with a single fee schedule would eliminate the duplication, delays and diseconomies inherent in a system consisting of 13 regulators, 13 securities acts and 13 fee schedules. Nevertheless, repeated efforts over the years to establish a national securities regulator have all failed; according to some, however, this may be about to change. The federal government, together with five provinces (Ontario, British Columbia, Saskatchewan, Prince Edward Island and New Brunswick) and one territory (Yukon) are currently developing and planning to launch, before the end of next year, a new securities regulator. According to the participating jurisdictions, this new regulator, the Capital Markets Regulatory Authority (CMRA), will streamline Canada’s capital markets regulatory framework to better protect investors, foster more efficient capital markets and manage systemic risk. As a result, the Canadian public expects that the CMRA, once launched, will feature many of the attributes and offer many of the benefits that have typically been associated with a single national regulator. Unfortunately, these expectations are destined to be disappointed, if not betrayed, because the CMRA in its current form is not, and will not be able to operate as, a single national regulator. While it is true that the original objective of this most recent securities regulatory reform initiative was the creation of a single national regulator, a combination of constitutional imperatives and political choices precluded that outcome. As a consequence, the CMRA is a significantly compromised Plan B that will lack the ability to unilaterally impose its regulatory authority across the country, a fundamental feature, if not prerequisite, of a single national regulator. Furthermore, there is no assurance or even likelihood that the key provinces of Quebec and Alberta will join the new regulator following its launch. In its current form, it is not even obvious that the CMRA will constitute an improvement relative to Canada’s existing securities regulatory system. Canada’s provincial securities regulators have, in recent years, collaborated to create a relatively high degree of harmonization in securities regulation, which has fostered vibrant and resilient capital-market growth in Canada. While differences among jurisdictions persist, particularly with respect to investor protection initiatives, it would be more than unfortunate if the introduction of the CMRA upsets this regulatory equilibrium and jeopardizes the positive outcomes and grea","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121070615","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":"Class Actions in the Era of Trump: Trends and Developments in Class Certification and Related Issues","authors":"J. Coffee, Alexandra D. Lahav","doi":"10.2139/SSRN.3037564","DOIUrl":"https://doi.org/10.2139/SSRN.3037564","url":null,"abstract":"In this memorandum prepared for the Annual ABA National Institute on Class Actions, Professors Coffee and Lahav review and assess developments in class certification over recent years, and track trends in approaches to certification. Special attention is given to securities litigation, the use of confidential witnesses, ascertainability, attorney's fees, standing, mootness, statutes of repose, and the impact of recent Supreme Court decisions, including Halliburton II and Spokeo.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121300568","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":"Optimal Design of Private Litigation","authors":"L. Kaplow","doi":"10.2139/ssrn.3017443","DOIUrl":"https://doi.org/10.2139/ssrn.3017443","url":null,"abstract":"This article translates and extends Becker (1968) from public law enforcement to private litigation by examining optimal legal system design in a model with private suits, signals of case strength, court error, and two types of primary behavior: harmful acts that may be deterred and benign acts that may be chilled. The instruments examined are filing fees or subsidies that may be imposed on either party, damage awards and payments by unsuccessful plaintiffs (each of which may be decoupled), and the stringency of the evidence threshold (burden of proof). With no constraints, results arbitrarily close to the first best can be implemented. Prior analyses of optimal damage awards, decoupling, and fee shifting are shown to involve special cases. More important, previous results change qualitatively when implicit assumptions are relaxed. For example, introducing a filing fee can make it optimal to minimize what losing plaintiffs pay winning defendants and to reduce the evidence threshold as much as possible — even though the direct effect of these adjustments is to chill desirable behavior, a key feature absent in prior work.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"54 7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116782382","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":"Insurers and Lenders as Monitors During Securities Litigation: Evidence from D&O Insurance Premiums, Interest Rates and Litigation Costs","authors":"D. Donelson, Christopher G. Yust","doi":"10.1111/jori.12231","DOIUrl":"https://doi.org/10.1111/jori.12231","url":null,"abstract":"This study examines whether directors’ and officers’ (D&O) insurers and lenders effectively monitor securities litigation and respond through pricing before case outcomes are known. By “monitoring,” we refer to tracking case progress and obtaining information from the insured (defendant) firm and its counsel prior to case resolution. We find that insurers and lenders increase rates, and that this effect is almost completely isolated to firms with cases that eventually settle. We confirm that this response is reasonable as settled cases are associated with lower future earnings, while there is generally no relation between future earnings and dismissed cases. As direct costs appear low, our results suggest that most costs are indirect in the form of reputational damage. Overall, our results suggest that researchers and policymakers interested in litigation should focus on settled cases, which are the only cases with material long-term costs.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124023171","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":"Understanding Judicial Delays in Debt Tribunals","authors":"P. Regy, Shubho R. Roy","doi":"10.2139/ssrn.2996409","DOIUrl":"https://doi.org/10.2139/ssrn.2996409","url":null,"abstract":"We argue that the judicial statistics that are currently collected are inadequate for understanding and solving the problem of judicial delay. We propose a new approach to collecting data, which will lead to useful insights about delays. We apply this approach to a dataset, and find that about half the time taken by cases is lost to delays. Most delays are due to the petitioners asking for more time to file documents.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121803346","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 Future is Now: Esports Policy Considerations and Potential Litigation","authors":"John T. Holden, Anastasios Kaburakis, R. Rodenberg","doi":"10.1123/JLAS.2016-0018","DOIUrl":"https://doi.org/10.1123/JLAS.2016-0018","url":null,"abstract":"Competitive video gaming is rapidly gaining mainstream attention. Major U.S. television networks have commenced broadcasting such competitions. The term esports has been assigned to the practice, but it remains to be seen whether lawmakers and regulators agree that the contests are indeed sports. This paper provides a comprehensive examination, analysis, and application of the tests that have previously been used to determine whether an activity is a sport. We illustrate potential streams of litigation, some of which are specific to activities classified as sport. The emergence of esports in the United States has highlighted the absence of a legal definition of sport. Be it the newest form of sport or not, esports afford a glimpse to the future of creative competition, business innovation, and the related legal, policy, and litigation implications emerging alongside this new (sporting or otherwise competitive) activity.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134397203","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":"Collectief procederen - Ontwikkelingen in Nederland en Duitsland (Mass litigation - Develoments in the Netherlands and Germany)","authors":"Willem H. Van Boom, F. Weber","doi":"10.2139/ssrn.3636828","DOIUrl":"https://doi.org/10.2139/ssrn.3636828","url":null,"abstract":"<b>Dutch Abstract:</b> Deze bijdrage analyseert de recente ontwikkelingen in Duitsland en Nederland op het gebied van collectieve acties vanuit een vergelijkend standpunt.<br><br><b>English Abstract:</b> This paper assess the recent developments in Germany and the Netherlands as regards collective redress from a comparative point of view.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133423107","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 CFPB's Arbitration Rule: The Road Ahead","authors":"David L. Noll","doi":"10.2139/SSRN.2873866","DOIUrl":"https://doi.org/10.2139/SSRN.2873866","url":null,"abstract":"In May 2016, the Consumer Financial Protection Bureau announced that it intended to exercise its authority under the Dodd-Frank Act to bar consumer financial companies from invoking pre-dispute arbitration agreements to block consumer class actions. This comment considers the most serious threats to the Bureau's arbitration rule and concludes that its prospects are bad. Under Trump, banks and credit card companies will continue to avoid class-action litigation by mandating individual arbitration and there is little that supporters of the Bureau's rule can do about it.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"241 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131405532","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":"Clarifying the 'Probate Lending' Debate: A Response to Professors Horton and Chandrasekher","authors":"J. Kidd","doi":"10.2139/ssrn.2870615","DOIUrl":"https://doi.org/10.2139/ssrn.2870615","url":null,"abstract":"Third-party funding of legal claims is becoming more common, and has been quietly gaining a foothold in the probate arena. Probate funding, the transaction in which a third party purchases the right to some portion of an heir’s interest in an estate, shares many characteristics with broader litigation funding. It also differs in important respects, and a recent paper shines a light on the practice of probate funding. It does so, however, in a way that is likely to confuse, rather than clarify. Needed clarity is hereby added by illustrating the constraints of a limited empirical study, distinguishing between ex ante risk and ex post results, and strengthening the case that purchasing an interest in an estate is a contingent obligation.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128292404","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":"Screening for Patent Quality: Examination, Fees, and the Courts","authors":"Mark A. Schankerman, F. Schütt","doi":"10.2139/ssrn.2885197","DOIUrl":"https://doi.org/10.2139/ssrn.2885197","url":null,"abstract":"We develop an integrated framework to study how governments can improve the quality of patent screening. We focus on four key policy instruments: patent office examination, pre- and post-grant fees, and challenges in the courts. We show that there are important complementarities among these instruments, and identify conditions under which they can be used to achieve either partial or complete screening. We simulate the model to study the welfare effects of different policy reforms. We show that intensifying patent office examination, frontloading patent fees and capping litigation costs all generate welfare gains, while replacing examination with a pure registration system reduces welfare.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122600888","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}