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Social movements, NGOs and other political actors often mobilise the law for social change. Strategic litigation and collective legal mobilisation can be key instruments to face current political challenges like the climate crisis, human rights violations against refugees or the exploitation of workers along global supply chains. Although these struggles are framed by a societal context and have impacts on the political and juridical fields, the literature about legal mobilisation still does not decidedly engage with a social-theory-based perspective on such struggles. By developing the concept of legal struggles, the article proposes a conceptual framework to analyse both the ambivalence and the emancipatory potential of progressive struggles in the juridical field. Critical Theory, Materialist Theory and the Theory of Social Fields by Pierre Bourdieu are combined to investigate the specific form of collective legal struggles carried out in this arena. We examine repertoires and strategies of collective actors as well as the emancipatory potential of these mobilisation strategies. Our conclusions point to the structural distinctions and selectivities which define the juridical field in capitalist societies and also the conditions of possibility of political struggles using the law. [ABSTRACT FROM AUTHOR]

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.

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process. Engaging in this practice--marshaling procedure to increase justice for marginalized groups and to decrease procedural subordination and white supremacy--is a form of what I am calling resistance proceduralism. I draw from engagement with procedures, such as requirements to file a lawsuit or for bonds and securities, in my ancestors' freedom suits--lawsuits fighting for their freedom from slavery--to query whether some marginalized litigants, and even people who were enslaved at the time, may have engaged in resistance proceduralism. [ABSTRACT FROM AUTHOR]

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a very wide range of people who are involved in the execution of the laws. Some statutory provisions are also treated this way; consider the idea that the term "air pollutant" necessarily includes greenhouse gases. Those who draw extravagant inferences might be engaged in a form of motivated reasoning; their (unarticulated) values and preferences might be responsible for the particular inferences they draw. Alternatively, they might be engaged in an unacknowledged form of Dworkinian reasoning, in which they are attempting to make the best constructive sense out of a legal term. [ABSTRACT FROM AUTHOR]

Over the past decade, the Wisconsin Supreme Court has issued "fractured" opinions--decisions without majority support for any one legal rationale supporting the outcome--at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court's particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one has analyzed the deeper issues animating this predicament: how fractured opinions in Wisconsin have been handled in the past, what norms surround those choices, and why this problem has become so pronounced. This Article details the history of fractured opinions at the Wisconsin Supreme Court, from the state's founding to the present, with a particular focus on the past twenty years and the development of the court's current crisis. With this history in mind, along with (i) foundational principles of state judicial practice and (ii) the shortcomings of the United States Supreme Court's approach to fractured opinions in Marks v. United States, 430 U.S. 188 (1977), a series of potential reforms are proposed. In particular, this Article suggests that the Wisconsin Supreme Court clearly define and explain what this Article dubs "the Rationale Rule," that is, the court-adopted principle that a "majority of the participating judges must have agreed on a particular point" of law for precedent to form on that point. [ABSTRACT FROM AUTHOR]

Both territoriality and political status serve as parameters for determining the extent of a state's obligation to uphold human rights. Scholars have shown that different actors may manipulate the scope of these parameters to serve their particular purposes. Based on interviews with lawyers from Israeli human rights organizations, this article shows how they also manipulate the relationships between these parameters. When representing different clients, lawyers from Israeli human rights organizations accentuate one parameter over the other, demand congruity between them, or reject both. The findings highlight how the movable intersections between territoriality and political status facilitate a multitude of discursive strategies from which lawyers can pick and choose, to address political predicaments they face in their praxis. Furthermore, by judiciously applying these strategies, lawyers are able to mobilize the indeterminate relationship between political status and territoriality to destabilize what they perceive to be the unjust boundaries promoted by the state. [ABSTRACT FROM AUTHOR]

Human rights‐based climate litigation cases have become increasingly prominent over the past decade. While absolute numbers of these cases are still relatively low, they have attracted significant praise and scrutiny, both from the standpoint of the media and the academy. However, while there is a large body of scholarly literature on these rights‐based climate cases, relatively little qualitative research has focused on the actors bringing these claims before the court. This article uses qualitative socio‐legal research methods to examine how lawyers and activists in the climate litigation space think about these cases, their strategies and their reasons for using human rights‐based arguments to address the climate crisis. By foregrounding these actors and their voices, this article tells the story of the human rights‐based climate litigation movement and how it came together. [ABSTRACT FROM AUTHOR]

This study investigates the activities requiring the most important decisions for lawyers during a typical professional day. The sample was composed of ten lawyers and ten non-legal professionals to compare different working groups. Daily journals (DDs) were used to gather behavioral information about the type of activities that require varying levels of relevance in terms of decision making and the time of day when professionals make these important decisions. Qualitative findings suggested decisions are mainly taken in relation to leisure, work and planning activities. For both groups, more relevant decisions were taken in the morning compared to afternoon and evening, and more in relation to work compared with leisure activities. Interestingly, the group of lawyers reported a greater relevance for decisions related to planning activities compared to work activities. At the practical level, this evidence could guide the organization of work activities made by the institutions, e.g. recommending that tasks requiring decision making are placed in strategic time slots. For lawyers, the moment in which they plan their activities consists in the phase in which the fate of their work is really played: meeting with counterparts, act/opinion/warning drafting, legal advice, and consulting are all legal actions that require important decisions for them. [ABSTRACT FROM AUTHOR]

This Article analyzes the so-called Field of Dreams problem in multidistrict litigation (MDL). Once an MDL is up and running, the story goes, plaintiffs' lawyers flood the proceeding with meritless claims in the hopes that they will be swept into a global settlement before anyone ever looks closely at them. Critics have called this the most pressing problem with MDLs today and lobbied both Congress and the Federal Rules Committee for MDL-specific rules to address it. This Article analyzes the empirical and normative dimensions of the MDL Field of Dreams. While the empirical evidence behind existing complaints about meritless claims in MDL is exceedingly thin, the economic intuition behind the phenomenon is quite plausible: if you reduce the cost of litigation, as MDL does, more claims with lower expected values will enter the system. Assuming, then, that some significant portion of those new claims are meritless, this Article asks, what, exactly, is wrong with that? It examines several potential problems an influx of meritless claims could create from both the defendants' and plaintiffs' perspectives. While some of these concerns are serious, others are overblown. And the types of claims that garner the most criticism-those filed by people who have not been exposed or injured-are actually the least problematic. Many of the real problems that the Field of Dreams creates can be addressed through private ordering and case management techniques that are within the existing powers of the MDL judge and do not require a radical overhaul of MDL procedures. [ABSTRACT FROM AUTHOR]

In multidistrict litigation, as elsewhere, personnel is policy. As MDL has become a major site for aggregate litigation, commentators have raised concerns that large-scale products liability cases are unduly influenced by a small cadre of elite lawyers whom courts repeatedly appointed to serve in the most powerful MDL leadership roles. Repeated appointments of these "repeat players," commentators worry, facilitate self-dealing, suppress dissent, and aggravate conflicts of interest seen in other areas of aggregate litigation. These concerns about MDL overlap with broader concerns across the bench and bar about the degree to which white people and men dominate important leadership posts, to the exclusion of younger attorneys, women, LGBTQ+ people, and attorneys of color. In response to these concerns, prominent authorities urged MDL courts to adopt a number of reforms. They recommended that judges appoint leaders through open, competitive processes; create additional leadership posts and committees; and appoint leaders for limited terms in order to create more opportunities for new attorneys to participate in leadership. But, outside of a handful of highly publicized cases, we have little empirical evidence of whether MDL leadership appointments changed in the ways that reformers proposed. This Article-part of a larger, ongoing study of the nature and functions of MDL leaders and the MDL model of aggregate litigation begins to fill that gap. Drawing on a dataset of thousands of filings and orders that were entered in sixty-eight products liability MDLs pending in June 2019, we report data on the size, composition, and appointment process for MDL leadership slates, and changes in the makeup of leadership slates in the eighteen-year period our dataset covers. Our data tentatively suggest that reformers' calls for larger, complex leadership slates and frequent competitive leadership appointment processes went unheeded. Examining trends in the size and structure of MDL leadership slates in products liability MDLs, we find little evidence that courts implemented the structural changes that the reformers suggested. Yet, while leadership appointment practices and the complexity of MDL leadership slates do not appear to have changed during the period we studied, we find intriguing changes in who is being appointed to leadership posts. Slightly less than a quarter of leadership appointments in our data went to female attorneys, suggestive of only a trivial increase in women's representation on leadership slates compared to earlier studies. But the majority of leadership appointments also did not go to super-elite repeat player attorneys. And, comparing our findings with earlier work that examined MDLs pending in 2013, we find substantial movement in the attorneys and firms whom MDL courts appointed most frequently to leadership posts. These findings complicate received wisdom about MDL leadership posts. While we document considerable continuity in who is being appointed to MDL leadership posts and how, our data are suggestive of a deep bench of potential future MDL leaders for judges to choose from, as well as the opportunity for even further change in the future. [ABSTRACT FROM AUTHOR]

The article examine the practice of forced fee transfers in Multi-District Litigations (MDLs) and whether the law of restitution and unjust enrichment supports such fee awards. It argues that MDL procedures often violate the law and judges regulate fees more aggressively in MDLs than in other types of litigation. It further highlights that judges in MDLs has the authority to override the contractual entitlements of individually retained plaintiffs attorneys (IRPAs).

Drawing on qualitative empirical research, this Article reports and explains the unusual role of insurance in mass tort litigation. In contrast to ordinary tort, corporate governance, and securities litigation: (1) mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants' liability insurance. except in the insolvency or near-insolvency context; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their liability insurers. if any, later; and (4) many mass tort plaintiff law firms rely on non-recourse litigation funding that resembles the earliest forms of commercial insurance-bottomry and respondentia-and there is an emerging insurance market that reduces the cost of this funding and may one day supplant it. In addition to providing a new understanding of the role of insurance in mass tort litigation, this research provides empirical support for two of the conceptual insights in Kenneth Abraham's The Liability Century : (1) the mismatch between product liability and product liability insurance that emerged near the end of the twentieth century and (2) the increasingly insurance-like function of tort law. [ABSTRACT FROM AUTHOR]

A crisis in pro se litigation is currently facing the U.S. legal system. This crisis appears in areas of law ranging from family law to consumer protection law to employment law to the rights of people currently experiencing incarceration. In these and other areas, litigants without lawyers almost invariably lose due to enormous legal and sociolegal impediments. Most scholars and other legal observers view this situation as virtually hopeless, but this Article turns in a novel direction by conducting an empirical study of those rare cases where pro se litigants succeed. The study involved assembling two original hand-coded datasets of these cases in nine states during a period in 2020. The first dataset consists of all 568 cases where pro se litigants succeeded, and the second consists of the 619 precedents that pro se litigants cited favorably in these cases. Analysis of these datasets shows that the substantial majority of pro se successes relied on a body of "distributive precedents," established by cases in which both original parties had lawyers. This Article identifies several of the key legal and social features of the distributive precedents, including their areas of law, geographical origins, and procedural and substantive characteristics. Based on these research findings, the Article outlines policy interventions into the pro se crisis, identifying several mechanisms for expanding the supply of distributive precedents and for increasing access to them. [ABSTRACT FROM AUTHOR]

The book is structured in three parts: (1) the state of the client "but for" the brain injury, focussing on the premorbid state of the client preceding the injury; (2) the current condition of the client, focusing on issues including methodology, reliability, validity, dose-response relationships, the frontal paradox, and capacity, financial and litigation-related decision-making in brain injured clients; and (3) the final section of the book which focuses on loss, disability and impact, including aspects relevant to the determination of the quantum both at a theoretical and practical level and culminating in a synthesis of all of the material presented throughout the book into a contemporary framework for medicolegal formulation. Neuropsychological Aspects of Brain Injury Litigation: A Medicolegal Handbook for Lawyers and Clinicians: Edited by Phil S Moore, Shereen Brifcani and Andrew Worthington Routledge, 2021, 254 pp., £39.99 (paperback), ISBN 9780367616274, 0367616270 Charles and Johnson's introductory chapter on legal principles and litigation surveys the legal context for the dispute and explores how the neuropsychological evidence fits within this. [Extracted from the article]

This article provides an overview of recent regulatory and legislative developments of interest to Canadian energy lawyers from April 2021 to March 2022. It includes discussions of recent regulatory decisions and related judicial decisions, as well as changes to regulatory and legislative regimes impacting energy law. This article also discusses and comments on a number of ongoing regulatory and legislative developments to watch in the coming year. Topics discussed include the opportunities and challenges posed by decarbonization efforts, Aboriginal law, standard of review, and other natural resource and power developments. [ABSTRACT FROM AUTHOR]

Previous research is largely mute about the strategies that printers and their legal counsels used to defend state libel lawsuits. Analysis of the legal arguments employed in sixty-eight state libel jury trials in anglophone courts from 1699 to 1792 identifies which of them were most associated with acquittal. Jury-nullification arguments, based on freedom of the press, which encouraged jurors to disregard judges' directives and to contravene the law, had a higher rate of success than did approaches based on the standard legal precedents of the period. These findings suggest that the public was sympathetic with a broad interpretation of press freedom at a time when many Crown judges attempted to limit it exclusively to prior restraint. [ABSTRACT FROM AUTHOR]

We examine the impact of legal representation in an administrative setting. Focusing on adversarial proceedings within the United States Patent and Trademark Office and employing new data on patent litigation, we investigate patent rights—a legal area dominated by specialized, upper‐hemisphere litigation teams that generally represent parties with ample resources. Even in an environment with substantial parity in representational capability, we find that litigation team quality matters. Perceived firm quality and litigation team size both enhance the likelihood of victory; these findings are robust under a number of different approaches used to account for the ability of attorneys to select their clients. [ABSTRACT FROM AUTHOR]

The article offers tips to lawyers when writing a introduction of legal briefs that is persuasive to reduce a dispute and its resolution. These include getting down to brass tacks or giving rise to the dispute, giving the judge a list of reasons to win the case, triggering judicial fears of misconstruing a doctrine or statute, creating new duties, rules or defenses and reaching an unfair result, contrasting two views when arguing an opponent's position and considering memorable things.