Before the COVID-19 pandemic, few adults would have asked themselves the question, “what are courts?” If they did, the most likely answer would have talked about the courts in terms of buildings. Suddenly a pandemic was upon us, and that forced us to think again. Courts went online, and looking at what happened helps us to consider more clearly what courts really are. In fact, courts are providers of important services. Focusing on that mission of service provides a filter for considering both current adaptations and future plans. When in-person hearings can resume safely, there will be a tendency to try to go back to the way things were before. But should we? To answer that question, we need to know more about what has been happening in those online hearings. In March, to keep vital legal processes moving while keeping participants and the public safe, the Texas Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create public access to those proceedings on YouTube. During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours. In so doing, it provided a unique gift: a window into the crucial proceedings of everyday trial courts, hearings that are normally ignored and that almost never result in reported opinions. This article describes the findings of on an observational study of hearings in those courts. A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings “work”? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts? The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence). As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself i
{"title":"Observing Online Courts: Lessons from the Pandemic","authors":"Elizabeth Thornburg","doi":"10.2139/ssrn.3696594","DOIUrl":"https://doi.org/10.2139/ssrn.3696594","url":null,"abstract":"Before the COVID-19 pandemic, few adults would have asked themselves the question, “what are courts?” If they did, the most likely answer would have talked about the courts in terms of buildings. Suddenly a pandemic was upon us, and that forced us to think again. Courts went online, and looking at what happened helps us to consider more clearly what courts really are. In fact, courts are providers of important services. Focusing on that mission of service provides a filter for considering both current adaptations and future plans. When in-person hearings can resume safely, there will be a tendency to try to go back to the way things were before. But should we? To answer that question, we need to know more about what has been happening in those online hearings. \u0000 \u0000In March, to keep vital legal processes moving while keeping participants and the public safe, the Texas Office of Court Administration purchased Zoom licenses for all Texas judges and provided training on how to create public access to those proceedings on YouTube. During the period from March to August, Texas judges held an estimated 440,000 remote hearings in every case type and type of proceeding, including bench and jury trials, with 1.3 million participants lasting almost 1 million hours. In so doing, it provided a unique gift: a window into the crucial proceedings of everyday trial courts, hearings that are normally ignored and that almost never result in reported opinions. \u0000 \u0000This article describes the findings of on an observational study of hearings in those courts. A team of six law students observed online hearings between May 11th and June 30th and reported what they saw. In addition, the findings include input from interviews with judges, lawyers, and CASA staff. This article focuses on proceedings in the family courts because those courts were among the first large-scale users of online Zoom hearings and because they faced many of the most difficult situations in using the online format. The observations provide a look at the experience of judges, lawyers, parties and witnesses in family cases. Did the hearings “work”? Are there best practices for judges and lawyers? And how did the online setting impact the parties whose lives are before the courts? \u0000 \u0000The students observed 305 hearings. Of those, 198 were family law hearings. About sixty percent of the hearings were contested (at least at the outset of the hearing). To help manage the hearings, 26 used Zoom breakout rooms, 54 used waiting rooms, and 34 used screensharing (60 involved documents in evidence). As expected, there were technological difficulties: 95 of the hearings had some kind of problem with technology, but many of the problems were extremely minor and quickly resolved (e.g. problems logging in, audio quality, or speaking while muted) as the judges took on a new role by providing tech support. Many of those will disappear as judges and lawyers become familiar with the technology and the technology itself i","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124046948","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}
Pub Date : 2019-09-01DOI: 10.36644/MLR.119.1.DISCOVERY
Diego A. Zambrano
This article develops an approach to discovery that is grounded in regulatory theory and administrative subpoena power. The conventional judicial and scholarly view about discovery is that it promotes fair and accurate outcomes and nudges the parties towards settlement. While commonly held, however, this belief is increasingly outdated and suffers from limitations. Among them, it has generated endless controversy about the problem of discovery costs. Indeed, a growing chorus of scholars and courts have offered an avalanche of reforms, from cost shifting and bespoke discovery contracts to outright elimination. Recently, Judge Thomas Hardiman quipped that if he had absolute power he would abolish discovery for cases involving less than $500,000. These debates, however, are at a standstill and existing scholarship offers incomplete treatment of discovery theory that might move debates forward. The core insight of the project is that in the private enforcement context — where Congress deliberately employs private litigants as the main method of statutory enforcement — there is a surprisingly strong case that our current discovery system should be understood in part as serving regulatory goals analogous to administrative subpoena power. That is, discovery here can be seen as an extension of the subpoena power that agencies like the SEC, FTC, and EPA possess and is the lynchpin of a system that depends on private litigants to enforce our most important statutes. By forcing parties to disclose large amounts of information, discovery deters harm and, most importantly, shapes industry-wide practices and the primary behavior of regulated entities. This approach has a vast array of implications for the scope of discovery as well as the debate over costs. Scholars and courts should thus grapple with the consequences of what I call “regulatory discovery” for the entire legal system.
{"title":"Discovery as Regulation","authors":"Diego A. Zambrano","doi":"10.36644/MLR.119.1.DISCOVERY","DOIUrl":"https://doi.org/10.36644/MLR.119.1.DISCOVERY","url":null,"abstract":"This article develops an approach to discovery that is grounded in regulatory theory and administrative subpoena power. The conventional judicial and scholarly view about discovery is that it promotes fair and accurate outcomes and nudges the parties towards settlement. While commonly held, however, this belief is increasingly outdated and suffers from limitations. Among them, it has generated endless controversy about the problem of discovery costs. Indeed, a growing chorus of scholars and courts have offered an avalanche of reforms, from cost shifting and bespoke discovery contracts to outright elimination. Recently, Judge Thomas Hardiman quipped that if he had absolute power he would abolish discovery for cases involving less than $500,000. These debates, however, are at a standstill and existing scholarship offers incomplete treatment of discovery theory that might move debates forward. \u0000 \u0000The core insight of the project is that in the private enforcement context — where Congress deliberately employs private litigants as the main method of statutory enforcement — there is a surprisingly strong case that our current discovery system should be understood in part as serving regulatory goals analogous to administrative subpoena power. That is, discovery here can be seen as an extension of the subpoena power that agencies like the SEC, FTC, and EPA possess and is the lynchpin of a system that depends on private litigants to enforce our most important statutes. By forcing parties to disclose large amounts of information, discovery deters harm and, most importantly, shapes industry-wide practices and the primary behavior of regulated entities. This approach has a vast array of implications for the scope of discovery as well as the debate over costs. Scholars and courts should thus grapple with the consequences of what I call “regulatory discovery” for the entire legal system.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132935063","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}
In the current day and age, numerous business transactions today have complex sub-transactions and multiple parties involved. It is no longer sufficient or sustainable to resolve disputes through an adjudicatory platform. With the changing nature of businesses and technology, realisation of rights of individuals, and trans-national expansions — there is a pressing need to consider alternate avenues of dispute resolution. While ADR mechanisms like arbitration, negotiation, and mediation certain may be suitable, new avenues are necessarily required as well. One such platform is the ODR Pathway, or online dispute resolution, and while it’s incorporation has several benefits, it mandates better techno-legal development — particularly in the Indian framework.
{"title":"Section 89 of the CPC: ADR and Business Disputes.","authors":"M. Balaji","doi":"10.2139/ssrn.3402315","DOIUrl":"https://doi.org/10.2139/ssrn.3402315","url":null,"abstract":"In the current day and age, numerous business transactions today have complex sub-transactions and multiple parties involved. It is no longer sufficient or sustainable to resolve disputes through an adjudicatory platform. With the changing nature of businesses and technology, realisation of rights of individuals, and trans-national expansions — there is a pressing need to consider alternate avenues of dispute resolution. While ADR mechanisms like arbitration, negotiation, and mediation certain may be suitable, new avenues are necessarily required as well. One such platform is the ODR Pathway, or online dispute resolution, and while it’s incorporation has several benefits, it mandates better techno-legal development — particularly in the Indian framework.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124068893","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}
One of the long-standing maxims of equity is that “he who comes into equity must come with clean hands.” It is closely related to the maxim that “he who seeks equity must do equity.” These equitable principles are “an historical reflection of the fact that courts of equity began as courts of conscience.” In this country and throughout the common law world, unclean hands has tradition- ally been a defense to equitable claims, but not to legal claims. Yet in the case below the Federal Circuit applied the equitable defense of unclean hands to a legal claim for damages for patent infringement. The Federal Circuit repeatedly relied on precedents of this Court that characterize unclean hands as an equitable defense that constrains a court of equity. The Federal Circuit provided no support whatsoever for applying the equitable defense of unclean hands to a legal claim for damages, especially when that equitable defense would displace the verdict of a jury.
{"title":"Brief for Samuel L. Bray as Amicus Curiae Supporting Petitioners, Merck & Co. v. Gilead Sciences, Inc.","authors":"Samuel L. Bray","doi":"10.2139/SSRN.3272600","DOIUrl":"https://doi.org/10.2139/SSRN.3272600","url":null,"abstract":"One of the long-standing maxims of equity is that “he who comes into equity must come with clean hands.” It is closely related to the maxim that “he who seeks equity must do equity.” These equitable principles are “an historical reflection of the fact that courts of equity began as courts of conscience.” In this country and throughout the common law world, unclean hands has tradition- ally been a defense to equitable claims, but not to legal claims. \u0000Yet in the case below the Federal Circuit applied the equitable defense of unclean hands to a legal claim for damages for patent infringement. The Federal Circuit repeatedly relied on precedents of this Court that characterize unclean hands as an equitable defense that constrains a court of equity. The Federal Circuit provided no support whatsoever for applying the equitable defense of unclean hands to a legal claim for damages, especially when that equitable defense would displace the verdict of a jury.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"1 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":"130222843","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}
Two parties with opposed interests invest in acquiring evidence which they may only partially disclose. The decision maker then adjudicates. This set-up is compared with one permitting cross-examination of the other party's report. Now the decision maker can better assess whether a report was deceitful through withholding of evidence. Nevertheless, decision-making need not be improved. The parties invest less in gathering evidence because they are less able to success fully manipulate information and because cross-examination is a substitute in potentially counte-ring the other party. From the decision maker’s standpoint, there is too much cross-examination at the expense of too little direct evidence.
{"title":"Adversarial Persuasion with Cross-Examination","authors":"Claude Fluet, Thomas Lanziyz","doi":"10.2139/ssrn.3211337","DOIUrl":"https://doi.org/10.2139/ssrn.3211337","url":null,"abstract":"Two parties with opposed interests invest in acquiring evidence which they may only partially disclose. The decision maker then adjudicates. This set-up is compared with one permitting cross-examination of the other party's report. Now the decision maker can better assess whether a report was deceitful through withholding of evidence. Nevertheless, decision-making need not be improved. The parties invest less in gathering evidence because they are less able to success fully manipulate information and because cross-examination is a substitute in potentially counte-ring the other party. From the decision maker’s standpoint, there is too much cross-examination at the expense of too little direct evidence.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132374438","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}
How would the Fair Calculations in Civil Damages Act of 2016 (the “Act”) impact economic damages calculations related to the retirement process? The Act covers discrimination based on race, ethnicity, gender, religion, or actual or perceived sexual orientation. This paper focuses on gender discrimination and explores how imposing gender-neutral worklife and earnings tables, per the Act, would impact earnings and pension calculations in cases involving economic damages. We compare damages calculations under three scenarios: 1) a gender-specific approach, 2) a gender-neutral approach (per the Act), and 3) a gender-specific approach that takes into account the unexplained portion of the male-female earnings gap. The latter approach serves as a “free of bias” benchmark under the assumption that the unexplained portion of the gender wage gap is due entirely to discrimination. Generally speaking, we find that the Act’s broad-brush attempt to correct for possible gender discrimination would introduce more distortions than it would resolve, and likely exacerbate the degree of discrimination in economic damages calculations. A more effective approach to address the possibility of gender discrimination is to allow forensic economists to take gender into account (or not) on a case-by-case basis.
{"title":"Retirement-Related Economic Damages Calculations and the Fair Calculations in Civil Damages Act of 2016","authors":"K. Cahill","doi":"10.2139/ssrn.3068862","DOIUrl":"https://doi.org/10.2139/ssrn.3068862","url":null,"abstract":"How would the Fair Calculations in Civil Damages Act of 2016 (the “Act”) impact economic damages calculations related to the retirement process? The Act covers discrimination based on race, ethnicity, gender, religion, or actual or perceived sexual orientation. This paper focuses on gender discrimination and explores how imposing gender-neutral worklife and earnings tables, per the Act, would impact earnings and pension calculations in cases involving economic damages. \u0000We compare damages calculations under three scenarios: \u00001) a gender-specific approach, \u00002) a gender-neutral approach (per the Act), and \u00003) a gender-specific approach that takes into account the unexplained portion of the male-female earnings gap. \u0000The latter approach serves as a “free of bias” benchmark under the assumption that the unexplained portion of the gender wage gap is due entirely to discrimination. Generally speaking, we find that the Act’s broad-brush attempt to correct for possible gender discrimination would introduce more distortions than it would resolve, and likely exacerbate the degree of discrimination in economic damages calculations. A more effective approach to address the possibility of gender discrimination is to allow forensic economists to take gender into account (or not) on a case-by-case basis.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"25 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":"128308034","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}
Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three condemned it. This paper defends the majority's approach against the minority's criticisms but argues that refinements should be made to it in order to address the uncertainty that may arise from its application.
很少有一个法律领域像非法辩护那样受到不确定性和矛盾的困扰，也很少有司法意见像最高法院在Patel v Mirza一案中的裁决那样存在如此严重的分歧，其中九名法官审查了非法辩护的正确方法问题。其中6人支持“一系列因素”方法，3人谴责。本文为多数人的方法辩护，反对少数人的批评，但认为应该对其进行改进，以解决其应用可能产生的不确定性。
{"title":"Ex Turpi Causa: Reformation Not Revolution","authors":"Ernest Lim","doi":"10.1111/1468-2230.12293","DOIUrl":"https://doi.org/10.1111/1468-2230.12293","url":null,"abstract":"Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three condemned it. This paper defends the majority's approach against the minority's criticisms but argues that refinements should be made to it in order to address the uncertainty that may arise from its application.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133327510","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}
In many settings, there are preliminary or interim decision points at which legal cases may be terminated: e.g., motions to dismiss and for summary judgment in U.S. civil litigation, grand jury decisions in criminal cases, and agencies’ screening and other exercises of discretion in pursuing investigations. This article analyzes how the decision whether to continue versus terminate should optimally be made when (A) proceeding to the next stage generates further information but at a cost to both the defendant and the government and (B) the prospect of going forward, and ultimately imposing sanctions, deters harmful acts and also chills desirable behavior. This subject involves a mechanism design analogue to the standard value of information problem, one that proves to be qualitatively different and notably more complex. Numerous factors enter into the optimal decision rule – some expected, some subtle, and some counterintuitive. The optimal rule for initial or intermediate stages is also qualitatively different from that for assigning liability at the final stage of adjudication.
{"title":"Optimal Multistage Adjudication","authors":"L. Kaplow","doi":"10.2139/ssrn.2955292","DOIUrl":"https://doi.org/10.2139/ssrn.2955292","url":null,"abstract":"In many settings, there are preliminary or interim decision points at which legal cases may be terminated: e.g., motions to dismiss and for summary judgment in U.S. civil litigation, grand jury decisions in criminal cases, and agencies’ screening and other exercises of discretion in pursuing investigations. This article analyzes how the decision whether to continue versus terminate should optimally be made when (A) proceeding to the next stage generates further information but at a cost to both the defendant and the government and (B) the prospect of going forward, and ultimately imposing sanctions, deters harmful acts and also chills desirable behavior. This subject involves a mechanism design analogue to the standard value of information problem, one that proves to be qualitatively different and notably more complex. Numerous factors enter into the optimal decision rule – some expected, some subtle, and some counterintuitive. The optimal rule for initial or intermediate stages is also qualitatively different from that for assigning liability at the final stage of adjudication.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116121999","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}
This Article examines some of the consequences of asymmetric transaction costs in multidistrict litigation, or MDL. Using principles from legal ethics, economics, and accounting, we show how the structure of MDL affects attorneys’ incentives to recruit plaintiffs and screen cases to form mass litigation. The low marginal costs required to file credible-seeming complaints and the need for global peace in many-on-one settlement create a perfect storm for mass-produced nuisance litigation. Separating quality claims from frivolous suits in complex litigation entails significant costs, rendering much of MDL practice an “imitation game” in which vast resources are spent screening cases that would not have been filed outside MDL. This gamesmanship tests ethical responsibilities of plaintiffs’ attorneys, impairs efficient financial reporting, and strains scarce judicial resources. Building on recent rulings by frustrated courts in drug and device litigation and the proposed allegations verification rules of the Fairness in Class Action Litigation Act of 2017, we show how changes in MDL management can put teeth into ethical rules, decreasing the challenges inherent in MDL while preserving the scale economies offered to litigants.
{"title":"The Imitation Game: Structural Asymmetry in Multidistrict Litigation","authors":"Jeff Lingwall, Isaac Ison, Christopher A. Wray","doi":"10.2139/ssrn.2929604","DOIUrl":"https://doi.org/10.2139/ssrn.2929604","url":null,"abstract":"This Article examines some of the consequences of asymmetric transaction costs in multidistrict litigation, or MDL. Using principles from legal ethics, economics, and accounting, we show how the structure of MDL affects attorneys’ incentives to recruit plaintiffs and screen cases to form mass litigation. The low marginal costs required to file credible-seeming complaints and the need for global peace in many-on-one settlement create a perfect storm for mass-produced nuisance litigation. Separating quality claims from frivolous suits in complex litigation entails significant costs, rendering much of MDL practice an “imitation game” in which vast resources are spent screening cases that would not have been filed outside MDL. This gamesmanship tests ethical responsibilities of plaintiffs’ attorneys, impairs efficient financial reporting, and strains scarce judicial resources. Building on recent rulings by frustrated courts in drug and device litigation and the proposed allegations verification rules of the Fairness in Class Action Litigation Act of 2017, we show how changes in MDL management can put teeth into ethical rules, decreasing the challenges inherent in MDL while preserving the scale economies offered to litigants.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129028972","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}
State punitive damages reforms have altered how courts award punitive damages. We model the decision to award punitive damages as a two-step process involving the decision to award any punitive damages and the decision of what amount to award. Using samples of trial court verdicts from the Civil Justice Survey of State Courts, we find that punitive damages caps reduce the amount of damages awarded but do not affect whether they are initially awarded. Additionally, we find that maintaining lower evidentiary standards increases both the probability that punitive damages are awarded and the size of those awards.
{"title":"The Punitive Damages Calculus: The Differential Incidence of State Punitive Damages Reforms","authors":"Benjamin J. McMichael, W. Viscusi","doi":"10.2139/ssrn.2878056","DOIUrl":"https://doi.org/10.2139/ssrn.2878056","url":null,"abstract":"State punitive damages reforms have altered how courts award punitive damages. We model the decision to award punitive damages as a two-step process involving the decision to award any punitive damages and the decision of what amount to award. Using samples of trial court verdicts from the Civil Justice Survey of State Courts, we find that punitive damages caps reduce the amount of damages awarded but do not affect whether they are initially awarded. Additionally, we find that maintaining lower evidentiary standards increases both the probability that punitive damages are awarded and the size of those awards.","PeriodicalId":344388,"journal":{"name":"Law & Society: Civil Procedure eJournal","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127591004","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}
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