Archive for March, 2013

March 25, 2013

Zimmerman on Mass Settlement Rivalries

On March 15, 2013, Assistant Professor Adam S. Zimmerman spoke at the University of Cincinnati College of Law’s 26th Annual Corporate Law Symposium. This year’s symposium was entitled Addressing the Challenges of Protecting the Public: Enforcement Practices and Policies in the Post-Financial Crisis Era. You can find out more about the symposium here.

Adam appeared on a panel focusing on the policy implications of public enforcement and presented a paper called Mass Settlement Rivalries. Here is the abstract:

From cases involving securities fraud to Ponzi schemes to consumer scams, private attorneys in class actions and civil bankruptcies increasingly compete with federal prosecutors, agencies, and state attorneys general, for the same funds, from the same defendant, for the same harm, and often, on behalf of the same groups of people.  To some, government attorneys offer less expensive and more accountable representation for victims of widely disbursed harm.  To others, politically insulated private attorneys in class actions and bankruptcies offer more effective representation for parties.  But few have examined the dynamic way public and private settlements impact each other when they are implemented at the same time. 

 This Article argues that dueling public and private settlements offer several potential advantages—including more efficient representation, more oversight, and more complete forms of compensation to different subgroups of victims.  In their current form, however, settlement rivalries fall far short of these goals.  Among other things, rival settlements: (1) waste resources as duplicative actions proceed on separate tracks without coordinated judicial oversight, (2) introduce new uncertainty into litigation financing by unpredictably affecting the number of victims who ultimately participate in a class settlement, and accordingly, the fees that private attorneys recover, and (3) confuse unrepresented victims with separate, rival settlement offers. 

 Accordingly, this Article recommends three reforms that tap settlement rivalries’ potential benefits.  First, courts should formally or informally coordinate review over dueling public and private settlements.  Second, courts should  streamline notice and opt-out provisions to reduce victim confusion or unintended waivers of rights. Third, government lawyers should adopt the distribution guidelines proposed by the American Law Institute in large-scale litigation to consistently balance victims competing interests and reduce strategic behavior among parties.

March 25, 2013

Professor Joseph Discusses Lawyerland

In the last couple of weeks Professor Lawrence Joseph has been on the road discussing his book, Lawyerland. On March 4, 2013 he spoke in Professor Simon Stern’s Law and Literature class at the University of Toronto Law School and on March 12, 2013 he spoke in Professor Robin West’s Law and Humanities class at Georgetown University Law Center.

March 22, 2013

Recent Faculty Scholarship

Professor Jeremy Sheff has published Self-Replicating Technologies, 16 Stan. Tech. L. Rev. 229 (2013).  Here’s the abstract:

Self-replicating technologies pose a challenge to the legal regimes we ordinarily rely on to promote a balance between innovation and competition. This Article examines recent efforts by the federal courts to deal with the leading edge of this policy challenge in cases involving the quintessential self-replicating technology: the seed. In a recent series of cases involving the invocation of the patent exhaustion defense by purchasers of Monsanto’s “Roundup-Ready” genetically engineered herbicide-resistant crop technologies, farmers have argued that Monsanto’s patent rights do not extend to the second generation of soybeans grown from a patented first-generation seed. In each case, the Federal Circuit found for Monsanto and against the farmers. The Supreme Court is about to take up the issue for the first time.

In this Article, I argue that the Federal Circuit reached the right result in the Roundup-Ready cases, but that it failed to articulate a satisfactory justification for its decisions. That justification, I claim, should be that the patent-based policy set by the Federal Circuit is preferable to alternative legal regimes—such as trade secret and contract law—because it avoids disincentives to competition, innovation, and dissemination of new self-replicating technologies while reducing transaction costs inherent in their commercialization. Importantly, however, not all self-replicating technologies are identical, and a categorical rule exempting them from patent exhaustion doctrine is unwarranted. I propose instead that application of the exhaustion doctrine should depend on the patentee’s ability to charge supracompetitive prices in its primary market where consumers are able to substitute secondary-market embodiments.

Meanwhile, Professor Edward Cavanagh’s article, The Impact of Twombly on Antitrust Actions Brought in the State Courts, has appeared in the Antitrust Source, an on-line, peer-reviewed journal published by the ABA Antitrust Section. Here is its opening:

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly set off shockwaves that reverberated throughout the federal civil justice system. In a calculated effort to raise the bar for pleadings in federal court, the Court (1) redefined notice pleading; (2) consigned to the scrap heap the fifty-year old “no set of facts” test embodied in Conley v. Gibson in favor of a “plausibility” standard; and (3) assigned trial judges the task of actively scrutinizing complaints to make sure that deficient claims do not proceed to expensive discovery and perhaps an equally expensive, and ultimately unsuccessful, trial.

As federal courts have labored to implement the new pleading standards, state courts have taken notice of Twombly and its progeny as well in addressing state law pleading issues. This article (1) examines the treatment of Twombly by the state courts, particularly in antitrust cases; (2) analyzes whether that treatment inures to the benefit or detriment of state court litigants; and (3) considers pleading along with other factors in analyzing the practical question of which forum—state or federal—might be the most advantageous venue for a given civil action.

March 22, 2013

Recent Faculty Speaking Engagements and Media Appearances

Sparacio Professor Vincent C. Alexander spoke at NYU Law School’s program, The CPLR at Fifty: Its Past, Present, and Future, about New York’s civil procedure rules.  His remarks will appear in the NYU Journal of Legislation and Public Policy.  Professor Leonard Baynes also spoke at NYU recently, at the Milbank Tweed lecture series, on faculty diversity hiring. You can watch video of his talk here.  Meanwhile, Professor Janai S. Nelson appeared  on television’s Today’s Verdict to discuss women and voting rights.

March 22, 2013

Welcome Aboard Jeff Sovern!

Some of you have no doubt noticed that the Faculty Scholarship Blog has been quietly lately. I am pleased to announce that Professor Jeff Sovern has graciously volunteered to help keep the blog up to date. Welcome aboard Jeff and thank you for pitching in.

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