January 21, 2011
Goff and Bales on Twombly, Iqbal, and Affirmative Defenses
Melanie Goff and Richard Bales (both of Northern Kentucky) have posted to SSRN their article, A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses, which is forthcoming in the American Journal of Trial Advocacy, Vol. 34, No. 3, 2011. Here's the abstract:
The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.
Eisenberg and Heise on the Judge-Jury Difference in Punitive Damages Awards
Theodore Eisenberg and Michael Heise (both of Cornell) have posted to SSRN their article, Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court? Here's the abstract:
We analyze thousands of trials from a substantial fraction of the nation’s most populous counties as well as a smaller sample of less populous counties. Evidence from four major Civil Justice Survey data sets spanning more than a decade establishes that: (1) compensatory awards are strongly associated with punitive awards and (2) the punitive-compensatory relation has not materially changed over time. But (3) 2005 data suggest, for the first time, systematic differences between judges and juries in the punitive-compensatory relation. Despite claims that the Supreme Court’s State Farm decision changed the punitive-compensatory relation, we present evidence that the 2005 shift is not attributable to the State Farm case or to other possibly relevant likely factors such as the relative flow of personal injury cases to judges and juries, inclusion of 110 small counties in the 2005 data, or changes in the 2005 data coding. The judge-jury difference more likely turns on unobserved factors driving the selection of cases for adjudication before judges and jurors.
January 20, 2011
Brickman on Contingency Fees
Lester Brickman (Cardozo) has posted to SSRN his article, Unmasking the Powerful Force that Has Mis-Shaped the American Civil Justice System, which appears in the Global Competition Law Review, Vol. 4, No. 3, 2010. Here's the abstract:
The contingency fee, once largely a uniquely American institution, is beginning to gain serious consideration in Europe and elsewhere. It is essential that those considering adopting some form of the contingency fee to finance civil litigation have a proper understanding of the impact of the contingency fee on the U.S. civil justice system. That understanding, however, appears woefully lacking. In Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge University Press 2011), I discuss the underappreciated and indeed, often unrealized costs of reliance on contingency fees to finance access to the tort system. In this essay, I reprise some of the impacts policymakers should take into account in determining whether the anticipated benefits of the American contingency fee system outweigh the considerable costs.
Craig, Green, Klein, and Sanders on Toxic and Environmental Torts
West is publishing a new casebook, Toxic and Environmental Torts: Cases and Materials, by Robin K. Craig (Florida State), Michael D. Green (Wake Forest), Andrew Klein (Indiana-Indianapolis), and Joseph Sanders (Houston).
Actuarial Litigation: How Statistics Can Help Resolve Big Cases
I'm organizing a conference with the University of Connecticut Insurance Law Center called "Actuarial Litigation: How Statistics Can Help Resolve Big Cases" to be held on Friday, April 15, 2011 at UConn.
The participants are an amazing group and there should be a lot of chances for synergy between experts in statistics, experts in law and everyone in between. Here is the list:
Kenneth R. Feinberg, Feinberg Rozen LLP - who needs no introduction
Robert G. Bone, University of TexasLaw School
Edward K. Cheng, Vanderbilt Law School
Howard Erichson, Fordham Law School
James Grenier, Harvard Law School
Deborah Hensler, Stanford Law School
Samuel Issacharoff, New York University Law School
Joseph B. Kadane, Carnegie Mellon University, Department of Statistics
Francis McGovern, Duke Law School
Adam Scales, Washington & Lee School of Law
Alex Stein, Benjamin N. Cardozo School of Law
January 19, 2011
Freedman on Claims Facilties as a Work Around the Ethics Rules
Monroe Freedman has a very interesting post on Legal Ethics Forum about the BP Oil Spill Claims Facility and ethics: Claims Facilities and the Nullification of Ethical Duties.
January 17, 2011
I hope are readers are having a good MLK day and that your employer gave you the day off in observance!
Benyamin Applebaum of the NY Times has an article on litigation funding in torts - the first story there is of a Vioxx plaintiff. See the article here.
For a very insightful take on litigation funding, in particular arguing that it is a good way to disgorge the appropriate amount from the defendant rather than permitting the defendant to get a discount because of plaintiffs economic situation, see Steven Gillers post at the Legal Ethics forum here.
Readers interested in this topic might also want to take a look at Maya Steinitz, Whose Claim is this Anyway? Third Part Litigation Funding, available on SSRN.