Thursday, September 20, 2012
In a survey last month of 1,020 randomly selected adults, DRI-The Voice of the Defense Bar, found that 41% of the respondents were not confident about the fairness of civil courts. A majority of respondents also believed that class actions improved corporate responsibility (but also that plaintiffs' attorneys were unfairly enriched as a result). Most would rather have a jury decide their civil case than a judge, while admitting that if called as a juror, they would probably have some bias.
The full survey is available here.
Hat tip: Blog of the Legal Times.
Professor Harlan Cohen (Georgia) has posted on SSRN a draft of his article, International Law’s Erie Moment, which will be published in the Michigan Journal of International Law. Here’s the abstract:
Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.
Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the social norms of specialized business communities, and constitutional separation-of-powers, along with traditional customary international law, this paper demonstrates that the conflict between these two visions is much deeper than previously assumed. What emerges from these literatures are two radically different models of lawmaking, “negotiated law” and “adjudicated law,” that look different, act differently, rely on different sources of authority and legitimacy, and are to some extent in conflict with one another. Contrary to conventional wisdom, gap-filling by states and gap-filling by courts are not interchangeable.
The unrecognized differences between these two competing models of modern international law lie at the heart of longstanding doctrinal tensions over the nature/sources of customary international law and provide unseen inspiration for the brewing conflicts between courts and states for interpretative supremacy. International law has essentially reached its Erie moment. Only by recognizing the true nature of the conflict, only by recognizing the very different sources of judicial and state authority, only by forcing courts and states to justify their claims to interpretive authority, can we begin to resolve the tensions between these two models and discern the proper roles of courts and states on a modern international law.
Professors Emanuela Carbonara (University of Bologna – Economics) and Francesco Parisi (Minnesota) have posted on SSRN a draft of their paper, Rent-Seeking and Litigation: The Hidden Virtues of the Loser-Pays Rule. Here’s the abstract:
In the past couple of decades, scholars have predominantly employed rent-seeking models to analyze litigation problems. In this paper, we build on the existing literature to show how alternative fee-shifting arrangements (i.e., the American rule and modified English rule) affect parties' litigation expenditures and their decisions to litigate. Contrary to the prevailing opinion, we discover some interrelated advantages of the English rule over the American rule, including the reduction of litigation rates and reduction of expected litigation expenditures. Our results unveil a hidden virtue of the English rule, showing that an increase in fee-shifting may have the effect of reducing total litigation costs and lead to a desirable sorting of socially valuable litigation.
Wednesday, September 19, 2012
Jason Solomon (William & Mary) has posted The Political Puzzle of the Civil Jury to SSRN.
At the root of many contemporary debates over the civil justice or tort system — debates over punitive damages, preemption, and tort reform more broadly — are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.
The debate over the jury — in both the academic literature and the public domain — tends to focus on how good or bad it is as an adjudicative institution. But its justification has often been based on its value as a political institution.
In this Article, I look at the theory, concepts, and empirical evidence behind four principal justifications for the civil jury as a political institution: (1) acting as a check on government and corporate power, (2) injecting community norms into the legal system, (3) providing legitimacy for the civil justice system, and (4) fostering political and civic engagement among citizens.
I tentatively conclude that the benefits of the civil jury as a political institution are overstated and provide suggestions for improving the functioning of the jury as a political institution and for further empirical research.
Professors Allan Ides & Simona Grossi (Loyola Los Angeles) have posted on SSRN a draft of their essay, The Purposeful Availment Trap. Here’s the abstract:
“The Purposeful Availment Trap” represents a very careful and powerful synthesis of years of studies on the theme of personal jurisdiction. In the essay we demonstrate how the Supreme Court’s current struggles on the theme of personal jurisdiction are the result of the purposeful availment “trap” that the Supreme Court has itself created. By interpreting its own interpretations, the Supreme Court got lost in dogma and dicta that make its opinions hard to reconcile with the fundamental principles of due process as articulated in International Shoe. This essay also highly benefits from a dialogue between the civil law and common law world, that we both respectively represent.