Twenty-five years ago, then-Chief Judge Wilfred Feinberg of the Court of Appeals for the Second Circuit wrote, “[T]he way that courts operate has a significant, possibly even dominant, influence on the quality of justice that can be obtained from them.” Yet despite the apparent importance of how courts manage their workload—for… Read More »
In her first term as an Associate Justice of the Supreme Court of the United States, Elena Kagan recused herself from roughly one-third of the cases on the Court’s docket. Although Justices do not typically divulge their grounds for recusing, the reason for all of these recusals was obvious: Kagan… Read More »
Intellectual property (IP) law in the United States is off course and headed onto the shoals of ever-increasing protectionism. Copyright law, in particular, has come uncoupled from its constitutionally defined purpose. A tightly circumscribed right intended to incentivize creativity and the spread of knowledge has instead become an ever-expanding monopoly… Read More »
Lee Anne Fennell
When individuals and households select products, services, or endeavors, they are usually making a bundled choice that comes with a certain level of risk exposure or insurance protection built in. Buying a house? You’re also buying a hefty dose of local housing market risk, for better or… Read More »
During the last presidential campaign, then-candidate Barack Obama pledged to close the detention center at Guantánamo Bay, Cuba and suggested that he would end the use of military commissions and rely exclusively on federal courts to prosecute suspected terrorists. Upon assuming office, he revised his approach and announced a bifurcated… Read More »
On May 10 and 11, 2010, scholars, practitioners, and judges met at Duke University School of Law for the 2010 Civil Litigation Review Conference (Duke Conference). The Duke Conference was sponsored by the Advisory Committee on Civil Rules at the request of the Standing Committee on Rules of Practice and… Read More »
E-discovery sanctions are at an all-time high. We identified 230 sanction awards in 401 cases involving motions for sanctions relating to the discovery of electronically stored information (ESI) in federal courts prior to January 1, 2010. We analyzed these cases for a variety of factors, including sanctioning court, sanctioning authority,… Read More »
Securities regulation has traditionally focused on encouraging truthful disclosure that facilitates the accurate pricing of securities. A typical securities fraud claim under the primary antifraud rule, Rule 10b-5, must thus point to a misrepresentation or omission that is material to investors. As Justice Lewis Powell declared in an often-quoted passage from… Read More »
My article Funding Irrationality addresses a relatively unexamined issue in the literature of class action settlements and public settlement funds: should the people who oversee a large settlement fund account for claimants’ irrational settlement decisions?
Much of the literature related to large settlements seeks to improve how judges and private… Read More »
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is… Read More »