The Review of Litigation最新文献

{"title":"A Primer on Bellwether Trials","authors":"Alexandra D. Lahav","doi":"10.2139/SSRN.3013402","DOIUrl":"https://doi.org/10.2139/SSRN.3013402","url":null,"abstract":"This essay describes the uses of bellwether trials in multidistrict litigation [MDL] cases and the issues this practice raises. The discussion is aimed particularly at judges who have used or are considering using this procedure. It will first define bellwether trials, then discuss (i) selection procedures and the problems with current practices, (ii) conducting the trials, and (iii) venue considerations. Overall, the current practice of bellwether trials, in which very few or no trials are conducted and those cases that are tried receive outsize attention should be avoided. Instead, judges should focus on structuring equitable procedures for trying cases using social science methodology.","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131508510","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":"Equitable Defenses in the Age of Statutes","authors":"T. L. Anenson","doi":"10.2139/SSRN.2877457","DOIUrl":"https://doi.org/10.2139/SSRN.2877457","url":null,"abstract":"The Supreme Court’s pending decision in SGA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, is the most recent in a series of cases struggling with the same issue: What is the scope and content of equitable defenses in federal statutes? This Article analyzes the integration of equitable defenses in statutory law for the first time. Concentrating on Supreme Court cases, it examines these doctrines across several statutory subjects. It identifies a pattern in the decisional history of equitable defenses in order to assist in building a body of cases along principled lines. The Article also reveals that while the Court tends to accept equitable defenses according to their tradition, it likewise limits them in light of legislative objectives. An expansive attitude of inclusion corresponds with a more restrictive view of their application. What is more, the Court is supplying their substance and scope from a combination of state and federal law. In this regard, the Court is adjudicating equitable defenses to generate a general common law. The Article additionally outlines the Court’s developing supervisory role vis-a-vis the lower courts. It further explores the challenges of continuity and change in incorporating these private law principles into public law to provide direction for the future. Overall, the Article suggests a way of looking at equitable defenses to better appreciate their place in the regulatory state.","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"57 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120907695","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 Ongoing Milberg Weiss Controversy","authors":"L. Hoffman, Alan F. Steinberg","doi":"10.2139/ssrn.1641341","DOIUrl":"https://doi.org/10.2139/ssrn.1641341","url":null,"abstract":"I. INTRODUCTION Some cases never seem to end. More than a decade after the government first began investigating alleged criminal activity by lawyers at Milberg Weiss Bershad & Schulman LLP, a quartercentury after the earliest alleged wrongdoing took place, and more than two years after the last criminal defendant pled guilty and went to jail, the case continues to generate headlines and widespread public interest.1 Like a black cloud, controversy has followed the Milberg2 prosecution from the start.3 Milberg was, after all, the top securities class action law firm in the country (so far ahead of its competitors that for many years there was not a close second to speak of),4 a title to which it may still lay claim even today.5 Having chosen to prosecute the preeminent plaintiffs' firm, the Bush Administration's Department of Justice could not have been surprised when its decision to prosecute was criticized for being driven more by politics than by law. Some questioned indicting the law firm itself. Others critiqued the prosecution's tactics.7 Still others, more recently, have raised concern about making honest services fraud the central charge in the indictment.8 The Supreme Court's landmark decisions this summer reinterpreting and narrowing the scope of 18 U.S.C. § 1346's reach may bear no direct relevance to the Milberg case, but they do serve as an important and timely reminder that the prosecution was centrally based on a notoriously ambiguous statute.9 The single greatest source of controversy surrounding the Milberg prosecution, however, has always been whether anyone was actually harmed by what the lawyers did.10 That certainly is not meant to suggest that, in the absence of proof of harm, the Milberg lawyers were innocent of all criminal wrongdoing. By hiding the payments they made, they likely committed (or at least suborned) perjury.11 But this high profile prosecution was not built on such pedestrian accusations. Rather, to send the message that this was a major racketeering case, it was essential for the government to show that Milberg' s actions caused significant harm to the investors they were supposed to be representing.12 Indeed, without proof that someone was injured, the argument for regulating the lawyer's conduct through the normal means by which professional norms are enforced is hard to overcome.13 Broadly summarized, the indictment alleged that over a span of roughly twenty years and approximately one hundred eighty lawsuits, Milberg lawyers had been making undisclosed payments to the named plaintiffs in the cases they filed.14 There is not any dispute that one of the reasons Milberg paid these people was so they could have a stable of willing persons at the ready to serve as representative plaintiffs in the class action suits they would file.15 That was important because before 1995 the first lawyers to file were often appointed lead counsel, beating out all other comers.16 Certainly, those other lawyers who were not name","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121848495","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":"Hall Street, Judicial Review of Arbitral Awards, and Federal Preemption","authors":"Nicholas R. Weiskopf, Matthew S. Mulqueen","doi":"10.2139/SSRN.1473882","DOIUrl":"https://doi.org/10.2139/SSRN.1473882","url":null,"abstract":"The United States Supreme Court's decision in Hall Street Associates L.L.C. v. Mattel, Inc. resolved an important conflict amongst the Circuits as to whether parties could contractually expand the scope of judicial review of awards set forth in the Federal Arbitration Act (FAA). While the Court held that such attempts were impermissible because the FAA's bases to vacate or modify awards, however narrow, were \"exclusive,\" its opinion nonetheless raised more questions than it answered. One such issue was what was to become of \"manifest disregard,\" a judicially created ground to refuse confirmation intended to cover those unusual situations where arbitrators reached wholly bizarre results based on seemingly purposeful departures from basic rules of law. \"Manifest disregard\" is not referenced as such by the FAA, but, perhaps said the Court, it was nothing more than a reference to the sort of \"abuse\" of arbitral power which was specified in the FAA as a basis to refuse confirmation. This was to provoke a split commentary as to whether \"manifest disregard\" was still with us. The second such issue was raised by the Court's reference to the latitude parties might have to circumvent the FAA's review restrictions by arranging for review pursuant to state statute or even common law. Would review really be broader under these rubrics, and how would parties to an FAA case escape its post-award provisions, particularly given principles of preemption. Could a case be an FAA case for some purposes, but not for purposes of confirmation. This article deals with the issues just identified, and also traces early attempts by lower federal and state courts to intuit the Supreme Court's intentions in raising, but not answering them.","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116470854","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 Remedies and Philip Morris v. Williams","authors":"Keith N. Hylton","doi":"10.2139/SSRN.977998","DOIUrl":"https://doi.org/10.2139/SSRN.977998","url":null,"abstract":"This essay is a series of reflections on the implications of Philip Morris for the tort reform movement. I make an effort below to find a middle ground between the positions of the plaintiff and defendant in Philip Morris. That middle ground involves largely returning to the Supreme Court's pre-Gore treatment of punitive damages and introducing new procedural devices for defendants to challenge awards. I close with a few observations on the implications of this case law for pain and suffering awards.","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129464986","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":"Payment of Expenses in Securities Class Actions: Ethical Dilemmas, Class Counsel, and Congressional Intent","authors":"G. Miller","doi":"10.2139/SSRN.361081","DOIUrl":"https://doi.org/10.2139/SSRN.361081","url":null,"abstract":"This paper considers the law and economics of legal ethics rules in certain states that purport to prohibit an attorney from advancing costs and expenses of litigation with repayment by the client contingent on success of the case. The paper argues that these rules, to the extent they are otherwise effective, should not be enforced in the context of private securities litigation brought under the Private Securities Litigation Reform Act of 1995.","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127230424","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":"Who Should Guard the Guardians? A New Approach for Monitoring Class Action Lawyers","authors":"A. Klement","doi":"10.2139/SSRN.311339","DOIUrl":"https://doi.org/10.2139/SSRN.311339","url":null,"abstract":"Class actions have come to play a significant role in American legal system. Law enforcement is no longer left to the state alone, as private pursuit of self interest is harnessed to promote the common good. But private law enforcement has also had its down sides. Lawyers' gain has often come at the price of class members' loss, and misalignment of interests has many times resulted in less compensation and deterrence and more private attorney profits than desired. The question therefore has been how to guarantee that lawyers pursue their self interest yet leave society at large and class members in particular as well off as possible. This paper analyzes the different monitoring schemes that have been unsuccessfully applied in class actions, namely, monitoring by courts and by class members. Building on this analysis it then proposes a workable alternative: private monitoring by self interested individuals and organizations, not necessarily class members, who would compete and pay to obtain the monitoring position, and would receive a share of the class recovery in return.","PeriodicalId":447704,"journal":{"name":"The Review of Litigation","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114979236","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}