Conference Proceeding

The Roles of Litigation

Stephen B. Burbank
With all the attention in the media and in our legislatures, state and federal, to the supposed costs of civil litigation, it is important periodically to remind ourselves of its potential benefits. Moreover, as the Articles presented in this paper suggest, whether the question is costs or benefits, the responsible course is to seek data in preference to anecdotes and to recognize that data require sober interpretation (for which additional…
Conference Proceeding

Beware of Numbers (and Unsupported Claims of Judicial Bias)

Harry T. Edwards and Linda Elliott
In a recent set of articles, Professor Kevin Clermont and Professor Theodore Eisenberg advance the claim that federal appellate judges harbor an unprincipled bias against plaintiff/appellants. The line of reasoning that the authors follow to reach this conclusion is, in our view, quite extraordinary. They first point to data that they claim show that defendants are more likely than plaintiffs to secure reversals in appeals from judgments and verdicts in…
Conference Proceeding

Seven Dogged Myths Concerning Contingency Fees

Herbert M. Kritzer
One of the hallmarks of litigation in the United States us what we call the supposed litigiousness of the American populace, the contingency fee is a frequent target of so-capped tort reform who seek to reduce both the exposure to lawsuits and the amounts paid out in damages. Proponents of so-called reform have propounded a variety of criticisms of contingency fees, along the way creating a variety of myths about…
Conference Proceeding

Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts

Burt Neuborne
Aided by diplomatic initiative by Germany and the United States, any by the vigorous support of many political figures and community organizations, Holocaust-related litigation in American courts against Swiss, German, Austrian, and French corporations over the past six years has resulted in the assemblage of a vast pool of assets value din excess of $8 billion for distribution to Holocaust victims around the world. This article addresses the status of…
Conference Proceeding

Human Rights and Civil Litigation in United States Courts: The Holocaust-Era Cases

Samuel P. Baumgartner
Human rights are a serious matter. Unfortunately, in spite of half a century of improving the civil rights of individuals through treaties and customary international law, and despite increasing attention to those rights by both governments and scholars of international law and international relations, much remains to be done to prevent and punish even the most egregious violations of human dignity. Professor Neuborne’s Article and the extensive briefs to which…
Conference Proceeding

Leaving Money on the Table: Do Institutional Investors Fail to File Claims in Securities Class Actions?

James D. Cox and Randall S. Thomas
Commencing two decades ago, and continuing today, the institutional investor is the most significant focus in reform efforts for securities markets and the American corporation. Whether the question is the type of disclosures that must be made in connection with a public offering, the scope of nonpublic offerings, or making the corporation more responsive to owners, the focus is on the significant trading and ownership interest of institutional investors. As…
Conference Proceeding

Who Cares?

A. C. Pritchard
Jim Cox and Randall Thomas have identified an interesting phenomenon in their contribution to this symposium: institutional investors seem to be systematically “leaving money on the table” in securities fraud class actions. For someone who approaches legal questions from an economic perspective, the initial response to this claim is disbelief. As the joke goes, economists do not bend over to pick up twenty-dollar bills on the street. The economist knows…
Conference Proceeding

The Questionable Case for Using Auctions to Select Lead Counsel

Lucian Arye Bebchuk
This Article analyzes the shortcomings of using auctions for selecting lead counsel in class action cases. In contrast to what proponents of auctions suggest, the outcome of an auction is likely to divergeconsiderably from what an informed principal would have chosen. In particular, auctions push the percentage of recovery paid to counsel to thelowest level at which law firms would be willing to take the case. Because of the need…
Conference Proceeding

Reform Through Rulemaking?

Richard L. Marcus
During what has been called the “Golden Age of Rulemaking,” giants trod the soil of rulemaking. Drawing from the legacy of Jeremy Bentham, David Dudley Field, and Roscoe Pound, a small band of drafters created the Federal Rules of Civil Procedure in the late 1930s and changed the American procedural landscape. Their reforms included completing Field’s effort to bury technical pleading requirements and adopting a revolutionary set of discovery provisions.…

Disposing of Leaks and Spills: Passive Disposal of Hazardous Wastes Under CERCLA

Khara Coleman