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This article discusses the issue of abortion in the context of the dispute between progressive and neoconservative political forces in Brazil. The article analyses ADPF 442, a legal instrument known as a Motion of Noncompliance with a Fundamental Precept, which was lodged with the Supreme Court as part of a feminist litigation strategy in the country. The motion calls for the Supreme Court to decide on the constitutionality of the decriminalisation of abortion within the first 12 weeks of gestation. Methodologically, the analysis combines a literature review with participant observation and corpus linguistics analysis. ADPF 442 is considered a key event in the use of judicialisation to voice demands for women’s rights in current-day Brazil, and this work examines the testimonies as representative of the discourse and strategies at play in the broader field of abortion and its major actors, both for and against its decriminalisation.

Scholars and State counsels have often pointed out the fact that incidental proceedings could be abused, especially when they serve as dilatory mechanisms. While the International Court of Justice has never followed up on such claims, the recent interest in the concept of abuse of process may bring this issue back into focus. The purpose of the present article is to examine whether the notion of abuse of process could actually be applied in such cases, at a time when many types of conduct seem to be loosely labelled as abusive. It highlights the difficulties to reach such a conclusion as well as the necessity for clarification from the Court on what may constitute an abuse of process.

This article is innovative in providing a Blueprint for bringing the first international multi-party climate change case. The Blueprint allows for AOSIS member states to bring a number of group claims against a Respondent Pool made up of the world’s leading greenhouse gas emitters, before a variety of international bodies, on a variety of legal bases. International litigation presents substantial jurisdictional barriers, not least in regard to climate change litigation. It is these barriers that necessitate the group litigation strategy advocated for here. Specifically, the article envisages proceedings before the ICJ, ITLOS, and UNCLOS arbitral tribunals. The legal bases that the Blueprint requires are inventoried, however the focus is on the jurisdictional issues of the bodies. The practicalities involved in AOSIS bringing group cases before each body are explored and solutions for overcoming the jurisdictional barriers of each are offered. Ultimately, the article shows that the jurisdictional barriers are far from insurmountable, with the Blueprint allowing for all AOSIS member states to be involved in proceedings, before at least one body, against at least forty-eight respondents, including the US, China, and the EU.

Effective advocacy depends critically on the ability of attorneys to formulate, analyze, and compare rival courses of action. Whereas attorneys have been doing these things for centuries using little more than their gut instincts and experiences, sophisticated decision aids are now available that can improve the way attorneys assess the value of their cases and the strategic decisions that they make. These aids are proving valuable in medicine and business, but they have not impacted legal practice. This Article seeks to correct this oversight by showing how easy-to-use graphical models provide guidance for strategic legal decisions. Beginning with a paradigmatic example of a plain- tiff who must choose between proceeding to trial or settling out of court, the Article shows how decision aids handle the uncertainties and interdependencies that arise when real-world considerations are introduced. In particular, the Article makes the case that influence diagrams, a relative newcomer in the field of decision analysis, should be the decision aid of choice in complex litigation matters.

Summary Arbitration is a form of conflict resolution that was popular in commercial disputes in medieval times. Its informal nature and ability to mediate the shortcomings of the formal courts have made it the supreme example of merchants solving their own disputes. However, there has been relatively little inquiry into its actual practice. This article investigates the functions and practice of arbitration in medieval Bruges, where arbitration was frequently used as a form of conflict resolution. This was not because merchants preferred extra-judicial proceedings, but because arbitration was a necessary procedure to deal with the shortcomings of the judicial framework of the aldermen of Bruges. Arbitration was exercised as a specific consequence of the context in which Bruges found itself in the second half of the fifteenth century. This context, however, also undermined the procedure. The ambivalent attitude of the Bruges aldermen towards arbitration and its impossibility to appeal allowed some undertaking merchants to use the procedure to their own benefit, and not necessarily to the benefit of commerce.

The discretionary damage of mental suffering in fatal car accident cases in Taiwan is subjective, uncertain, and unpredictable, thus, plaintiffs, defendants, and their lawyers find it difficult to judge whether spending much of their money and time on the lawsuit is worthwhile and which legal factors judges will consider important and dominant when they are assessing the mental suffering damages. To address these problems, we propose k-nearest neighbor, classification and regression trees, and random forests as learning algorithms for regression to build optimal predictive models. In addition, we reveal the importance ranking of legal factors by permutation feature importance. The experimental results show that the random forest model outperformed the other models and achieved good performance, and “the mental suffering damages that plaintiff claims” and “the age of the victim” play important roles in assessments of mental suffering damages in fatal car accident cases in Taiwan. Therefore, litigants and their lawyers can predict the discretionary damages of mental suffering in advance and wisely decide whether they should litigate or not, and then they can focus on the crucial legal factors and develop the best litigation strategy.

This article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first, the negligent defendant is the likely cause of the plaintiff's injury, whereas according to the second, she is not. The article explains why causal underdetermination has escaped the radar of tort scholars and is perceived by courts as lack of causation. It demonstrates that the current practice in cases of causal underdetermination might lead to erroneous decisions, absolving negligent defendants of tort liability even when the evidence suggests that they are in fact the likely cause of the plaintiff's injury. This, in turn, the article asserts, may not only lead to underdeterrence among potential defendants, but also encourage manipulative litigation strategy to escape liability in retrospect. The article then proposes solutions that contend with causal underdetermination and resolve the difficulties that the current practice entails.

Patent litigation has attracted scholarly attention to reconcile multiple views for new research. Accordingly, this paper addresses patent litigation strategy and its effect on the firm. Based on 106 papers and articles, six books, the author's logic and practice impressions, it first defines patent litigation strategy and differentiates similar concepts. Second, based on the process, the author fine‐tunes patent litigation strategy into three tactics: threat, filing and verdict. Then, she categorizes and examines the impact of patent litigation on market value, monetary gain/loss and strategic collaboration. The findings show that the effect on the market value is more complex and ambiguous than anticipated, and sometimes contradictory. The analysis shows the consistency of monetary effect in practice, that firms tend to have higher monetary gains from private settlement than from legal awards. It also demonstrates that existing studies lag behind reality in investigating the detailed role of patent litigation on strategic collaboration from partnership (e.g. licensing and strategic alliance) to takeover (i.e. merger and acquisition). Finally, the author reflects on the findings, and maps out critical paths toward new research. This process also reveals that stakeholders, industrial settings and country environments moderate the studied relationship. This paper contributes to knowledge and practice: appreciates the interdisciplinary endeavors to draw the findings; categorizes patent litigation and its effect; and critiques prior studies on the relationship to integrate knowledge for future research.

Costa Rica and Colombia, two of the earliest Latin American countries to protect many LGBT rights, attempted to amplify those rights and litigate same-sex marriage (SSM) in mid-2000s; however, these attempts sparked a major anti-LGBT backlash by religious and conservative organizations. Yet a decade later, Colombia legalized SSM while Costa Rica still lacks the right to SSM. Using a most-similar systems comparative case study, this study engages the judicial politics literature to explain this divergent outcome. It details how courts, while staying receptive to many individual LGBT rights claims, deferred SSM legalization to popularly elected branches. In spite of the lack of legislative success in both countries, in Colombia a new litigation strategy harnessed that deference to craft a litigated route to legalized SSM. In Costa Rica, the courts’ lack of conditions or deadlines has left SSM foundering in the congress.

DOI: 10.1590/2179-8966/2019/39502 Resumo Os amici curiae sao parte cada vez mais comum da estrategia de litigio de organizacoes perante o Supremo Tribunal Federal (STF) muito em razao de serem depositarios de promessas de pluralizacao e de incremento da qualidade das decisoes tribunal feitas pelo proprio tribunal. Para saber qual papel os amici curiae podem desempenhar em um litigio estrategico no STF, este artigo analisa as capacidades institucionais conferidas aos amici curiae pela jurisprudencia, analisadas e classificadas em condicoes de acessibilidade, admissibilidade e influencia. Palavras-chave: amicus curiae; STF; litigio estrategico; influencia; admissibilidade Abstract The amici curiae promise to diversify and improve the quality of decisions of the Supreme Federal Court and are increasingly part of the litigation strategy of organizations before the Supreme Court (STF). In order to know what role amici curiae can play in strategic litigation in the Supreme Court, this article analyzes the institutional capacities conferred to the amicus curiae briefs, that is, if they offer accessibility, admissibility and influence to fully meet its duties. Keywords: amicus curiae; STF; strategic litigation; influence; admissibility.

Historically-rooted patterns of racial segregation in housing remain a significant contributor to racial inequities in health, intergenerational wealth, and life chances more generally. This article uncovers a powerful but long-forgotten model for rebellious lawyers in the struggle for fair housing. I draw this model from archival research into the innovative early NAACP lawyers who litigated racially restrictive covenants from the 1910s to the 1940s. Facing a hostile judiciary, and with little legal precedent on their side, these lawyers turned their attention to a fundamental conceptual obstacle to their cause: what they termed “property in a sociological vacuum.” In this view, property ownership as an entirely private manner unrelated to the public interest and social context more generally. Under the vacuum logic, segregationist lawyers had convinced the courts that supporting racial covenants was a racially innocent defense of white homeowners’ property rights. The early NAACP lawyers countered this vacuum understanding of property by radically departing from the conventional norms of legal advocacy. In their briefs and oral arguments, they refuted the vacuum view on theoretical grounds and backed up their position with social-scientific findings that mapped out the pervasive use and devastating impacts of racial covenants in communities of color. Courts had never before been presented with such an enormous trove of social scientific research in civil rights litigation. This strategy reached full expression in Shelley v. Kraemer (1948), the land US Supreme Court decision that rendered racially restrictive covenants unenforceable. Shelley is a well-studied staple of the 1L curriculum, but legal history has largely ignored the decades of legal efforts that made it possible. This article traces that history in detail. I show how NAACP affiliated lawyers identified the vacuum view of property as a central target in their litigation strategy and then worked with academics and other social movement allies to develop a vast body of empirical research. This strategy enabled these lawyers to fill the sociological vacuum around property. In this way, they forced the judiciary to see that racial covenants were more than purely private instruments of individual landowners but rather had formed a pervasive land policy of racial apartheid, slum conditions, and excluding people of color from homeownership. I conclude by arguing that this “lost scientific model” should be emulated by today’s fair housing lawyers, who continue to encounter the vacuum view of property as a core theoretical obstacle to racial integration and inclusion.

We propose a model of patent litigation where a potential competitor - the Entrant - can challenge a patent with and without entering the market before a final court decision. We study the settings (the Financing Space) where market entrance is used to finance patent litigation, i.e. where the Entrant would not have challenged the patent's validity, had she not been able to enter the market. This space increases in the Entrant's litigation costs, but decreases in the Patent Holder's litigation costs and as the court becomes better at calculating the size of damages to the Patent Holder. When the value of future access to the market increases, the size of the Financing Space decreases. And, with some constraints, the Financing Space increases with the likelihood of the patent being valid. Finally, market entrance may also finance the Patent Holder's litigation costs, such that he litigates in settings where he would not have, if the Entrant had not entered. As such, entrance can be a double edged sword.Our insights have implications for how attorneys should advise their clients on strategy and how policy makers should amend the patent litigation system to fulfill their goals.

Most Americans and American businesses purchase liability insurance to protect against financial loss should they ever be sued. In furnishing this protection, liability insurers contractually promise policyholders that they will defend them against lawsuits seeking covered damages and indemnify them for such damages up to the policy limits. As important as the insurer’s promise of indemnification is to an insured, the insurer’s agreement to defend the insured in litigation is an equally essential aspect of the liability insurance bargain. An insurer must decide whether it has a duty to defend its insured at the outset of a case. There are two approaches to determining an insurer’s duty to defend. First, there is the eight corners rule, under which the factual allegations in the plaintiff’s complaint or petition are compared with the policy, and the insurer owes a defense only if those allegations potentially implicate the insurer’s duty to indemnify the insured. Second, there is the extrinsic evidence approach. Courts employing an extrinsic evidence approach hold that an insurer must look beyond the pleadings and consider any facts brought to its attention or any facts that it reasonably could discover at the time suit was filed in deciding whether it has a duty to defend. Liability insurance policies typically provide that the insurer will pay the cost of the insured’s defense in addition to the policy’s liability limits. This is a potentially significant expense for the insurer because defense costs may, and often do, exceed any settlement or judgment ultimately paid. Given the expense associated with providing a defense, it is not surprising that an insurer may want to disclaim its duty to defend based on extrinsic evidence that establishes that it will have no duty to indemnify the insured. Of course, an insurer generally cannot decline to defend its insured if, in making that determination, it is limited to the facts alleged in the plaintiff’s petition or complaint; after all, even in extrinsic evidence states, it usually is the allegations in that pleading that triggered the insurer’s duty to defend in the first place. Thus, insurers frequently test their ability to rely on extrinsic evidence to disclaim their duty to defend when the plaintiff’s complaint or petition alleges facts that trigger the duty. In other words, if an insurer must, in many states, consider extrinsic evidence in accepting its duty to defend, can it also rely on extrinsic evidence to deny or exit a defense? The answer generally is no; the use of extrinsic evidence is rarely a two-way street. Although the general rule holds that an insurer may not rely on extrinsic evidence to refuse to defend an insured, some courts that adhere to the general rule occasionally recognize exceptions. Plus, there is a contrary minority rule. It is therefore fair to ask whether an insurer should be allowed to rely on extrinsic evidence to disclaim or extinguish its duty to defend when the plaintiff’s complaint or petition alleges facts that implicate coverage, and, if so, under what circumstances? This question is timely first because of two 2020 Texas Supreme Court decisions addressing it and offering different answers based on the facts presented: Richards v. State Farm Lloyds and Loya Insurance Co. v. Avalos. Second, as Richards and Loya demonstrate, insurers’ use of extrinsic evidence to excuse their defense obligations is an ongoing litigation strategy. That is not to say that the strategy is good or bad, but it is to say that the extrinsic evidence issue will continue to surface in key cases in various jurisdictions. Third, while insurers’ use of extrinsic evidence to defeat the duty to defend is hotly contested by policyholders, courts that have considered the issue over the years have rarely discussed it in meaningful fashion in their opinions. The resulting lack of guidance hampers courts either confronting the issue for the first time or entertaining reconsideration of prior holdings. This Article provides that guidance.

Protecting privileged communications and data from disclosure is paramount for legal teams. Legal advice, such as attorney-client communications or litigation strategy are typically exempt from disclosure in litigations or regulatory events and are vital to the attorney-client relationship. To protect this information from disclosure, companies and outside counsel often review vast amounts of documents to determine those that contain privileged material. This process is extremely costly and time consuming. As data volumes increase, legal counsel normally employs methods to reduce the number of documents requiring review while balancing the need to ensure the protection of privileged information. Keyword searching is relied upon as a method to target privileged information and reduce document review populations. Keyword searches are effective at casting a wide net but often return overly inclusive results - most of which do not contain privileged information. To overcome the weaknesses of keyword searching, legal teams increasingly are using machine learning techniques to target privileged information. In these studies, classic text classification techniques are applied to build classification models to identify privileged documents. In this paper, the authors propose a different method by applying machine learning / convolutional neural network techniques (CNN) to identify privileged documents. Our proposed method combines keyword searching with CNN. For each keyword term, a CNN model is created using the context of the occurrences of the keyword. In addition, a method was proposed to select reliable privileged (positive) training keyword occurrences from labeled positive training documents. Extensive experiments were conducted, and the results show that the proposed methods can significantly reduce false positives while still capturing most of the true positives., Comment: 2020 IEEE International Conference on Big Data (Big Data)

Hazing has been a persistent issue over the generations and across organization-type. For many, the default solution is zero-tolerance. Zero-tolerance was originally developed as a U.S. Customs Service Policy in 1986. Attorney Peter Nunez first issued zero-tolerance policies for federal and state agencies to seize boats and vehicles transporting illegal drugs. By 1988, zero-tolerance policies were applied to a broad range of issues and conduct. Zero-tolerance is generally intended to express the unacceptance of targeted behaviors that, if committed, will be severely punished; this is no matter how major or minor. In this article, I explore the persistence of zero-tolerance policies as a remedial measure for hazing (Part I), why it is a failed approach (Part II), and how institutions and organizations could shift to a more effective approach (Part III).

It is exceedingly rare for one person to change the world almost single-handedly, but Justice Ruth Bader Ginsburg was one of those people. Even before her distinguished judicial career, RBG was a trailblazing advocate for women’s rights during the 1970s. She persuaded the Supreme Court that gender discrimination violates the Equal Protection Clause of the U.S. Constitution, winning five of the six cases she argued there. To lead this historic effort, RBG served as general counsel of the ACLU and as co-founder and the first director of its Women’s Rights Project from 1972 until she became a judge in 1980. How can we evaluate RBG’s performance in this role? If she had led a for-profit business, we could track its profits. But the test of a nonprofit’s success is not how much money it makes, but how much good it does in the world. To operationalize this somewhat abstract test, I have urged nonprofits to assess their work with three questions, which this Article applies to RBG’s impact litigation: First, how important was the problem RBG was trying to solve? Second, how effective was her response? Third, what were RBG’s comparative advantages in this work? To begin with the first question, RBG targeted an enormously significant problem. In the 1970s, gender discrimination had deep roots in U.S. law. Constantly encountering discrimination in her own career, RBG was emphatic that people should be judged by their ability, not their gender. Yet to advance this meritocratic vision, she had to change the way male judges thought about these issues. Second, how effective was RBG in pursuing this goal? She delivered extraordinary results, crafting a litigation strategy with three key strengths. First, instead of striving to accomplish all her goals in one case, RBG proceeded in stages, so that each new case built on the last one. Like a chess grandmaster, she thought several moves ahead. Second, RBG had a gift for seeing cases through the eyes of (skeptical) male judges, so she chose cases carefully, hunting for compelling facts. Third, ever mindful of her audience, she framed legal issues in ways that resonated with male judges. Along with targeting an important problem in an effective way, a nonprofit also should have comparative advantages in doing its work. This brings us to the third question: What were RBG’s unique strengths in leading the ACLU Women’s Rights Project? She had the courage to take controversial positions and the legal firepower to prevail. As both a successful professional and a devoted spouse and parent, RBG modeled her nonprofit’s mission in her own life. Yet although these issues were deeply personal for her, she rarely showed impatience or frustration. By temperament, RBG was unfailingly polite and collegial. She also knew that venting could set back her cause, and her goal was to do good, not to feel good. By combining this steely self-control with strategic thinking, determination, and eloquence, RBG was stunningly successful. In analyzing RBG’s record as a nonprofit leader, this Article draws not only on the historical record and RBG’s writings, but also on my own experiences with her. I served as her law clerk during the October Term 1994, her second year on the Supreme Court. Over the next twenty-five years, RBG was a generous mentor and a dear friend. We had countless conversations about her impact litigation.

Empirical evidence demonstrates that racial and ethnic minorities tend to earn less in tips than their white coworkers and racial and ethnic minorities and women tend to earn less in commissions than their white, male coworkers. Moreover, a growing body of research suggests that neither tipping nor commissions are always a business necessity. However, neither courts nor litigants have recognized a disparate impact cause of action under Title VII of the Civil Rights Act of 1964 alleging that customer preference-based pay schemes like tipping and commissions cause employees to earn less because of their race or sex and cannot be justified as job related and consistent with business necessity. This Article articulates a novel litigation strategy for combating pay disparities wrought by tipping and commissions. First, it explains why the overwhelming majority of tipping and commission schemes that cause race- or sex-based pay disparities evidence a prima facie case of disparate impact under Title VII notwithstanding the commonly-held beliefs that Wal-Mart Stores, Inc. v. Dukes forecloses disparate impact review of policies that afford discretion over pay and cases like AFSCME v. Washington foreclose disparate impact scrutiny of policies that set pay based on multiple, complex factors (e.g., market forces, customer preferences). Second, because of a circuit split in defining the business necessity defense, this Article argues that employers in some jurisdictions would be unable to carry their burden of proving that tipping and commission schemes are a literal business necessity, as arguably required under Title VII by the Civil Rights Act of 1991. Third, this Article contends that Title VII’s defenses to disparate impact caused by merit systems or production-based earnings systems do not apply to tipping and commission schemes as they exist today because such schemes do not materially reflect employees’ merit or measure earnings based on the production of tangible things. Finally, this Article presents original, non-litigation alternatives to attacking such pay disparities. Most notably, it reconceptualizes Ricci v. DeStefano — an opinion regarded in much scholarship as a material roadblock to substantive workplace equality — as offering employers the option of ensuring substantive pay equality by offsetting race- or sex-based disparities in tips or commissions via disparate treatment (i.e., affirmative action). For instance, this Article contends that employers do not violate Title VII by offering pay or preferential treatment to racial and ethnic minorities who earn less in tips than their white coworkers because of race (e.g., more-desirable shifts or customers) as a “Ricci offset” to cure the disparate impact that the employer caused in the first place. For generations, employers have maintained tipping and commissions as facially-neutral, customer preference-based pay schemes which afford employees formal pay equality, but fail to guarantee pay untethered to customers’ racist and sexist preferences. This Article provides a litigation road-map and non-litigation alternatives to employees subjugated and discriminated against by such pay schemes. In doing so, it lays the groundwork for those employees to secure not just facially-neutral pay policies, but substantive pay equality.

Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms. Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform. Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down.

Mass torts create a unique scale of harm and liabilities. Corporate tortfeasors are desperate to settle claims but condition settlement upon resolution of substantially all claims at a known price – commonly referred to as a global settlement. Without this, corporate tortfeasors are willing to continue with protracted and fragmented litigation across jurisdictions. Global settlements can be elusive in these cases. Mass torts are oftentimes characterized by non-homogenous victim groups that include both current victims and unknown, future victims – individuals whose harm has not yet manifested and may not do so for years. Despite this incongruence, the claims of these future victims must be aggregated as part of any global settlement. This is the tragedy of the mass tort anticommons: without unanimity, victim groups are unable to access settlement resources in a timely or meaningful way, but actual coordination across the group can be impossible. Current resolution structures have proven ill-equipped to efficiently and equitably address the novel challenges posed by mass torts. Many cases cannot satisfy Rule 23’s requirements for class action certification. Multidistrict litigation is the most frequently invoked resolution structure, but the MDL process is distorted. The process was initially designed for one district court to streamline pretrial procedures before remanding cases for adjudication. Instead, MDL courts have turned into captive settlement negotiations. In response, a new strategy for resolving modern mass torts has emerged. Corporate tortfeasors – including Purdue Pharma, Boy Scouts of America, and USA Gymnastics – have started filing for bankruptcy. These mass restructurings automatically halt the affected MDL cases and transfer proceedings to a bankruptcy court – a process I describe as bankruptcy preemption. Unfortunately, bankruptcy preemption replaces one deficient structure with another. Mass restructuring debtors are exploiting statutory gaps in the Bankruptcy Code in order to bind victims through an unpredictable, ad hoc structure. The new bargain creates myriad risks, including insolvent settlement trusts and disparate treatment across victim classes. This Article is the first to attempt a reconceptualization of how modern mass torts should be resolved and delivers an unprecedented normative construct focused on addressing anticommons dynamics through statutory amendments to the Bankruptcy Code. These changes, coupled with an evolved perspective on fundamental structural anomalies, are designed to improve predictability, efficiency, and victim recoveries. More broadly, this Article attempts to animate scholarly debate of this new, non-class aggregate litigation strategy that will reshape the field.

Analisi del Caso Cappato dal punto di vista della crisi del Parlamento e dell'adozione della c. d. litigation strategy.

The sale of unproven stem cell interventions (SCIs) by commercial entities has proliferated in highly developed countries, most notably in the USA. Yet, there have been few criminal prosecutions and regulatory enforcement actions against providers who have violated laws and best practice standards due to the lack of resources and legal ambiguity. While the stem cell research community has invested much in protecting patients and preventing the growth of this industry, some patients are seeking remedies under civil law to hold stem cell clinics responsible for fraudulent practices. Several patients have filed lawsuits against providers demanding compensation for physical injuries caused by unproven treatments and financial losses due to fraud and false advertising. Lawsuits can be used as a tool not only to compensate plaintiffs but also to achieve positive public health and policy outcomes. In this paper, we explore the value of a public health litigation strategy as a countermeasure against the exploitative practices of the unproven SCI industry by analyzing stem cell lawsuits and comparing them with other major public health litigation efforts. We argue that stem cell lawsuits complement other approaches to reining in unsafe practices. In particular, stem cell lawsuits could intensify publicity and raise awareness of the harms of unproven treatments, set legal precedent, reshape the media narrative from one focused on the right to try or practice to one highlighting the need for adequate safety and efficacy standards, and encourage authorities to turn their attention to policy reform and enforcement.

This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.

The rising number of amicus curiae briefs filed in the U.S. Supreme Court has attracted increased scholarly attention to the effect of interest group advocacy on the Court. The substantial and growing participation by amici suggests that interest groups believe these activities are influential, and empirical evidence suggests they might be right. Earlier research shows that Supreme Court justices rely so heavily on information in amicus briefs, that they often signal their need for these documents to interest groups (Hansford and Johnson 2014). Moreover, previous works have found that amicus briefs do not just influence the justices' final decisions on the merits of a case (Box-Steffensmeier et al. 2013; Collins et al. 2013, 2015), they also affect the justices' decision to hear a case in the first place, namely to "grant certiorari" to a legal case coming from a lower court1 (Caldeira and Wright 1988; Owens and Black 2011). In addition, other studies suggest that amicus briefs may have a significant effect on the likelihood of dissenting opinions (Collins 2008a). Finally, the influence of amicus briefs appears to extend to all justices across the ideological spectrum (Collins 2008b). Nevertheless, the nature of their influence remains the topic of much disagreement among scholars. Why are amicus curiae briefs so influential? Do all interest groups stand the same chance of influencing all of the justices, or are some groups better positioned to influence certain justices in certain ways?We address these questions by extending Baily, Kamoie, and Maltzman's (2005) signaling theory beyond the Solicitor General to all interest groups filing amicus curie briefs in the U.S. Supreme Court. Specifically, we argue that amicus participation functions as a heuristic signal: Every amici sends a signal to members of the court, which includes heuristics, or "mental shortcuts," based on the filer's ideological preferences in relation to the justice's preferences and the brief's ideological position on the case. These heuristic signals help the justices deal with the high number of amicus briefs by allowing them to quickly and easily identify credible information.Consequently, an interest group's ability to influence a justice depends on the group's ideology, the justice's ideology, and the nature of the ideological signal sent by the group. Justices are particularly inclined to trust interest groups that share their ideological preferences and interest groups advocating outcomes contrary to their traditional ideological preferences. Amicus briefs should be especially likely to influence justices when both conditions are present; i.e., a justice and brief filer share ideological preferences and the brief filer sends an unexpected ideological signal. As a result, influential legal advocacy only partially depends on an interest group's inherent features (i.e., its ideology); amicus influence also depends on a specific litigation strategy (sending unexpected signals) and the nature of the signal receivers (the justice's ideology).The U.S. Supreme Court offers an ideal venue to test our signaling theory of interest group influence for several reasons. First, the highly formalized and routinized process of amicus filing renders lobbying activities easy to observe and measure. Second, brief filers must address all nine justices on the Court. This rule alleviates concerns about endogeneity and strategic targeting. Finally, the unique institutional environment of the Court minimizes the possibility that alternative elements drive the effectiveness of lobbying; life tenure eliminates electoral aspirations, which may be the driving force behind influence in other domains (Mayhew 1974).Consistent with signaling theory, we find that an interest group's influence on a particular justice depends on the ideological proximity between the interest group and the justice: liberal (conservative) groups tend to have greater influence on liberal (conservative) justices. …

The paper describes a framework for forecasting narrative trends (text-based description of cost items) in legal spending. This is based on the application of topic discovery and time series forecasting. The algorithm presented in this paper discovers a number of abstract topics in a corpus based on clusters of words that are found in each line item spending document, along with the respective frequency of those words. Specifically, Latent Semantic Analysis transforms a sequence of cost descriptions into a set of numerical Topic-based univariate time series. The resulting set of time series is used to forecast future trends using the ARIMA (AutoRegressive Integrated Moving Average) approach. This type of semantic forecasting of spending trends can facilitate the discovery of counterparty intent(s) and proactively adjust the litigation strategy (prove/disapprove a claim, counterclaim, etc.).

“Transnational advocacy networks” as defined by Keck and Sikkink help diffuse international human rights norms and thereby change the behavior of states. Abolition of the death penalty and protection of LGBT rights are in a process of norm emergence, and global networks of non-governmental organizations and activists are creating alliances across borders and partnering with organizations on the ground to diffuse these norms. One type of transnational advocacy network involves lawyers in transnational litigation networks, who seek to bring strategic human rights cases with the purpose of building a global body of transnational jurisprudence. Organizations such as the London-based Death Penalty Project and Human Dignity Trust have embraced a transnational litigation strategy to ensure state compliance and generate an international consensus to abolish the mandatory death penalty and anti-sodomy laws in the Commonwealth.

British colonial penal codes contained prohibitions on consensual same-sex intercourse. These laws are increasingly recognized as constraints on the human rights and freedoms of lesbian, gay, bisexual, and transgender (LGBT) persons, contributing to an environment of insecurity and having perverse public health consequences. LGBT transnational advocacy networks in the Commonwealth have used litigation as one strategy to initiate a process of law reform. However, London-based NGOs encounter resistance, most notably by opponents of LGBT rights who are increasingly organized in their own networks, often funded by the American evangelical movement and other religious interests. Most grassroots LGBT organizations have been open to litigation as a possible tool for change. Undoubtedly, some activists have called into question this litigation as less of a priority than other LGBT rights issues, and certainly a litigation strategy may not always be practical. Nonetheless, “sharing” of jurisprudence on anti-sodomy laws among courts in the Commonwealth has helped to generate momentum toward legal protections for LGBT persons, as the successful recent decisions in Belize and India illustrate.

According to the Commissioner of Inland Revenue, the aim of the tax avoidance scheme in Cullen Group Ltd v Commissioner of Inland Revenue [2019] NZHC 404 was to reduce the taxpayer company’s liability to tax by $51.5 million. She assessed it to tax on that basis; and Palmer J, in the High Court at Auckland, upheld the assessment. The Commissioner is to be congratulated on her victory, and one hesitates to criticise a litigation strategy that has proved successful. The aim of this brief article, however, is to suggest that the aim of the scheme was actually to reduce the taxpayer’s liability to tax not by $51.5 million but by about $103 million; and that she should have assessed it to tax on that basis. It is perhaps too late for the Commissioner to advance in this case the argument that leads to this conclusion; but the issue is worth addressing because it has arisen in other cases in the past, it will almost certainly arise again in the future, and there is every reason to suppose that significant public revenues are consequently at risk.

This essay is a response to commentary by Amnon Reichman and Mark Graber on The Taming of Free Speech for a symposium in the Jerusalem Review of Legal Studies. It addresses their observations that the interwar civil liberties campaign was shaped by events outside the circles of lawyers and activists I explore in the book, and it takes up their invitations to link the history of free speech more explicitly to developments in the wider field of civil liberties advocacy. It pursues their questions by reference to two historical developments that were omitted, for reasons of space and thematic coherence, from my final manuscript: the Sacco and Vanzetti affair, and the ACLU’s debate over its defense of Nazi speech. Both stories link the ACLU’s First Amendment strategy to developments abroad. Both also highlight the very real alternatives to the modern First Amendment that advocates proposed and defended. These controversies and others cast doubt on an overly deterministic account of the ascendance in the United States of the modern First Amendment, if not the survival of judicial review. By extension, they also illuminate connections between the ACLU’s litigation strategy and the recent weaponization of the First Amendment, as well as the usefulness of discarded alternatives in our own historical moment.

Dockets contain a wealth of information for planning a litigation strategy, but the information is locked up in semi-structured text. Manually deriving the outcomes for each party (e.g., settlement, verdict) would be very labor intensive. Having such information available for every past court case, however, would be very useful for developing a strategy because it potentially reveals tendencies and trends of judges and courts and the opposing counsel. We used Natural Language Processing (NLP) techniques and deep learning methods allowing us to scale the automatic analysis of millions of US federal court dockets. The automatically extracted information is fed into a Litigation Analytics tool that is used by lawyers to plan how they approach concrete litigations.

Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school remedies under federal law. While this litigation exposes the depth of student need in high-poverty communities, the strategy is legally flawed and risks under-explored collateral consequences. Although advocates are correct that many of these children warrant individual remedies, using disability law to achieve system-wide educational reform is both unwise and unfeasible. First, such claims falsely assume that schools must identify all students who have any type of disability, when in fact schools’ substantive duties are limited to those students whose disabilities require special education or related services to ensure meaningful access to education. Second, disability law mandates services that meet individual students’ needs. Claims seeking school-wide programmatic changes for all students are simply not legally required. Finally, classifying entire communities as disabled is over-inclusive and has the potential to stigmatize, albeit unfairly, all impoverished minority children as impaired. This Article proposes a more nuanced litigation strategy and a broader legislative agenda. First, advocates should use schools’ obligations to individual ACEs-impacted students to force schools to adopt more effective early identification processes. Schools should not assume all children have a disability, but identify those who do earlier. Second, federal and state legislation should provide targeted grants to schools that serve a high percentage of students impacted by ACEs. This approach would address unmet needs of students while guarding against over-inclusion.

In a patent infringement suit, the alleged infringer wins with a ruling of either patent invalidity or non-infringement. It is ambiguous which of these outcomes is preferred by the alleged infringer. Invalidity may increase current-period competition, but simultaneously removes constraints to successful future innovation. The choice of whether to vigorously pursue patent invalidation may also affect incentives to innovate. We adapt the "innovative industries'' model of Segal and Whinston (2007) to study patent litigation strategy and rates of innovation. We show that a legal regime where infringement is considered first (and validity second) maximizes incentives to innovate. But if the future blocking effect of patent validity is strong, the alleged infringer may prefer to litigate validity first to maximize the likelihood of invalidity. This litigation strategy effect may reduce levels of innovation. Antitrust policy should seek to attenuate this effect, and may do so by reducing the advantage to incumbency.

In 2018, thirty one years after the equality rights guarantee in the Canadian Charter of Rights and Freedoms took effect, women won their first Supreme Court of Canada appeal based on sex discrimination under section 15 of the Charter. Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la sante des services sociaux struck down provisions of Quebec’s Pay Equity Act that denied women remedies for sex discrimination in pay that was identified through pay equity audits. Since 1987, the SCC has recognized that systemic discrimination infuses the systems, institutions and relationships of power through which our society is organized. Yet, only rarely do truly systemic cases of discrimination come before the Court and when they do the Court has struggled to apply an appropriately systemic analysis. Alliance marks a meaningful breakthrough. This paper examines how Alliance and its companion case, Centrale des syndicats du Quebec v Quebec (Attorney General), represent a strong step forward in protecting against systemic discrimination. It analyzes jurisprudential advances on substantive equality, the role of section 15(2) of the Charter, and bringing a gender lens to the section 1 analysis. Examining the dissenting reasons, the paper also analyzes how the two cases simultaneously highlight the unresolved fractures at the foundation of equality rights jurisprudence that threaten its stability going forward. Finally it reviews a federal legislative initiative and a provincial litigation strategy – both on pay equity – that followed in the immediate aftermath of Alliance and CSQ to highlight the fragility of section 15’s protection in the face of political resistance to substantive equality. It asks whether, in a period of intensifying political polarization, governments have stopped engaging in the “Charter dialogue” when it comes to equality rights.

投稿論文, The local remedies rule is an important principle of customary international law requiring the exhaustion of local remedies as a prerequisite for submitting international claims. Despite a well-established rule, its scope of application remains unclear. This is especially questioned in practice for circumstances where local remedies do not need to be exhausted. Against this backdrop, this article examines the exceptions to the local remedies rule by analyzing doctrinal debates and judicial practices with a special focus on the Draft Articles on Diplomatic Protection codified by the International Law Commission. Theoretically, the exceptions are divided into two groups : first,procedural exceptions of the rule based on unavailability of the local remedies caused by intrinsic or extrinsic reasons; and second, a substantial exception deriving from the conceptual difference between 'direct injury'and 'indirect injury.' Claimant States strategically invoke the substantial exception at the ICJ in order to bring international claims before exhausting the local remedies for sufferings of their nationals, notably after Avena judgment. By updating the argument of Professor Kanae Taijyudo in 1964,this article suggests that certain exceptions are disputable even in treaty-based dispute settlement mechanisms, notably in investor-state arbitrations.

Background In an increasing number of lawsuits doctors lose, despite providing preoperative patient education, because of failure to prove informed consent. We analyzed judicial precedents associated with insufficient informed consent to identify judicial factors and trends related to aesthetic surgery medical litigation. Methods We collected data from civil trials between 1995 and 2015 that were related to aesthetic surgery and resulted in findings of insufficient informed consent. Based on these data, we analyzed the lawsuits, including the distribution of surgeries, dissatisfactions, litigation expenses, and relationship to informed consent. Results Cases were found involving the following types of surgery: facial rejuvenation (38 cases), facial contouring surgery (27 cases), mammoplasty (16 cases), blepharoplasty (29 cases), rhinoplasty (21 cases), body-contouring surgery (15 cases), and breast reconstruction (2 cases). Common reasons for postoperative dissatisfaction were deformities (22%), scars (17%), asymmetry (14%), and infections (6%). Most of the malpractice lawsuits occurred in Seoul (population 10 million people; 54% of total plastic surgeons) and in primary-level local clinics (113 cases, 82.5%). In cases in which only invalid informed consent was recognized, the average amount of consolation money was KRW 9,107,143 (USD 8438). In cases in which both violation of non-malfeasance and invalid informed consent were recognized, the average amount of consolation money was KRW 12,741,857 (USD 11,806), corresponding to 38.6% of the amount of the judgment. Conclusions Surgeons should pay special attention to obtaining informed consent, because it is a double-edged sword; it has clinical purposes for doctors and patients but may also be a litigation strategy for lawyers.

Offensive patent litigation is an increasingly important part of the firm's corporate strategy to protect the values of its intellectual property rights. Building on the value creation and transaction costs perspectives, this study explores how the preemptive power is most important to a firm's offensive patent litigation strategy through two key mechanisms. By applying an experimental design method to develop scenarios for top executives of publicly-traded companies and small- and medium-sized enterprises, the results show that both the patents' value creation based on their transaction costs and market positions influence the propensity of preemptive power separately through perceived benefits and organizational slack, and accordingly affect the offensive patent litigation strategy. These findings not only broaden the resource-based, transaction cost and value creation explanations of offensive patent litigation decisions, but also facilitate the formulation of the codes of conduct for the managerial capability in the contexts of offensive patent litigation.

In 2013, Gibraltar was accepted as a full member of UEFA after long years of struggle. The accession period was marked by a strong Spanish veto that successfully led to the rejection of the application in 2007. This article tries to answer how Spain lost its influence on UEFA decision-making. Referring to the lobbying literature on influence mechanisms, I argue that Spain’s main strategy of withdrawal threat was not credible anymore after 2007. It was a period when La Liga was losing its competitiveness, UEFA was increasing the amount of monetary distributions to football clubs, and Spain was suffering from an economic crisis. As a result, a threat of withdrawal became less influential than Gibraltar’s repeated litigation strategy and Gibraltar became UEFA’s 54th member.