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Abstract:
Some people have argued that the uniform dispute resolution process used by ICANN to resolve domain name disputes would be a good model for internet disputes generally. This article argues the opposite: the UDRP teaches sobering lessons about the consequences of privatized dispute resolution processes. The lessons include: the questionable legitimacy of privately-adopted substantive standards; the danger of unprincipled choice of law decisions to fill in the gaps in that private law; unreconciled splits among arbitrators as to the meaning of the standards; and a tendency to expand beyond the narrow jurisdictional limits of the policy. The UDRP also demonstrates that procedural choices can exacerbate substantive ones when private processes are imposed without true consent, when procedural rules have uneven impact on the parties, and when procedures designed primarily to be fast are allowed to frustrate other due process values. The failures of the ICANN process show that government still needs to play a role in the world of otherwise private dispute resolution. Private systems are only useful if the applicable law is legitimate and the applicable procedures are actually fair. Unfortunately, in settings involving power imbalances, the systems that have been designed to date have not met the due process sniff test. Acceptable rules could be geared toward providing affordable access to the process, notice, a method for sharing relevant information, a reliable way of resolving factual disputes, the use of truly unbiased decision makers, process transparency, written reasoned opinions, and some kind of meaningful appeal. The system would balance cost and fairness in ways that impacted parties evenly. It would not be mandatory, but rather would have to attract parties who were not compelled to participate. The ICANN process does a poor job within its own limited sphere, and if allowed to expand into other areas would suffer from even more significant substantive and due process failures.

ICANN, UDRP, dispute resolution, online dispute resolution, technology, internet, due process, privatization

Abstract:
The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber of Commerce has a spin-off organization,the Institute for Legal Reform, that issues an annual report on each state's lawsuit climate, ranking states from 1 to 50 on their friendliness to business, based on a survey of general counsel of very large businesses and their outside lawyers. Since no state wants to be found near the bottom of the list, the ILR report also creates pressure for legal change.

This essay uses West Virginia as a test case to examine the methodology of the Hellhole and Lawsuit Climate reports. It provides context by briefly tracing the earlier campaigns of tort reform advocates, highlighting some of the ways in which they have played fast and loose with numbers and stories. The essay describes the national Hellhole and Lawsuit Climate campaigns, and then focuses on ATRA's treatment of West Virginia in order to demonstrate the techniques of the hellhole reports. For example, the reports represent opinions as facts, use quotations and anecdotes in a misleading and manipulative way, omit bad facts, and misuse statistics.

Reasonable scholars on all sides of the substantive and procedural issues involved in tort litigation have debated and will continue to debate difficult issues such as deterrence, insurance, proof of causation, procedural efficiency, the role of the courts, the limits of science, and best choice of decision maker. The hellhole reports add nothing to these thoughtful and nuanced debates; indeed, they debase that debate by misleading and misinforming citizens and lawmakers.

judicial hellhole, lawsuit climate, tort reform, medical monitoring, mass tort, joinder, forum non conveniens, rhetoric, lawsuit crisis, empirical data

Abstract:
The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of addressing and proving the merits of their objections to the cost of discovery.

This article begins by tracing the development of the fishing expedition metaphor in civil cases, demonstrating the way its changing uses reflect and contribute to the legal controversies of each era. For most of its life, the metaphor has been used to condemn "fishing." During the period of the New Deal, and for several years afterward, "fishing" was acceptable. Recent cases, however, have gone back to a more skeptical view of certain types of discovery and litigation, so cases decrying "fishing expeditions" have returned with a vengeance.

Part II of this article examines the impact of the fishing metaphor. Calling something a "fishing expedition" makes the court's decision sound easy and obvious. Facile use of the metaphor can thereby obscure the policy trade-offs underlying decisions about pleadings and discovery. In an overwhelming proportion of modern cases, it is plaintiffs who are said to be "fishing," and the metaphor's concentration in certain kinds of cases reflects and reinforces a kind of anti-plaintiff bias. The article concludes by suggesting that we reject the fishing metaphor. It has been trite for more than two hundred years. It leads to mangled thoughts like "the trial court [should not] allow plaintiffs to embark on a wide-ranging fishing expedition in hopes that there may be gold out there somewhere." More important, the "fishing" metaphor can provide cover for rulings that if fully explained would be seen to violate the letter or spirit of the Federal Rules of Civil Procedure.

discovery, civil procedure, pleadings, legal history, law and humanities

Abstract:
This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a clause could appear in a contract with an employer, a bank, a cell phone company, an internet service provider, a credit card company, a stock broker, a landlord, a doctor, a hospital, a school, a gym, a travel company or even an exterminator. With this clause, a potential institutional litigant has obtained many of the features that normally motivate businesses to require arbitration, but without the expense of arbitration fees, and without the necessity to litigate the validity of the arbitration clause or to sue to enforce an arbitrator's decision.

The contracting party who is a repeat player can tailor the litigation contract to suit its probable position in litigation. If the institutional party predicts that it would likely appear in court as a defendant, it can make choices that decrease the out-of-pocket cost of litigation, eliminate the threat of class actions, avoid a jury trial, and limit the bad publicity and proliferation of litigation made possible by public disputes. In addition, the contracting future defendant can include provisions likely to make it harder for the party with the burden of proof to prevail, such as limiting discovery and the presentation of evidence. If the institutional party predicts that it would likely appear in court as a plaintiff but is likely to be in a position in which it has pre-suit access to information, it will still want to limit discovery, speed the dispute resolution process, avoid publicity, and eliminate the jury. In either case, it can choose a favorable forum and the most attractive available law. Would courts enforce such a contract? If they follow precedent established in arbitration and jury waiver cases, they might easily do so.

In the context of arbitration clauses, courts have enthusiastically endorsed freedom of contract, particularly when those contracts result in a perceived efficiency gain for the courts themselves. They have dismissed the differences between court procedures and arbitration procedures as insignificant unless the chosen arbitration procedures effectively deny a remedy or are unconscionable under state contract law. Yet restricting procedural choice within the public court system has implications beyond those of opting out of the system entirely. Ultimately, contractual modifications to court processes raise the issue of the extent and importance of the public purposes of the judicial system.

arbitration, jury waiver, dispute resolution, litigation, civil procedure, due process, class action

Abstract:
Appellate judges in the twenty-first century find themselves in a world in which litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world's library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. This combination of felt need and ready access has turned a once-marginal concern into a dilemma that affects courts and litigants daily. The problem of judicial research has always been with us, lurking in the margins, and yet we do not have a workable framework for discerning when it is and is not permissible. We can no longer fail comprehensively and rigorously to engage this question, because it is now taking on a central importance to proper judicial decision-making in an increasing number of cases. The stakes are high. Whether and when judges independently may research cuts to the very heart of our adversary system of justice: these questions implicate directly the ethical role of the judge, the balance between fairness and efficiency, the rights of the parties, and how we view the rule of law. In 2007, the ABA adopted a new Model Code of Judicial Conduct, and it proposes a rule that ties judicial research to the parameters of judicial notice. This article argues that states should reject the current proposal and adopt instead a rule that provides clear guidance to judges, notice to litigants, and transparency to the judicial system.

ethics, judicial ethics, judicial notice, due process

Abstract:
Metaphors are not pretty figures of speech; they affect the way people within cultures perceive reality. It is therefore significant that the metaphors most commonly used for the adversary system center on war and sports. This tends to over-emphasize the competitive aspects of litigation and disguise opportunities for more cooperative behavior. This article collects and analyzes those metaphors, and discusses the reasons for their powerful hold on legal culture. It also considers some of the negative effects of the metaphorical system and speculates about whether we could find and nurture alternative metaphors.

adversary system, metaphor, war, sports, sex, ethics, battle

Abstract:
Despite cliches about Internet speed, disputes that arise on and about the Internet can be time-consuming to resolve, legally murky, and factually complex. In response, Internet players with market power are opting out: mandatory arbitration is replacing both substantive law and court procedure, and technological remedies are providing self-help without any dispute resolution at all. These alternative procedures tend to move faster than courts and to cost their corporate creators less than lawsuits. They are also structured to maximize the success of the powerful. But faster is not always better. Cheap is not always fair or accurate. Market power is not always used to achieve the public good. And the power to make the rules is often the power to win the game. The Internet is a largely privatized world, and private actors are creating structures under which governments and their courts are increasingly irrelevant.

A combination of private forces, government cooperation, and technological feasibility is creating a trend. Government, in the form of courts, is being marginalized and squeezed out of dispute resolution. When the technology of the Internet is capable of providing a remedy attractive to those with the power to design it, there is incentive to use it. When the law (procedural as well as substantive) is unappealing, a combination of contract and technology minimizes its impact. Further, the benefits of this privatization are not evenly distributed but result in some clear winners: trademark owners; copyright holders; corporate repeat players. The use of contract is already moving much of this dispute resolution out of the courtroom. We are not far from a time when technology makes it possible to move it out of the realm of the human.

The article discusses four important contexts in which Internet disputes have become privatized, and privatized in ways that provide predictable advantages to the already-powerful:
1) the domain name dispute policy of the Internet Corporation for Assigned Names and Numbers (ICANN); 2) the take-down provisions of the Digital Millennium Copyright Act; 3) the use of digital rights management technology to provide computer-activated self-help to those seeking to impose and automatically enforce contract; and 4) contractual shrinkwrap or clickwrap clauses mandating binding arbitration, in consumer transactions, of contracts creating their own law.

These scenarios, if left unchecked, will have several consequences for the power of courts as institutions and for due process to litigants. First, they result in privatized justice. Second, the processes shift procedural advantage to certain powerful players. Third, the mechanisms do not protect certain traditional components of due process in dispute resolution. Fourth, by eliminating government-run courts as the arbiters of disputes, these processes decrease the power of government to shape and enforce substantive law. For example, these processes can result in granting trademark owners protection they would not be granted under trademark law, copyright owners rights to prevent or license publications that they could not control under copyright law, and sellers rights to impose terms they could not impose under commercial law. Public interests that balance private property rights under real world governments (including free speech, an intellectual commons, and consumer protection) need not be included in these privatized systems. The article concludes that government action will be necessary to set minimum standards of public policy and due process, and they must do so quickly before the architecture of the Internet is too entrenched to change.

Abstract:
This article reports on an empirical study of juror comprehension of pattern jury instructions. It demonstrated that comprehension of the original instructions was poor, but that rewriting significantly improved their ability to understand and explain the meaning of the instructions. A separate study showed that jurors report that they discuss and consider the language of the instructions provided to them.

juries, jury instructions, empirical research, language, plain english

Abstract:
This article surveys the traditional justifications for giving corporations the benefit of attorney-client privilege. It rejects both moral and utilitarian explanations and argues that, far from being beneficial or benign, the privilege actually does great harm to the truth-seeking function of litigation and imposes tremendous transaction costs on the litigants and on the judicial system as a whole.

privilege, attorney-client privilege, discovery, corporations, litigation ethics

Abstract:
People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

arbitration, torts, personal injury, contracts, procedure, discovery, jury, class action

Abstract:
This article argues that the 1998 discovery proposals, which became the 2000 discovery amendments, tend to favor defendants and will not solve the perceived problems at which they are aimed.

discovery, federal rules, sanctions

Abstract:
This article responds to Professor Ronald Allen's Work Product Revisited: A Comment pn Rethinking Work Product.

work product, privilege, discovery, litigation, law & economics

Abstract:
This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court's interest balancing is flawed in systemic ways that result in overvaluing non-party interests.

equity, interest balancing, desegregation, Supreme Court

Abstract:
This article argues that interlocutory review of discovery orders can allow error correction and the development of a coherent body of case law without burdening the appellate courts. It uses an empirical study of interlocutory review in Texas as an example of how such a system could work.

discovery, appeal, review, mandamus

Abstract:
This article analyzes the traditional and law & economics explanations purporting to justify the exclusion of work product materials from discovery. It argues that none of these arguments are well founded and that, instead, the privilege increases costs and decreases the system's ability to produce appropriate settlements and accurate fact finding. To the extent that the privilege serves legitimate ends, narrower and more narrowly tailored protections would provide the necessary protection.

discovery, work product, privilege, deposition, interrogatory, federal rules

Abstract:
The form of the court's charge to the jury affects power relationships among judge and jury, trial and appellate courts, and plaintiffs and defendants. It also influences the role of the jury and the content of the underlying substantive law. Under current federal law, trial judges have virtually complete discretion in making decision about jury charge format, despite the important implications of that decision. This article demonstrates, by using examples, the ways in which the form of the jury charge can make a difference. It then argues that the general charge should remain the norm. This is true first for political reasons: the general charge best preserves the proper allocation of power between judge and jury and the jury's role as arbiter of community values. Second, the article argues that special verdicts are neither more accurate nor more efficient than general verdicts except under very limited circumstances. Third, the article argues that a change from the general verdict norm would cause an undesirable shift in procedural advantage from plaintiffs to defendants. The article concludes that FRCP 49 should be amended to provide that general verdicts should be used absent exceptional circumstances and to eliminate the current Rule 49(b) option of a general verdict accompanied by interrogatories. The civil jury is a vital and important institution that deserves our protection from "tort reform" -inspired changes; the general verdict best preserves the jury's historic role.