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The article examines the success of pro se representation in U.S. Supreme Court cases. It analyzes relevant cases statistically and determines the percentage of pro se litigants who were successful and the percentage of pro se litigants who were attorneys before comparing the results for pro se attorneys and pro se non-attorneys. It explores the Supreme Court's shifting attitude toward non-lawyers who argue in the Court.

Standing is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is "whether the plaintiff is the proper party" to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the "v." It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is "built" on the "single basic idea" of "the separation of powers. " When a government official is sued, a particular structural problem arises: If a court entertains the suit, it will be put in the position of supervising another branch of the government. And without some sort of injury requirement, the political branches might be subjected to continuous judicial oversight. As a historical matter, Article III standing doctrine developed primarily in this context. But the structural concern prompted by that context is absent when one private party sues another private party. There is no prospect that such a suit will yield a remedy against a government official. The suit may, of course, raise other constitutional problems, but those other problems should not be shoehorned into standing--an avowedly transsubstantive jurisdictional doctrine that derives from Article III. This theoretical claim is bolstered by a striking fact: Until 2020, the Supreme Court had never dismissed a case for lack of Article III standing when the defendant was a private party on the ground that the injury alleged was insufficient. And, as it followed this pattern, the Court was notably more generous in recognizing standing in cases against private parties than in cases against governmental parties. But the Court recently broke this pattern. In two closely divided opinions, the Court held--for the first time--that private parties could not sue other private parties because the injuries alleged were inadequate. Congress's attempt to authorize those suits thus violated Article III. This paper critiques those decisions, situates them in the broader arc of the development of standing law, and surveys the prospects for doctrinal reconstruction. To do so, it proposes a novel framework to return the law of standing to its historical and conceptual moorings. Under that framework, standing doctrine should not limit Congress's (or the states') power to authorize lawsuits between private parties in federal court. [ABSTRACT FROM AUTHOR]

The importance of Delaware's Section 220 in shareholder derivative litigation has dramatically increased over the past few decades, and for good reason: Section 220 can help sort out meritorious derivative claims from frivolous ones, thus generating successful claims that serve corporate governance objectives by holding managers accountable. But perverse incentives--deriving both from the preclusion issues of multijurisdictional shareholder litigation and from the incentive to draw out Section 220 litigation with overly aggressive defensive and offensive tactics--threaten the utility of Section 220. Without recalibration of these incentives, concerns that Section 220 has created surrogate proceedings where Delaware intended summary proceedings are only exacerbated. Accordingly, I propose that Delaware consider two legislative changes to recalibrate Section 220. First, because plaintiffs engaged in multijurisdictional litigation are incentivized by the threat of preclusion to forego prefiling investigations, I propose a limited fee-shifting provision in Section 220 that would more narrowly target the causes of frivolous litigation without overly deterring litigation. Second, to reduce the intensity and misuse that increasingly characterizes Section 220 proceedings, Section 220 should be streamlined by providing presumptive access to formal board-level materials to plaintiffs that state a proper purpose. Ultimately, the proposals put forth in this Comment provide tailored solutions to the incentive problems facing Section 220, seeking to mitigate the burden on litigants and the courts while maintaining its critical role in shareholder litigation. [ABSTRACT FROM AUTHOR]

The Second Circuit and the Ninth Circuit are currently divided on the issue of how far back a copyright owning plaintiff in a copyright infringement can collect in damages against a continuing infringer. The Second Circuit states that the Copyright Act's three-year statute of limitations and the discovery rule only permit plaintiffs to collect damages three years back from the date they bring their infringement action. However, the Ninth Circuit states that the three-year statute of limitations is only concerned with the timing in which a plaintiff brings her infringement action, and that she can recover all of the damages from the defendant's infringement with no time limit. This circuit split will not only encourage forum shopping in the Ninth Circuit, but it will incentivize infringement in the Second Circuit. Further, the entertainment industry will capitalize on this split until it is resolved. This Note is about the circuit split between the Ninth and Second Circuits as a result of the diametrically opposed rulings in Sohm v. Scholastic and Starz v. MGM respectively, and the effects of these opposing decisions. First, this Note discusses the background of copyright infringement. Venue in federal cases and the concept of forum shopping is also discussed. Next, this Note discusses the Second Circuit's decision in Sohm v. Scholastic and the Ninth Circuit's decision in Starz v. MGM, and this Note contends that the Ninth Circuit's viewpoint is correct. Next, this Note predicts that the opposing rulings will encourage forum shopping, incentivize copyright infringement in the second circuit, and that the entertainment industry will capitalize on these opposing rulings until the split is resolved. Finally, this Note suggests that the only realistic solutions to resolving this split are that either the Supreme Court will have to directly rule on the issue of the length of time in that a plaintiff can recover damages for a defendant's continuing copyright infringement, or Congress will need to amend the Copyright Act to confirm the amount of damages plaintiffs can recover in continuing infringement actions. [ABSTRACT FROM AUTHOR]

This study analyses an important but unstudied site of legal-lay communication: the website discourse of a small claims court. I describe six interactional problems that litigants in small claims court face that the official court metadiscourse, i.e., the court website, does not ably prepare participants for. Problems include: 1) addressees vary enormously in assumed education levels, 2) facework challenges misidentify focal parties, 3) the speech genre is more Q and A than a presentation, 4) limited attention is given to distinguishing fairness from legality, 5) the downside of extensive metadiscourse is not recognised and 6) the variety among judges is given little attention. These problems, I show, are shaped by the existence of two partly contradictory ideals embedded in the practice of small claims interaction, as well as the metadiscourse regarding what counts as good communication. One ideal of small claims court is to see it as a place where disputes can be addressed fairly by an impartial arbitrator. The other ideal is to see small claims as a place where legal rules are applied to disputes to yield a legal solution. The article concludes with suggestions about how to manage the competing ideals. [ABSTRACT FROM AUTHOR]

Although some tend to believe that amici curiae appear only to pontificate on policy ramifications of given decisions, the amicus apparatus has been used to argue facts and even participate in discovery and trials. Such amicus curiae have been decried by courts as litigating amici, legal mutants, and amici petitor--friends of plaintiffs. Despite such judicial hostility and the lack of a rule permitting amicus participation in federal district courts, interested organizations and people continue to appear before the courts. Scholarly research, in turn, is focused on normalizing amicus participation, proposing various amendments to the Federal Rules of Civil Procedure to govern amicus briefs. Far less attention has been given, however, to the parties' response to factual allegations in amicus briefs. How can a party prevent an amicus from alleging facts or submitting documents with its briefs? If unsuccessful, can a party obtain document discovery from the amicus to disprove its allegations? As this Article shows, there are methods to oppose amicus participation and obtain discovery from domestic amici. The problem arises when foreign amici curiae are involved. Such individuals and organizations may be insulated from discovery, allowing them to allege facts and provide prejudicial documents to opposing counsel without opening themselves to discovery. As a result, parties may be unable to fairly present their side of the dispute. The objective of this Article is to address this injustice. The Article proposes that Congress pass a rule or a statute allowing for limited discovery--i.e., authorizing parties to subpoena foreign individuals and corporations to obtain discovery regarding facts alleged in the amicus brief. [ABSTRACT FROM AUTHOR]

The article deals with the use of the concept of a private right of action in the municipal context in the U.S. It explores the creation of third-party private rights of action by cities and the legal limitations that constrain cities to do so. Also discussed are the policy considerations supporting of municipal third-party private rights of action and the benefits of the third-party private right of action including the reduction of costs in the search for plaintiffs.

The article focuses on uses of bellwether trials in multidistrict litigation (MDL) cases, along with issues raised by the practice in U.S. It informs on issues related to conducting the trials, and venue considerations; and trial procedures in MDLs with respect to voluntary and nonbinding parties to the litigation. It also mentions about due process issues raised by the same.

The article presents the discussion on vital importance for all colleges and universities throughout the US. Topics include oldest and one of the largest privately-endowed institutions of higher learning in the US; and application of the Equal Protection Clause to admissions to institutions of higher learning considered previously by this Court.

Courts and other authorities are severely split on the extent of issue preclusion where the prior adjudication rests on multiple independent grounds, and not all those grounds are relevant in the second litigation. The First Restatement of Judgments precludes each ground, while the Second Restatement of Judgments precludes no grounds. This article proposes a novel rule of issue preclusion that modifies the approaches of the First and the Second Restatements in light of the reasons advanced for their approach, which is the practical availability of an appeal in such situations. By addressing the concerns of both the First and Second Restatements, the approach of this article will have the fairest impact on litigants in subsequent cases. [ABSTRACT FROM AUTHOR]

The article discusses the Florida Evidence Code's sequestration rule (the rule) which allows a litigation party to request a court to exclude a witness from a courtroom to prevent the witness from hearing the testimony of other witnesses, and it mentions the 2017 Florida Supreme Court case Florida Industrial Powers Users Group v. Graham which deals with administrative procedure and a settlement agreement. Florida common law and state statutes are examined.

This article is concerned with pointing out and believing that the Criminal Procedure Code of 2004, considering the judgment stage as a main phase of the criminal proceedings under the principles of orality, publicity, immediacy, contradiction and procedural equality, among others, would demonstrate a clearly established delimitation of functions, both for the procedural parties, as well as for the impartial third party, forming a triadic scenario in the judgment. Therefore, beyond the observation, control and direction of the oral judgment, it would be counterproductive to accept some judicial intervention in the probative activity as also prescribed in the said adjective code. The objectives of the study are to identify which procedural and structural principles that govern the oral trial are violated with the powers of intervention of the judge of judgment within the framework of the Code of Criminal Procedure of 2004; analyze the concept and attributions of being the impartial third party in the context of the probationary activity; identify what the theory of the case understands and which procedural subjects have it; and to make the judicial operators aware of what implies a cultural change in the procedural subjects in the face of a contradictory accusatory model. The author emphasizes on the need to have a court with no powers of intervention (super parties), where the judge, as neutral and impartial third party, will appreciate the debate between the prosecutor and the defense lawyer of the accused, and It will have to assess the evidentiary activity received directly on the arguments and evidence presented and examined by the various parties, without supplementing the activity of the parties. This means that the judge, as impartial third party or "arbitrator" between the parties, will reserved his intervention to directly observe, direct and control the debate between these procedural subjects, guaranteeing the fundamental rights of the person. In order to achieve this, awareness must be given to the fact that the theory of the case of procedural parties, in equality of arms, is a strategic plan from beginning to end in the judgment and that the principles that govern this stellar stage are a set of Ideas force of direct and necessary application that will guard the probative activity. [ABSTRACT FROM AUTHOR]

The article discusses the Florida Fourth District Court of Appeal's ruling in the 2016 case Parker v. Parker which deals with determining the proper party to bring a cause of action for the return of assets transferred by the decedent prior to the decedent's death or inter vivos probate-related transfers. The Florida Statutes are addressed, along with the concept of a decedent's estate as a party to a legal action. Different interpretations of the law by Florida's courts are assessed.

During litigation on the international plane, states sometimes will issue assurances either to the other litigant or to the international court directly. This article explores how those assurances interact with applications for provisional measures. The practice of courts varies with regard to how to react to these assurances, though the usual approach is that assurances issued to another state or individual are generally non-binding, while assurances issued to the court directly are binding. At the same time, litigants can apply to the court for provisional measures to prevent actions that would disturb the dispute. When the assurances are considered non-binding, they are treated as questions of fact and can be assessed for credibility and reliability, as a part of the provisional measures analysis. But when the assurances are considered binding, they are treated as questions of law, and the undertaken legal obligation disposes of the request for a provisional measures order. This article will examine the practices of the International Court of Justice and the European Court of Human Rights on this issue, identifying where their practices diverge and converge, and recommending that the dual nature of assurances, as both factual and legal, be considered in assessing their value. [ABSTRACT FROM AUTHOR]

It has been widely believed that who bears the burden of proof significantly affects the incentives of the legal parties. In particular, Hay and Spier (J Legal Stud 26:413-431, 1997) argues that if legal parties have a commonly accessible body of evidence (perfectly correlated pieces of evidence), the party who bears the burden of proof will present the evidence if and only if the evidence supports his position, while the other party (without the burden) will refrain from presenting it regardless of whether the evidence supports his position. In this paper, I claim that the result will be dramatically changed if the pieces of evidence that each party possesses are not perfectly correlated. I show that each party will present the evidence that supports his position whenever available, regardless of the burden of proof assignment. This implies that allocating the burden of proof does not matter in terms of information elicitation. [ABSTRACT FROM AUTHOR]

The article discusses the authors' claim that American courts involved in civil litigation matters between private non-governmental parties should observe a presumption against approving legal settlements that contain prospective injunctive relief, and it mentions how parties to a class action proceeding do not have any incentive to benefit either absent class members of society in general. American public law and constitutional standing requirements are assessed, along with legal remedies.

Priest and Klein (1984) predicted a 50-percent plaintiff winning rate among litigated cases, independent of the decision standard. Lee and Klerman (2015) specify conditions under which this result would be true. Klerman and Lee (2014), however, show that, under plausible circumstances, selection effects are only partial. The present paper strips a complicated problem down to an easily accessible model where the plaintiff winning rate among litigated cases can be calculated explicitly. In the discrete setting of the present paper, the 50-percent winning rate would hold if and only if the defendant's fault were uniformly distributed. [ABSTRACT FROM AUTHOR]

This study examines the role of status differential between the involved parties and amici curiae participation in explaining variation in U.S. Supreme Court criminal justice decisions that favor the government interest over the interest of the other party (1994-2012 terms). The study finds status differential between the involved parties to be a significant predictor of outcome. Repeat player effects were found for special interests that file in support of the government entity (U.S. Solicitor General and Criminal Justice Legal Foundation), but not for special interests who file for the other party (the American Civil Liberties Union and National Association of Criminal Defense Lawyers). The study found that greater levels of aggregate amici curiae participation (all interest group activity) in the direction of the other party significantly reduce the likelihood of a case outcome that favors the government. Implications are discussed. [ABSTRACT FROM AUTHOR]

The article discusses law and economics in relation to the views of several legal scholars such as Guido Calabresi, Ward Farnsworth, and Ronald Coase regarding the absence of post-judgment bargaining in America. Nuisance and Jewish refusal to divorce (get) litigation are addressed, along with the concept of using legal damages in a civil action as leverage and as a basis for a possible transaction between adversarial parties. Liability rules and remedies are also assessed.

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives--both rational and irrational--to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties' incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require the parties to file and live within litigation budgets. These "costs budgets," which are already in use in the United Kingdom, help to ensure that the costs of litigation remain less than the benefits. After describing the workings of a costs-budget system, the Article considers practical, political, and constitutional critiques. None of these concerns is disabling. American rulemakers who are serious about containing the litigation costs should grant courts the power to use costs budgets. [ABSTRACT FROM AUTHOR]

Companies routinely file bankruptcy cases in venues that have no meaningful connection to the company, its operations, or its stakeholders. This practice (1) divorces bankruptcy and venue from their ties to location; (2) disrupts the fundamental balance underlying the Bankruptcy Code by shifting the focus exclusively to the needs of sophisticated parties; and (3) shuts out parties who have a right to participate in bankruptcy proceedings, which contravenes due process and raises fairness concerns. To solve these problems, this Article proposes new procedures that mandate a thorough discussion of venue considerations in bankruptcy cases. By requiring parties to justify their venue choices under tougher standards and holding companies accountable for their venue decisions, the proposal helps ensure that bankruptcy cases are heard in places where key local voices and issues are recognized and addressed. [ABSTRACT FROM AUTHOR]

American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by explicating a reoriented model of party subordinance. Under this theory, parties fall in the lowest tier of the power hierarchy, beneath the law on top and judicial authority in the middle. Party subordinance means that the law--not party agreement--binds the court, and even when parties can lawfully make litigation choices, those choices generally do not bind the court. The upshot is that parties in fact have far less control over their litigation than presently assumed. Party subordinance suggests that the trend toward litigation customization is on shakier footing than presently acknowledged, reorients some key elements of the normative debate surrounding customization, and exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. At its broadest, the theory of party subordinance upends the way the federal litigation system views the hierarchy among parties, courts, and the law. [ABSTRACT FROM AUTHOR]

Contract interpretation remains the most important source of commercial litigation and the most contentious area of contemporary contract doctrine and scholarship. Two polar positions have competed for dominance in contract interpretation. In a textualist regime, generalist courts cannot consider context; in a contextualist regime, they must. Underlying this dispute are contrary assumptions about the prototypical contract each interpretive style addresses. For modern textualists, contracts are bespoke, between legally sophisticated parties who embed as much or as little of the contractual context as they wish in an integrated writing, and prefer to protect their choices against judicial interference by an interpretive regime including parole evidence and plain meaning rules. For contextualists in contrast, contracts are between legally unsophisticated parties in two prototypical settings. The first is the mass market, standardized contract between sophisticated sellers and unsophisticated consumers, who cannot bargain over contractual terms; the second involves commercial parties doing business in a deeply nuanced world where formal and informal understandings mix and the meaning of a particular contract can be illuminated by the parties' course of dealings. For the contextualist, willfully restricting a court's access to information bearing on the parties' real relationship in both cases degrades judicial interpretation. We argue that the narrow focus on which prototype should apply universally has erroneously framed discussion of the parties' choices and led to an inconclusive and limited debate about the role of courts in contract interpretation. The range of options for parties and generalist courts is much more diverse and variegated than the choice between ex ante party autonomy and ex post adjudication. We present a typology of transactional settings -- the design space for contract -- sufficiently rich to capture the breath of current contractual experience but sufficiently parsimonious to clarify the central relationship between the factors that shape the design of any given contract and the role of courts in interpreting it. We show that design and judicial response depends, first, on the level of uncertainty and, second, on the thickness of the market -- whether there are many traders or few engaged in a similar class of transactions. The higher the level of uncertainty, the less workable complete, state-contingent contracts become, and the more parties develop interpretive mechanisms based on rich and regular exchange of information on a project's progress that allows each to gauge the other's capacity to define and produce a product. The greater the number of traders engaged in a transaction, the more likely that the interpretive regime -- terms adapted to current need -- will be provided by a trade association or, given collective action problems, a public regulator. The interplay of uncertainty and scale illuminates new forms of contracting among legally sophisticated parties unanticipated in discussions of textualist prototypes, and recasts the contextualist prototypes as special cases that demand novel institutional responses, including generalist courts sufficiently versed in the parties' practices that they resemble early courts of equity. More generally, our analysis reveals a surprising complementarity between public regulation and common law adjudication in a variety of settings. Contractual interpretation today should attend to today's contracts and courts: Our aim is to escape the stalemate between textualists and contextualists and open the way for doctrine and debate to support the novelty of contemporary contracting practices. [ABSTRACT FROM AUTHOR]

The Ninth Circuit Court of Appeals's recent decision in Washington Environmental Council v. Bellon dealt a heavy blow to the abihty of private parties to establish standing based on climate change-related injuries. Specifically, the decision established a "particularly daunting" bar for such parties to demonstrate the causation prong of traditional Article III standing. First, the Ninth Circuit distinguished the Supreme Court's preeminent climate change decision, Massachusetts v. EPA, on grounds that private parties were not entitled to "special solicitude. " Second, the Ninth Circuit implied that as a result, private parties were not able to demonstrate causation based on a theory of contribution. Third, the Ninth Circuit held that even if private parties were entitled to rely on contribution, they would have to demonstrate a "meaningful contribution" to global greenhouse gas concentrations, which the Ninth Circuit implied was equal to six percent of global carbon dioxide emissions. The collective impact of these interpretations led Circuit Judge Gould, writing in dissent from the Ninth Circuit's order denying rehearing en banc, to conclude that the effect of Washington Environmental Council v. Bellon is to effectively shut the door on the use of citizen suits to address climate change. This Chapter argues that the Ninth Circuit's basis for these three conclusions was unfounded, and therefore concludes that the Ninth Circuit incorrectly analyzed the element of causation. Moving forward, however, this Chapter notes that Washington Environmental Council v. Bellon will pose a difficult barrier for parties of all types to establish causation based on climate change-related injuries. [ABSTRACT FROM AUTHOR]

The article discusses summary judgment standards in America in relation to live parties to actions and the characteristics of judges, focusing on the seventy-fifth anniversary of the U.S. Federal Rules of Civil Procedure. Judicial decisionmaking is addressed, along with the U.S. Supreme Court and genuine issue of material fact determinations. A right to a civil trial is mentioned, along with plaintiffs and the Seventh Amendment to the U.S. Constitution. Civil litigation in the U.S. is examined.

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent "trolls" and BitTorrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation--avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party's inherent ability to spread costs. If so, why is there such resistance to defendant aggregation? Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants' self-interest. This may be true in certain types of cases, particularly where the plaintiff's claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants' defenses would not be viable individually. These latter cases are explained, if at all, by defendants' cognitive limitations. In any event, defendant self-interest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: interdistrict related case coordination. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. court case Charvat v. Mutual First Federal Credit Union, which dealt with the separation of powers under the standing doctrine. Topics include the violation of the U.S. Electronic Funds Transfer Act (ETFA), the precedent set by the U.S. court case Lujan v. Defenders of Wildlife, and the injury-in-fact standing doctrine.

The article discusses behavioral economics, judicial bias, and the potential impact of a preliminary injunction (PI) on the status quo between the parties to a legal case as of March 2014, focusing on U.S. federal circuit courts and a federal PI standard. American Judge Richard Posner and former jurist Michael McConnell are mentioned, along with moral responsibility and U.S. federal decision making. The PI-related case Winter v. Natural Resources Defense Council Inc. is also examined.

The article discusses the use of alternative dispute resolution (ADR) to resolve complex commercial disputes as of 2014, and it mentions the differences between litigation and ADR, as well as the importance of ADR parties' ability to select their own neutral to oversee an ADR proceeding. Autonomy and cost efficiency are addressed, along with an analysis of a neutral's responsibilities. Trustworthiness and the selection of a neutral are examined, along with qualifications and ADR clauses.

The article focuses on the statutory derivative action in Australia under the Commonwealth Corporations Act of 2001. Topics include the calls for reform regarding derivative actions, leave requirements, and how derivative actions can be used as a remedial tool. Information is provided on litigation funding of class action lawsuits.

This Article proposes that parties and arbitrators should use, and courts should enforce, express prearbitration waivers of certain evident partiality challenges as a way to avoid uncertainty and expense caused by widely-acknowledged disarray in the doctrine of evident partiality. Courts considering evident-partiality cases mainly have focused on (and disagreed about) the content of the doctrine and the circumstances in which a party can constructively waive an evident-partiality challenge by failing to object to an arbitrator despite knowing about a particular relationship. Similarly, the academic literature examining evident partiality has focused on the appropriate judicial test for assessing partiality, rules for defining the scope of an arbitrator's duty to disclose, and proposals for reconciling the division in the courts. This Article takes a different approach. It is the first examination of the use of party waivers to cut off judicial evident-partiality challenges and avoid the uncertainties in the doctrine. The solution proposed in this Article is that parties can consensually avoid the current uncertainty over evident- partiality doctrine through express prearbitration agreements to waive certain judicial challenges. This Article explains why using express evident-partiality waivers should be attractive to parties. It also argues that courts should be willing to enforce such waivers under the Federal Arbitration Act. Enforcing them is theoretically consistent with arbitration's fundamental policies of resolving disputes based on the parties' consent and allowing the parties to choose for themselves the most efficient procedures to resolve their dispute. These policies are strongly reinforced by recent Supreme Court opinions in other areas of arbitration law. [ABSTRACT FROM AUTHOR]

The article discusses the relationship between fee shifting and the free market as of November 2013, focusing on legal fees and the economic aspects of weak or meritless lawsuits in places such as Great Britain and the U.S. According to the article, the losing party in a lawsuit in Great Britain is required to pay the legal costs of the winning party. Other topics include corporate defendants in America, heightened pleading standards, and U.S. law reform efforts.

Most of the incomplete contracting literature assumes courts of law perfectly distinguish verifiable from nonverifiable variables and that only claims related to the former can be brought to courts. We consider a more realistic enforcement technology: Parties are able to sign “vague contracts” and, by spending resources on litigation, get the court to hear and rule on cases even if they have bogus grounds and/or the claim is related to nonverifiable variables. We reexamine the results obtained in the literature on contractual solutions to the hold-up problem. In contrast to Che and Hausch (1999 “Cooperative Investment and the Value of Contracting,” 89 American Economic Review 125–47.), we find that a simple contract can be valuable and even the first-best might be achievable in the cooperative investment case. For the case of selfish investment, the efficient result of Edlin and Reichelstein (1996 “Holdups, Standard Breach Remedies, and Optimal Investment,” 86 American Economic Review, 478–501.) does not hold in general if attention is restricted to simple contracts. Our model predicts that, if allowed to do so, the parties will—by choosing the appropriate contract—manipulate the litigation costs and court rulings in opposite directions, depending on the nature of investment. (JEL: D20, D78, K10, K40, L22) [ABSTRACT FROM PUBLISHER]

Preliminary injunctions (PIs) are important in litigation in many settings, including antitrust, copyright, patent, trademark, employment and labor relations, and contracts. The filing of a PI and the court's ruling generate information that can impact settlement. We find that some plaintiffs request a PI to signal bounds on their damages in order to elicit better settlement offers. As a result, the parties are more likely to come to an out-of-court agreement permitting the disputed activity, compared to when a PI is motivated solely by defensive reasons to avert immediate damages during trial. Although the grant of a PI reduces ex post incentives for potential litigants to settle, this is more than offset by an increase in settlement upon a denial. Thus, ex ante, learning leads to more settlement. Nevertheless, the anticipation of learning and increased chances of settlement do not affect the initial filing decision. [ABSTRACT FROM PUBLISHER]

Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially nondiscovery motions, can substantially shape parties’ knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process: including that the filing of a motion significantly speeds case settlement; that granted motions are more immediately critical to settlement timing than motions denied; and that plaintiff victories have a stronger effect than defendant victories. These results provide a uniquely detailed look at the mechanism of compromise via information exchange and motion practice in litigation while simultaneously yielding evidence that this effect goes well beyond the traditionally studied discovery process. (JEL C00, K00, K10, K41). [ABSTRACT FROM PUBLISHER]

Under the Singapore Companies Act, a complainant applying for leave to pursue a derivative action must give fourteen days' notice to the company, but the judge hearing the leave application is by statute granted discretion to excuse non-compliance with the notice requirement. In Fong Wai Lyn Carolyn v Airtrust (Singapore) Pte Ltd, the Singapore High Court attempted to address for the first time the question of when the court would exercise its discretion to excuse. This article critically evaluates the decision on this issue in Airtrust, and offers guidelines synthesised from Commonwealth jurisprudence on how the Singapore courts could exercise their statutory discretion to excuse notice in the future. [ABSTRACT FROM AUTHOR]

The article discusses the Private Securities Litigation Reform Act, passed in 1995 to mitigate the issue of professional shareholder plaintiffs in American litigation. Topics mentioned include the history of attorneys or their relatives and partners acting as plaintiffs, the ethical issues raised in cases in which counsel neglected to disclose the plaintiff's death, and suggestions for disclosure-based methods to reform the situation.

The article discusses several rulings by America's District of Columbia Court of Appeals which consider the burden that a party seeking to vacate an arbitration award must deal with as of 2013, and it provides practical advice for U.S. legal practitioners and arbitrators who are tasked with challenging or defending arbitration awards in litigation matters. The allocation of attorneys' fees are examined in legal cases, as well as mediation/arbitration agreements and fairness.

The article discusses the mutual interests of consumers and manufacturers in America and a call for the U.S. Congress to prohibit private litigants from initiating lawsuits in state courts if the underlying facts supporting the claims rely on product labeling information that is subject to express preemption under the U.S. Federal Food, Drug, and Cosmetic Act (FFDCA) as of June 2013. According to the article, Section 310 of the FFDCA contains a provision limiting who may enforce the act.

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation for trial. In so doing, it frustrates the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties--two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure. Remarkably, Congress adopted the new statutory section despite the absence of any detailed scholarly analysis prior to its enactment regarding these issues, sparse legislative history analyzing perceived problems with the relevant Federal Rules of Civil Procedure, and the lack of any consideration of the new statutory section by the Supreme Court's Advisory Committee on Civil Rules. This Article provides a comprehensive analysis of the reasons for the enactment of the new statutory section, the competing policies animating the Leahy-Smith America Invents Act and the Federal Rules of Civil Procedure, and the appropriate interpretation and application of the new law. Such analyses have, to date, been absent from the legal conversation. [ABSTRACT FROM AUTHOR]

The article discusses attorneys' fees and an individual's right to recover fees for fees based on a contractual prevailing party fee provision in Florida as of April 2013, focusing on the Florida Supreme Court's ruling in the case State Farm Fire & Casualty Co. v. Palma and the Florida Fourth District Court of Appeal case Waverly at Las Olas Condominium Association Inc. v. Waverly Las Olas LLC. Florida's state statute on lawyers' fees is addressed, along with reasonableness and contracts.

In a significant trend, U.S. courts are increasingly rejecting cases involving foreign plaintiffs or foreign conduct. This trend was accelerated by the U.S. Supreme Court's decision in Morrison v. National Australia Bank Ltd., which established that U.S. securities laws cannot be applied extraterritorially. Lower courts have extended the presumption against extraterritoriality to other federal and state statutes. In addition, federal and state courts are turning increasingly to the doctrine of forum non conveniens to dismiss litigation claims brought by foreign plaintiffs. This article addresses (a) how the presumption against extraterritoriality has been applied to federal and state statutory law and how it could be applied to regulations and even common law claims, (b) how the presumption and the doctrine of forum non conveniens have changed the legal landscape for foreign and U.S. plaintiffs who seek to recover in the United States for injuries suffered abroad, and (c) how these judge-made limitations have been impacted by larger trends such as limited U.S. judicial resources. The cases discussed share the concern that U.S. courts not become the forum of choice for foreign plaintiffs seeking redress for injuries suffered abroad. Indeed, for such litigants, the increasingly frequent answer is: you don't have to go home, but you can't stay here. [ABSTRACT FROM AUTHOR]