Law & Society: Civil Procedure eJournal最新文献

{"title":"Fee Shifting in Litigation: Survey and Assessment","authors":"A. Katz, C. Sanchirico","doi":"10.2139/ssrn.1714089","DOIUrl":"https://doi.org/10.2139/ssrn.1714089","url":null,"abstract":"Should the party who loses in litigation be forced to pay the legal fees of the winner? This paper surveys the economic literature regarding the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on the choice between settlement and trial. Section 6 addresses the interaction between the allocation of legal fees and the parties’ incentives for efficient primary activity behavior. Section 7 considers two important variants on simple indemnification: rules that shift costs based on the parties’ settlement negotiations (such as US Federal Rule 68 and the English practice of payment into court), and rules that shift costs based on the margin of victory (such as US Federal Rule 11 and the common law tort of malicious prosecution). Section 8 reviews the brief but instructive empirical literature on legal cost shifting, and Section 9 summarizes the discussion and offers conclusions.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"356 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133168977","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 Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law","authors":"D. Rosenberg, Luke McCloud","doi":"10.2139/ssrn.1629364","DOIUrl":"https://doi.org/10.2139/ssrn.1629364","url":null,"abstract":"In this essay, we show why and how to apply the average of differing state laws to overcome the choice-of-law impediment currently blocking certification of multi-state federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same regardless of whether it is applied in disaggregated form state-by-state at great cost or in aggregated form on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct; fails to accurately reflect and enforce the substantive differences among the governing state laws; and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124646555","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":"'Twombly', 'Leegin' and the Reshaping of Antitrust","authors":"Randal C. Picker","doi":"10.2139/SSRN.1091498","DOIUrl":"https://doi.org/10.2139/SSRN.1091498","url":null,"abstract":"This paper considers the four antitrust decisions in the Supreme Court's 2006 Term. It offers brief discussions of Weyerhaeuser and Credit Suisse. Weyerhaeuser is a small, modest decision. The Court isn't likely to see another predatory bidding case soon and the Court chose to minimize doctrinal complexity by bringing predatory bidding analysis in sync with the Court's prior treatment of predatory pricing in Brooke Group. Credit Suisse too is minimally incremental. In concluding that federal securities law implicitly precluded claims asserting antitrust violations in the sale of new securities, the Court followed its prior decision in Gordon as well as the Court's more recent preference for regulatory schemes over antitrust as seen in Trinko. Pushing antitrust authority toward specialized regulators like the Securities and Exchange Commission broadens the trade-offs that can be made between antitrust concerns and other values and almost certainly expands the circumstances under which industry actors can act collectively. That matters, so Credit Suisse covers more of the economic landscape than Weyerhaeuser, but the decision itself is a small step from prior doctrine. Twombly and Leegin are each, in their own ways, blockbusters. Twombly will appear in case after case, as antitrust defendants try to rely on its new tougher rules for FRCP 12(b)(6) motions. Twombly represents a preference for blunt instruments over sharp edges. The central problem confronted by Twombly is discovery run amok. The Court has the tools in its hands to control that by rewriting the discovery rules and overturning lower court decisions implementing those rules. Twombly suggests that the Court believes that refinement of those rules will fail in controlling discovery and it is willing to pay the price that private plaintiffs will have no good way to get at the best-hidden antitrust conspiracies. Finally, Leegin brings to a close - for now or forever? - the 100-year saga of contractual minimum resale price maintenance. Since its decision in 1911 in Dr. Miles, the Court has confronted this issue again and again in the slightly-refined versions that make up the art of institutional design. Over time, the Court has chipped away at Dr. Miles, first in not finding a violation of Section 1 of the Sherman Act for the unilateral minimum RPM in Colgate in 1919 and in then broadly subjecting nonprice vertical restraints to rule-of-reason treatment in Sylvania in 1977. Given that, on what basis would Dr. Miles survive? That is a question of stare decisis and Leegin ends up in an all-out fight over stare decisis in antitrust. That is new: the Court has been overturning old decisions in antitrust for some time and has done so with little stare decisis fanfare. That suggests that the dispute over stare decisis in Leegin is just a convenient forum for the larger dispute over stare decisis that is percolating through a divided Court. I don't have a full-blown theory of stare decisis but I d","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132014731","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 Necessity of Pleading Elements in Private Antitrust Conspiracy Claims","authors":"Max Huffman","doi":"10.31228/osf.io/yfnw6","DOIUrl":"https://doi.org/10.31228/osf.io/yfnw6","url":null,"abstract":"10 U. Pa. J. Bus. & Emp. L. 627 (2008)","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129845488","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":"Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepeneurial Lawyers","authors":"Myriam E. Gilles, Gary B. Friedman","doi":"10.2307/40041303","DOIUrl":"https://doi.org/10.2307/40041303","url":null,"abstract":"In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice ­and any effort to reform, reduce, redirect that practice ­should be deterrence. All that matters, we argue, is whether the defendant-wrongdoer is forced to internalize the social costs of its actions ­not to whom it pays those costs.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131012574","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":"Theorising Unjust Enrichment Law: Being Realist(ic)?","authors":"K. Barker","doi":"10.1093/ojls/gql021","DOIUrl":"https://doi.org/10.1093/ojls/gql021","url":null,"abstract":"This review article juxtaposes and critically analyses two very different theoretical understandings of Unjust Enrichment Law - one (Weinrib) based upon a formalist, corrective justice approach, the other (Dagan) an avowedly realist approach which is deeply sceptical of the field as a coherent category and which assigns to restitutionary rules functions which are pluralistic, public and distributive in orientation. From the clash of these two deeply contrasting visions, the author attempts to salvage some realistic truths about the structure and normative committments of unjust enrichment law.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132834854","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":"Lawrence v Fen Tigers: Controversies and Clarifications in the Law of Nuisance","authors":"Kee Yang Low","doi":"10.2139/SSRN.2695304","DOIUrl":"https://doi.org/10.2139/SSRN.2695304","url":null,"abstract":"The law of nuisance is an area which is fraught with difficulties. In Lawrence v Fen Tigers [2014] 2 WLR 433, the UK Supreme Court dealt with several of these issues, in particular the relevance of planning permission and when damages should be granted in lieu of an injunction. This comment examines the decision and its implications.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"149 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114529489","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":"Recent Case: Civil Procedure -- Class Actions -- Seventh Circuit Reverses Lower Court's Approval of Class Action Settlement, Citing Evidence of Collusion. -- Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir. 2002)","authors":"A. Volokh","doi":"10.2307/1342779","DOIUrl":"https://doi.org/10.2307/1342779","url":null,"abstract":"Class actions have the potential to increase the efficiency of litigation by eliminating duplicative lawsuits and improving plaintiffs' attorneys' investment incentives. But this potential efficiency gain comes at a cost. For instance, the divergence of plaintiffs' lawyers' interests from those of the class can lead to collusive settlements; for this reason, among others, class action settlements require judicial approval. In Reynolds v. Beneficial National Bank, the Seventh Circuit reversed a lower court's approval of such a settlement, reasoning that the settlement was collusive and inadequate. While the Seventh Circuit was probably right given the facts of this case, only the most egregious cases lend themselves to this kind of analysis. In most cases, the present system of judicial oversight of class settlements is fundamentally unworkable. The market for legal services, not judges' second-guessing, should regulate class action settlements. Rather than attempting the impossible task of valuing an entire litigation to determine whether a settlement is adequate, judges should concentrate on aligning plaintiffs' lawyers' incentives with those of the class through fee regulation or, even better, by letting lawyers buy plaintiffs' claims outright at auction.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133810893","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":"Apuntes para el tratamiento de los proyectos de ley sobre procesos colectivos y acciones de clase. (Some Remarks on Senate's Bills on Class Actions in Argentina)","authors":"Leandro J. Giannini","doi":"10.2139/ssrn.2458247","DOIUrl":"https://doi.org/10.2139/ssrn.2458247","url":null,"abstract":"Spanish Abstract: El trabajo esta destinado a analizar en general los cuatro proyectos de ley que tramitan ante el Senado de la Nacion Argentina sobre el tema de los procesos colectivos o acciones de clase.English abstract: This paper analyzes four bill proposals submitted in the Argentina's Senate, that intend to legislate over collective proceedings or class actions in Argentina.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115213108","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":"Cost-Plus Patent Damages","authors":"M. Abramowicz","doi":"10.2139/ssrn.3366620","DOIUrl":"https://doi.org/10.2139/ssrn.3366620","url":null,"abstract":"This Article assesses recent proposals to use risk-adjusted costs of producing an invention as a basis for either setting patent damages or valuing patents taken by eminent domain. In theory, cost-plus damages can address one of the central challenges of patent law: ensuring that a patentee does not obtain excessive rents for an invention. But cost-plus damages have three principal problems. First, risk may be difficult to estimate, and estimates may be infected by hindsight. Second, if the permitted rate of return is too low, there may be insufficient incentives to invent. \u0000 \u0000Indeed, even a rate of return that seems generous for existing companies may discourage entry into the industry. Third, inventors may spend much more on invention, anticipating that these greater expenses will not only increase the chance of success, but also increase the amount that they can charge. This Article assesses recent literature proposing cost-plus patent damages, and it offers a simulation model to assess the magnitude of these problems. It concludes that while these problems are serious, social welfare still might be increased by considering cost­plus damages as a factor in the patent damages calculus.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115865745","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}