Law & Society: Civil Procedure eJournal最新文献

{"title":"A Theoretical and Empirical Study of Forum Shopping in Diversity Cases","authors":"N. Sukhatme","doi":"10.2139/ssrn.1989250","DOIUrl":"https://doi.org/10.2139/ssrn.1989250","url":null,"abstract":"An underappreciated consequence of diversity jurisdiction is that it can promote forum shopping within the federal court system. I develop a general model of forum shopping, which I then test with 532,097 federal diversity cases terminating between 1988 and 2011. Confirming a testable prediction of my model, I find that parties (particularly corporations) who litigate outside of their home state settle cases more often than parties who litigate at home. My results are robust under a variety of specifications, including ones with fixed effects for plaintiff home state, years of suit filing and termination, forum, and case type.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115444826","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":"Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices","authors":"Elizabeth Tippett","doi":"10.2139/ssrn.1995238","DOIUrl":"https://doi.org/10.2139/ssrn.1995238","url":null,"abstract":"This article examines federal opinions from 2005-2011 challenging subjective employment practices under a 'disparate impact' or 'pattern or practice' theory to assess the likely impact of Dukes v. Wal-Mart on such cases. Although the Wal-Mart ruling favors employers, results suggest that the ruling’s effect on employer selection practices will be muted by the low prevalence of such claims. An average employer’s litigation risk in connection with such claims is so vanishingly small that I surmise they rarely examine or alter their subjective selection practices in response. However, the risk of a lawsuit challenging subjective employment practices was not homogenous across all employers. Fortune 100 companies faced a substantial risk – about 15% – of being subject to such a suit between 2005 and 2011 These mega-class actions are unlikely to withstand the more stringent certification standard articulated in Wal-Mart. I discuss the potential policy implications of a litigation landscape in which the very largest disparate impact and pattern or practice class actions are no longer viable. I observe that the public value of these mega-class actions is difficult to assess because the plaintiffs were never forced to prove the availability of a less discriminatory selection procedure. I then offer potential regulatory options to address the overall dearth of cases challenging subjective employment practices and the problematic employer incentives generated by Wal-Mart.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"201 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126967669","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":"Evidence in Competition Law","authors":"M. Laskowska","doi":"10.2139/ssrn.2337183","DOIUrl":"https://doi.org/10.2139/ssrn.2337183","url":null,"abstract":"This paper first discusses the object of evidence, and then rules of evidence and evidential proceeding before finally analysing various types of proof, all with reference to competition law.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124691640","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":"A Case Study in Patent Litigation Transparency","authors":"Bernard H. Chao, Derigan A. Silver","doi":"10.2139/SSRN.2334417","DOIUrl":"https://doi.org/10.2139/SSRN.2334417","url":null,"abstract":"The courts have long recognized a general right to inspect and copy judicial documents. Yet, large swaths of filings in patent litigations are often inaccessible. This article takes a closer look at this phenomenon by examining a single case. The Monsanto v. DuPont dispute over genetically modified Roundup resistant crops was chosen because of the impact it has on both agribusiness and patent law. The $1 billion award against DuPont will undoubtedly shape the future of the market for genetically modified crops. Moreover, because the award was issued before a single infringing seed was sold, the case raises novel patent remedy issues. This article assesses how transparent this landmark case was from two perspectives. Initially, it measures the nature and quantity of documents filed under seal. Next, this article selectively drills down on three different phases of the litigation, the pleadings, summary judgment and trial, to provide a more nuanced understanding of what the public cannot see. The results show a case that was fought largely in secret except for trial which was mostly open. Approximately 34% of the 1,697 of the filings listed in the PACER docket were filed under seal. This includes many of the key filings and court decisions. Moreover, the large majority of these secrets filings were made without any judicial oversight. It may be that the court simply did not have the resources to review all the applications to seal in this massive case. But regardless of the cause, this case highlights a recurring problem in patent litigation; the rampant sealing of documents of significant importance to the public.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115776898","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":"Pro-Business and Anti-Efficiency: How Conservative Procedural 'Innovations' Have Made Litigation Slower, More Expensive, and Less Efficient","authors":"Michael B. Eisenkraft, J. Richards","doi":"10.2139/ssrn.2291519","DOIUrl":"https://doi.org/10.2139/ssrn.2291519","url":null,"abstract":"An analysis of the causes and effects of changes in civil procedure in U.S. courts.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122045962","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":"Taming Credit Card Fees by Requiring the Biggest Banks to Compete for Merchant Acceptance: An Inter-Bank Competitive Model","authors":"Steven Semeraro","doi":"10.2139/SSRN.2223518","DOIUrl":"https://doi.org/10.2139/SSRN.2223518","url":null,"abstract":"In the multi-district class action In re: Payment Card Interchange Fee and Merchant Discount Antitrust Litigation merchants claim that the fees they pay to accept Visa and MasterCard cards are too high because the banks issuing those cards do not compete for card acceptance. Because so many of their customers rely on Visa and MasterCard cards, the merchants contend that they cannot stop accepting either brand in toto. They would risk losing too many customers. But if the banks had to compete with each other, the merchants believe, they might credibly threaten to refuse one bank’s cards, forcing it to lower its acceptance fees. The merchants also contend that they could apply competitive pressure on the card-issuing banks by steering their customers to payment mechanisms that are less expensive than credit cards. Visa and MasterCard, however, prohibit merchants from pursuing these strategies. Without the ability to spur competition, the merchants contend, the card networks’ default interchange fee is the proverbial offer they can’t refuse.In 2005, the merchants filed a class action alleging that the card networks’ rules restrained competition on card acceptance fees and thus violated the antitrust laws. After seven years of litigation and negotiation, the case has entered a settlement phase. Visa and MasterCard have offered to (1) pay the merchants approximately $7.25 billion and (2) relax their rules restraining merchants from steering their customers toward less expensive payment mechanisms. The proposed settlement, however, would not alter the rules requiring merchants to accept all Visa or MasterCard credit cards regardless of the issuing bank.This article shows that simply empowering merchants to steer customers to less expensive payment mechanisms through discounting or surcharging cannot sufficiently address the competitive problem with card acceptance fees. Restrictions in the settlement would likely prevent most merchants from using these competitive devices, and if merchants were given unfettered discretion to steer their customers, consumers could be worse off than they are now. Merchants should instead be empowered to accept credit cards on an issuer-by-issuer basis. This intuitively obvious solution has traditionally been criticized on the ground that it would undermine the efficiency of the credit card system. The dramatic growth and popularity of credit card networks demonstrates, the critics argue, that they have been doing something right. Compelling millions of card-accepting merchants to enter individual fee agreements with thousands of card-issuing banks would impose transaction costs swamping any possible savings from more competitive interchange fee setting. And the patchwork of card acceptance could frustrate and anger cardholders.This article proposes an inter-bank competitive model that would produce virtually all of the benefits of issuer-based-acceptance-fee competition with virtually none of the feared inefficiencies. V","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127112062","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":"Inflation-Based Adjustments in Federal Civil Monetary Penalties","authors":"J. Chen","doi":"10.2139/SSRN.2148650","DOIUrl":"https://doi.org/10.2139/SSRN.2148650","url":null,"abstract":"Civil monetary penalties play a vital role in federal law. The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, prescribes rules for the regular adjustment of federal civil monetary penalties in response to inflation. Three statutory defects have undermined the Inflation Adjustment Act. First, the Act's 10 percent cap on initial adjustments creates an \"inflation gap\" relative to the level that would properly reflect inflation. Second, the Act directs federal agencies to use Consumer Price Index data that are at least 7 months and as many as 18 months out of date. This creates \"CPI lag\" in the adjustment of civil monetary penalties. Third, the Act's rounding rules can force some agencies to wait 15 years or more between adjustments.Originally prepared as a report for the Administrative Conference of the United States, this article examines the Inflation Adjustment Act and recommends possible legislative remedies for the Act's defects.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125457729","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 Analysis of a Court's Decision to Deny Injunctive Relief to Michael McAdoo","authors":"Timothy Liam Epstein","doi":"10.2139/SSRN.1956570","DOIUrl":"https://doi.org/10.2139/SSRN.1956570","url":null,"abstract":"This article discusses the denial of UNC's defensive end Michael McAdoo's request for permanent injunction. McAdoo was found ineligible due to accepting money from an agent, which he claims he did not realize he was receiving, and for academic violations. Although he was denied permanent injunction there is an NCAA hearing scheduled for October.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122001357","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":"Competition as a Discovery Procedure: A Rejoinder to Professor Kirzner and Others on Coordination and Discovery","authors":"D. Klein","doi":"10.2139/SSRN.1875243","DOIUrl":"https://doi.org/10.2139/SSRN.1875243","url":null,"abstract":"The Fall 2010 issue of the Journal of Private Enterprise featured a complicated set of papers (link to the issue). The lead article was a long paper by Jason Briggeman and me, on Israel Kirzner’s work on coordination and discovery. The thrust of our paper was an affirmation of Kirzner’s central claims, but with two alterations. First, we propose that the coordination that figures into the central issues ought to be understood as what we call concatenate coordination. Second, the central statements at issue ought not be asserted as holding 100 percent of the time, but rather should be by-and-large statements, making for a strong presumption, not a categorical result. Israel Kirzner then replied to our paper. The pair of papers was then the object of commentary by Peter Boettke and Daniel D’Amico, Steven Horwitz, Gene Callahan, and Martin Ricketts. Here, I respond to Kirzner, and, in an appendix, more briefly to the others.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123876831","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":"Better Regulation by Appeal","authors":"W. Voermans, Y. Schuurmans","doi":"10.54648/euro2011035","DOIUrl":"https://doi.org/10.54648/euro2011035","url":null,"abstract":"This paper looks into the way in which appeal and judicial review by the European Union (EU) Courts are or can be (made) instrumental to Better Regulation (BR). We examine the way EU Courts review EU legislation before and after the Lisbon Treaty and try to think through the possible consequences the Treaty changes of 2009 have. On this occasion, we take a closer look at the interesting and more or less parallel development of judicial review of non-primary legislation in the United States under the Administrative Procedure Act and the way judiciary review on individual appeal has been transformed into a cornerstone for BR. Is a similar development probable, if indeed advisable, in the EU?","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122609272","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}