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A Comparative Analysis of Third-Party Litigation Funding in the United States and the United Kingdom
No full textThird-Party Litigation Funding (TPLF), which is also known as litigation finance, involves a financial arrangement in which a third party provides funding to support the plaintiff\u27s pursuit of a civil lawsuit. The third party, in return, receives a portion of the proceeds if the litigation is successful. Like a contingent fee agreement, this type funding model enables a party to bring a lawsuit even if it does not have the resources to pay the up-front costs of the litigation. The important difference is that the litigation funder is not counsel to a party in the case, and that TPLF essentially creates a secondary market for litigation funding. Thus, hedge funds, banks, insurance companies, and other outside investors are providing funding for the attorneys and parties in the underlying case. It is likely that TPLF has both potential costs and benefits. The most apparent benefits include providing access to justice for parties and lawyers who lack economic resources, as well as spreading the risk of bringing (or possibly defending) litigation and improving the level of information about potential claims. Drawbacks include a variety of ethical issues, as well as the potential for an increase in the amount of litigation
Creating Educational Value by Teaching Law Students to be Quasi-Mediators
No full textMost mediation courses currently focus primarily on mediators’ perspectives and interventions during mediation sessions. Under the traditional view, mediators are the intervenors, and the parties, attorneys, and other participants in mediation sessions are the intervenees.
This article argues that mediation courses should provide balanced instruction of the roles of both mediators and attorneys by teaching students how to function as “quasi-mediators” when representing clients in mediation. As quasi-mediators, attorneys look for opportunities to reach reasonable agreements whenever appropriate, and they use mediation techniques to move the process in that direction. But they do not surrender their loyalty to their clients or try to be neutral. Another term for attorneys acting as quasi-mediators is “good lawyering.”
This article grows out of a conversation at this year’s Association of American Law Schools ADR Section Works-in-Progress Conference. I presented data showing that more than 90% of law school mediation courses and more than 90% of the coverage in popular mediation texts focuses on the mediator’s role. Some faculty teaching mediation expressed concern about losing “precious time” in their courses, especially considering that most of legal education focuses on adversarial litigation. This article suggests, seemingly counterintuitively, that we can increase instruction in mediation skills by combining instruction in neutral and representative roles in mediation courses
Rebalancing Judicial Immunity for Civil Rights Actions
No full textSterilization for shorter jail sentences. Vasectomies and birth control implants for freedom. In 2017, a criminal court judge in rural Tennessee made this offer to people incarcerated through sentences issued by his court. When litigators sought monetary damages and to enjoin the practice, and the local media exposed the scheme, the judge begrudgingly rescinded the order while expressing surprise that it was controversial. The Board of Judicial Conduct issued a letter of reprimand to the judge. Meanwhile, the United States District Court for the Middle District of Tennessee summarily dismissed the constitutional tort claims against the judge based on absolute judicial immunity. The judge continued to sit on the bench for five more years with no real civil liability and no more than a letter reprimand as administrative punishment. A jurist in the United States had instituted a modern eugenics scheme and suffered less than a slap on the wrist.
Judicial immunity protects the most egregious abuses of authority. The doctrine also frustrates the very foundations of civil rights liability under 42 U.S.C. § 1983 by ensuring injured plaintiffs receive no recompense for constitutional or statutory deprivations committed by jurists. At the same time, the immunity admittedly is important to promoting an impartial judiciary focused on justly deciding controversies rather than defending frivolous lawsuits. Judicial immunity should strike a fair balance between these two competing interests. It does not.
To promote redressability while preserving judicial independence, this Article proposes a modest reform to judicial immunity. I suggest revising the absolute immunity standard for trial court judges to say: a judge is not subject to suit or liability for judicial acts not made in the clear absence of all jurisdiction unless the plaintiff did not have a meaningful opportunity to appeal as of right. This revision refocuses judicial immunity at the trial court level on the availability of a meaningful opportunity for appellate review as a matter of right. This new test thereby allows plaintiffs a chance to either have a judge\u27s unconstitutional action reversed by an appellate court or afford a plausible cause of action for monetary damages against the offending jurist. Because of the use of multi-judge panels by appellate courts, this new standard need not apply to them. Therefore, this modest reform proposal rebalances judicial immunity to provide a remedy for a right deprived without trampling judicial independence. In other words, guaranteeing judicial immunity does not breed judicial impunity
Private Law as Morality: A Critique of Peter M. Gerhart’s Contract Law and Social Morality
Get PDFThis review essay offers a constructive critique of Peter M. Gerhart’s Contract Law and Social Morality (‘CLSM’); it examines, in a very preliminary way, whether humans—parties to contractual negotiation—ever behave in other-regarding, or altruistic, ways. The essay does this through three explorations or investigations. The first considers other-regarding behavior, or altruism, from a scientific perspective: is it possible that humans ever act out of concern for others? Second, it considers CLSM using ideas of altruism found in an eclectically selective use of philosophy. Third, it investigates the concept of the other-regarding person in relation to contract law itself which, of course, is Gerhart’s focus in CLSM. The three explorations address whether humans are ever truly altruistic, or other-regarding, when the aim of liberal life—and so, presumably, of contract—is to satisfy one’s own life-projects (goals and objectives). Having considered other-regarding behavior in these three ways, we conclude, tentatively, that Gerhart’s theory accurately describes the real behavior of human actors who negotiate and then conclude a contract
I Am Become Death, the Destroyer of Worlds : Applying Strict Liability to Artificial Intelligence as an Abnormally Dangerous Activity
Get PDFArtificial intelligence (AI)-enabled tools have produced a myriad of injuries, up to and including death. This burgeoning technology has caused scholars to ask questions, such as, How do we create a legal framework for AI? Because AI creators have acknowledged that even they do not know the capacities of their technology for good or bad outcomes, this Article argues that an existing framework, strict liability, is an appropriate fit for harms arising from this new technology because a party need not prove negligence to prevail. Strict liability was uniquely developed to handle those activities that are “abnormally dangerous.” An abnormally dangerous activity is one that imposes an abnormal risk on anyone who is in the vicinity of its use. The quintessential historical example of this is strict liability applied to the production of atomic energy. Congress acknowledged that nuclear energy would be extremely beneficial to society but could not be supported by the safety net of insurance, due to the potentially catastrophic results from its production. Congress enacted the Price-Anderson Act to both establish insurance for nuclear plant operators and to set a liability cap. The Act served as a carrot to encourage nuclear operator entrepreneurs and as a protection for the public. The development of nuclear energy is comparable to the development of AI. Nuclear energy and AI share the essential feature that their creators acknowledge the potentially enormous, but not fully understood, capacities of their creations to do harm. This Article begins by discussing the development of strict liability for emerging technologies with the attribute of being “abnormally dangerous.” It then explores the issues associated with applying a strict liability framework to AI and posits that an umbrella insurance protection similar to the Price-Anderson Act would be a viable solution to one of the most salient questions in modern history: How do we create a legal framework for AI? This Article argues that regulation should create a compensatory structure for potentially catastrophic harms created by an unknown (or not fully understood) technology
Artificial Intelligence and Antibody Genus Claims
Get PDFAntibodies are the guard dogs of the human immune system. They travel through the bloodstream, sniffing out foreign invaders (antigens), binding to them, and preventing them from harming the body. Instead of having a nose, four legs, and a tail, antibodies are Y-shaped proteins comprised of amino acids that viciously protect their hosts. Think of the tips of the “Y” as mouths that can bite certain antigens and lock them in place, rendering them harmless. Antibodies have the ability to identify a plethora of antigens to bind to and neutralize; “[s]ome researchers have estimated that the theoretical number of different types of antibodies . . . is on par with the number of stars in the galaxy.
How Attorneys Can Be Quasi-Mediators
No full textThis distills insights from a forthcoming article, How Can You Turn Adversarial Attorneys into Quasi-Mediators? The article is a Theory Meets Practice column in CPR’s Alternatives magazine that summarizes a discussion with members of the Association of Attorney-Mediators.Attorneys acting as quasi-mediators prefer to be cooperative and use mediation techniques but they aren’t neutral. They tailor their actions based on their clients’ preferences and the other side’s approach. Another term for quasi-mediators is “good lawyers.”Based on the forthcoming article and the Real Practice Systems Project Menu of Mediation Checklists, this two-page article lists things that mediators can do to promote attorneys’ cooperation as well as lists of dos and don’ts for attorneys to be quasi-mediators.It is a useful resource for law students
User Fee Programs
No full textA user fee is a fee assessed by the government when it provides a good or service to a private party. Classic examples include the fee to enter Yellowstone National Park and payment to the U.S. Postal Service for a first-class postage stamp. In these transactions, the government provides a specific benefit to an identifiable recipient, who pays the fee. Although the federal government has assessed user fees since this country\u27s founding, broad authorizing legislation in the middle of the 20th century made it possible for agencies to craft user fee programs on their own initiative. Interest in relying on user fees rather than general revenue (taxes) intensified in the final quarter of the century as the federal courts sorted through issues relating to the constitutionality of user fees and concerns mounted about the growing federal debt.
Today, hundreds of user fees are in place across dozens of agencies, and collections exceed more than $500 billion per year. Congress has now supplemented the broad mid-century authorizing legislation with statutes that authorize or require specific agencies to collect user fees. Some enactments are prescriptive (even as to the amount collected), while others specify a formula or objective (such as full cost recovery). Some statutory authorizations are permanent, while others are slated to expire, so continuing to collect fees requires reauthorization. Some agencies are fully funded by user fees, some agencies have discrete programs that are fully funded by user fees, and some agencies receive only modest support from user fees. Some agencies collect more money from fees in a year than they will use that year and maintain the leftover funds in a reserve fund in the event of a shortfall, while others do not. And so on.
This Article examines the design and implementation of user fee programs across the Executive Branch. Design means design both at the congressional level (i.e., the drafting of statutory user fee authority) and at the agency level (i.e., the implementing of statutory user fee authority). This Article discusses design decisions that must be made and the choices available; identifies practical and legal constraints on the choices available; explores the relationship between these choices and core values of administrative law; and explains how program designers might make these choices, as a procedural matter and as a substantive matter. On the basis of this discussion and informed by a series of stakeholder interviews, this Article offers recommendations for agencies and lawmakers relating to user fee design and implementation
The Judge-Made Constitutional Penumbra: Why Anti-BDS Laws Unavoidably Implicate the First Amendment and How the Eighth Circuit Avoided Them
Get PDFFreedom of speech and assembly, as protected by the First Amendment, has long been a defining character of “The Land of the Free.” Much of American history has been influenced by actions deemed protected by the First Amendment. Such protection offers American citizens power that the Constitution otherwise reserves for the three government branches: the power to change the law which all American citizens live under and by which they must abide. A commonly recognized form of expression protected by the First Amendment is participation in non-violent protests. The Palestinian advocacy movement is one such movement that utilizes this form of expression through non-violent protests