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Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their "inherent powers as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering that these attorneys be compensated through a "common benefit" assessment on the recoveries of certain clients in the litigation; (c) reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel; and (d) reviewing private settlement agreements. Professors Robert Pushaw and Charles Silver have recently offered the most thorough analysis to date of judges' assertions of their inherent powers when managing MDLs and have concluded that the courts' inherent powers do not properly extend to any of these four actions. In this Article, I critically examine the arguments put forward by Pushaw and Silver. Offering my own analysis within theirinherent powers framework, I agree with Pushaw and Silver's conclusion that the inherent powers of the federal courts do not properly extend to reducing the total contractual fees that plaintijfs agree to pay their individually retained counsel or to reviewing private settlement agreements. However, I find unpersuasive their analysis regarding the appointment and compensation of MDL leadership attorneys. I conclude that MDL courts do have authority to appoint lead attorneys and to order that these attorneys be compensated through a common benefit assessment on the recoveries of certain clients in the litigation. [ABSTRACT FROM AUTHOR]

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]

SUMMARY: Research suggests that the amount of inherent uncertainty in contemporary accounting estimates has increased in recent years, potentially increasing audit litigation risk. We review a recent study that finds that high estimate uncertainty impacts auditor litigation risk in opposite directions, depending on whether the litigation is decided in a jury trial or settled by attorneys out of court. Mock jurors and attorneys specialized in corporate and securities law read the same case about an alleged undetected material misstatement, with jurors judging auditor negligence and attorneys planning proposed out-of-court settlement negotiations on behalf of auditors. Results show that, under common conditions, mock jurors found auditors less negligent when estimate uncertainty was high. However, attorneys predicted the mock jurors to find auditors more negligent when estimate uncertainty was high, leading them to concede more on behalf of auditors in their proposed settlements. [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]

Copyright of CIRCULO de Linguistica Aplicada a la Comunicacion is the property of Universidad Complutense de Madrid and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

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]

The article discusses the increasing complexities of the legal system for a specialized unit of trial practitioners. It recognizes the current legal landscape and discusses how attorneys can develop trial skills in an increasingly specialized world. It is noted that specialization encourages attorneys to learn an area of law in great depth and to stay up to date with new developments to create greater competence in the bar in general.

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]

Copyright of Al-Bahith Al-Aalami is the property of Republic of Iraq Ministry of Higher Education & Scientific Research (MOHESR) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revista Derecho del Estado is the property of Universidad Externado de Colombia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article provides three practical tips for junior lawyers, particularly those involved in complex civil litigation cases that may go to trial. Several discussed include the importance of contributing meaningfully to the trial team, listening with intention to absorb details and understand the case's complexities, and triple-checking all work to build trust and avoid mistakes, especially for lawyers new to trial preparation.

Most civil litigation settles. Many settlements are paid by liability insurers following the negotiation of settlement agreements by the parties’ lawyers. Settlement agreements are contracts, and their interpretation and enforcement are therefore governed by contract law principles. The essential elements of a contract are offer, acceptance, and consideration. In the liability insurance context as elsewhere, contract disputes connected to settlements typically center on either offer or acceptance. To be valid, a settlement offer must be capable of acceptance. The offer must be definite, and its material terms must be reasonably certain. When it comes to accepting a settlement offer, the “mirror image” rule applies in this context as it does in other contract formation scenarios. Under this rule, an attempted acceptance that does not mirror the settlement offer in material respects becomes a counteroffer. If the claimant declines the counteroffer, there is no settlement. This turn of events can be enormously consequential if the insured’s potential liability exceeds its policy limits and litigation ensues. The importance of achieving enforceable settlement agreements is difficult to overstate. The law and public policy strongly favor the settlement of disputes, and courts would be overwhelmed if most cases went to trial. This Article examines contractual aspects of settlement in the liability insurance context, concentrating on the elements of offer and acceptance. It additionally addresses insurers’ ability to reject settlement offers that are intended to facilitate later bad faith litigation without incurring extracontractual liability. [ABSTRACT FROM AUTHOR]

The collaborative advocacy procedure originated in the United States with the lawyer Stuart Webb, who proposes that the parties be at the center of the conflict resolution and be assisted by professionals trained to do so. In Brazil, in 2020, Federal Deputy Ricardo Barros (PP) presented Bill n. 3813/2020, which aims to make it mandatory to carry out an extrajudicial session of self-composition of conflicts prior to the filing of a lawsuit. The scope of this work is to carry out an analysis of the aforementioned Bill (PL) to verify if it is a "Brazilian style" collaborative law institute. To carry out such analysis, a deductive approach method, starting from a general analysis to finally arrive at a specific and bibliographic research technique will be used. At the end, it will be proven that PL n. 3813/2020 is very similar to the collaborative law procedure, with some distinctions, that is why it can be considered a regulation of "Brazilian style" collaborative law. [ABSTRACT FROM AUTHOR]

Effective advocacy depends critically on the ability of attorneys to formulate, analyze, and compare rival courses of action. Whereas attorneys have been doing these things for centuries using little more than their gut instincts and experiences, sophisticated decision aids are now available that can improve the way attorneys assess the value of their cases and the strategic decisions that they make. These aids are proving valuable in medicine and business, but they have not impacted legal practice. This Article seeks to correct this oversight by showing how easy-to-use graphical models provide guidance for strategic legal decisions. Beginning with a paradigmatic example of a plaintiff who must choose between proceeding to trial or settling out of court, the Article shows how decision aids handle the uncertainties and interdependencies that arise when real-world considerations are introduced. In particular, the Article makes the case that influence diagrams, a relative newcomer in the field of decision analysis, should be the decision aid of choice in complex litigation matters. [ABSTRACT FROM AUTHOR]

Purpose: To highlight ESG litigation risks and present an overview of the present landscape of ESG disputes in Europe – with a particular focus on England – and globally. Design/methodology/approach: This article provides an overview of ESG factors, how they impact on companies, and potential claims that can arise from ESG issues. It also provides recommendations on how companies can prepare for, respond to, and ultimately resolve ESG disputes. Findings: The number of ESG cases that are being brought (and won) by claimants in various courts around the world is rapidly increasing. There is a need for companies to prepare for, respond to, and resolve ESG disputes that they may become party to. Practical implications: Companies need to take notice of the growing trend of ESG disputes and claims being brought, and in particular prepare for, respond to, and resolve them. Originality/value: Expert analysis and guidance from experienced dispute resolution and environmental lawyers. [ABSTRACT FROM AUTHOR]

In this Article, we emphasize the need for lawyers, judges, jurors, and others affected by the lawyering and litigation processes to come forward with their stories of how they have been directly or indirectly traumatized by their work or by their duties. We summarize the moving discussions by panelists for the Wake Forest Law Review's 2021 Spring Symposium about their experiences with secondary traumatic stress ("STS"), including testimonials from capital defense attorneys, innocence lawyers, military lawyers, a prosecution social worker, the former wife of a bigfirm lawyer who self-medicated to deal with job stress, and a juror traumatized from a horrendous death penalty trial over two decades ago. We discuss important studies that have been conducted on the STS experiences of public defenders and others. We relay our own survey findings about STS among capital defense attorneys in North Carolina. Dr. McQuiston discusses her research and findings about STS among judges and jurors. We then discuss the need for further studies to document STS in lawyering in order to educate leaders, lawyers, and students about important structural and individual changes that must take place to minimize STS and promote resilience. [ABSTRACT FROM AUTHOR]

The article examines the opioid litigation and other legal disputes between local attorneys and state attorneys general (AG) to analyze the relationship between state and local litigation. Topics discussed include the use of preemption by state legislatures to curb local regulatory authority, the functional similarities and differences between local and state litigation, the recurring themes in such disputes, and the reliance of AGs on private counsel.

We examine whether PCAOB inspection reports increase auditors' litigation risk. We find that inspection reports with audit deficiencies are positively associated with the number of lawsuits subsequently filed against the inspected auditor. These results are strongest when client-level lawsuit-triggering events have already occurred and when PCAOB inspection content is arguably more persuasive. Importantly, these results pertain exclusively to triennially inspected audit firms for which the set of other publicly available signals of audit quality is limited. Furthermore, we do not argue that inspection reports in isolation trigger lawsuits. Instead, once events such as restatement announcements or bankruptcies create the potential for legal action against the auditor, inspection reports provide a public signal about past noncompliance with auditing standards. This signal likely increases lawyers' perceived strength of case against the auditor before the lawsuit is filed and before lawyers have access to the audit workpapers. [ABSTRACT FROM AUTHOR]

"Legal tech" is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of the legal profession. Much of the resulting debate narrowly focuses on what legal tech portends for the professional authority, and profitability, of lawyers. It is also profoundly futurist, full of references to "robolawyers" and "robojudges." Lost in this rush to foretell the future of lawyers and their robotic replacements is what should be an equally important, and also more immediate, concern: What effect will legal tech's continued advance have on core features of our civil justice system and, in particular, the procedural rules that structure it? Tackling that question, this Article seeks to enrich--and, in places, reorient--the budding debate about legal tech's implications for law and litigation by zeroing in on the near- to medium-term, not out at a distant, hazy horizon. It does so via three case studies, each one exploring how specific legal tech tools (e-discovery tools, outcomeprediction tools, and tools that perform advanced legal analytics) might alter litigation for good and ill by shifting the distribution of costs and information within the system. Each case study then traces how a concrete set of civil procedure rules--from Twombly/Iqbal's pleading standard and the work product doctrine to rules and doctrines that govern forum-shopping--can, or should, adapt in response. When these assorted dynamics are lined up and viewed together, it is not a stretch to suggest that legal tech will remake the adversarial system, not by replacing lawyers and judges with robots, but rather by unsettling, and even resetting, several of the system's procedural cornerstones. The challenge for courts--and, in time, for rulemakers and legislatorswill be how best to adapt a digitized litigation system using civil procedure rules built for a very different, analog era. This Article aims to jumpstart thinking about that process by identifying the principal ways that legal tech will reshape "our adversarialism" and mapping a reform and research agenda going forward. [ABSTRACT FROM AUTHOR]

As consolidated multidistrict litigation has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the National Football League (NFL) Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the twenty-six firms involved sparked two additional years of litigation. We explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. Participating firms assess the relative contribution of other firms to the litigation, and then optimization or Bayesian techniques arrive at a consensus or compromise fee allocation. Our methods are intuitively easy to understand, enable broad participation, and are resistant to collusion or other strategic behavior, making them likely to be accepted by the firms involved. We thus provide courts with an important mediation tool or decision rule for these fee division disputes. [ABSTRACT FROM AUTHOR]

Despite a vast literature on contract theory, scholars are only just scratching the surface of understanding how parties design their contracts in the real world. This shortfall is particularly true of procedural customizations. Contrary to some early commentators' estimates, in a small but significant set of circumstances, parties engage in a diverse range of procedural customization. To date, however, scholars have struggled to identify and explain the patterns of ex ante procedural contracting. This Article argues that the first step toward understanding how transactional attorneys harness the potential of procedural autonomy is to recognize that procedural customization functions most effectively to offset litigation opportunism. By systematically considering how various forms of customization limit or eliminate litigation opportunism, this Article demonstrates how contract design can be improved through procedural contracting. This Article then advances a typology of procedural innovation that considers the key attributes underlying a transaction, namely the degree of environmental and behavioral uncertainty present and the frequency with which other similar parties contract in the same domain. This typology offers tentative predictions about when and how parties are most likely to calibrate procedure through contract. [ABSTRACT FROM AUTHOR]

The article discusses whether the case In re Trados Inc. Shareholder Litigation, or Trados, affects how lawyers document venture capital financings or advise boards on exit transactions. Topics covered include overview of Trados and reactions by practitioners and legal scholars, customary practice following Trados and doctrinal and theoretical implications of the observations.

The article discusses that the Haldane Society of Socialist Lawyers and the Middle East Solidarity Network brought together lawyers and activists from Syria, Lebanon, and Egypt to discuss how popular mobilisation and rebellion have changed the region. The speakers explored the limits of legal recourse, the paradigm of radical lawyering under authoritarian rule, and how the international community can show solidarity with comrades across the Middle East and North Africa Region.

The article discusses use of artificial-intelligence (AI) tools by lawyers in the delivery of legal services. Topics include use of AI for legal research, drafting, contract management, and litigation strategy, the ethical responsibilities of lawyers, violation of unauthorized practice of law (UPL), and American Bar Association's Model Rules of Professional Conduct.

Civil law is enforced primarily via private litigation. One characteristic of private enforcement is that litigation levels tend to cycle between periods of boom and bust. This article builds a theory for explaining this fluctuation, proposing that plaintiffs' attorneys can be understood as economic migrants. Just as workers cross borders to find jobs, lawyers "move" across case types and jurisdictions to find profitable claims, and case filing numbers increase as a result. Using the recent wage and hour litigation boom as a case study, this article paints an empirical picture of attorney migration and its influence on case filing numbers. [ABSTRACT FROM AUTHOR]

The article informs that the administrative law judges are often private attorneys acting as independent contractors who are not protected by civil service laws. It informs that the skepticism of the judge's ability to adjudicate may arise, as the government agencies that hire them could have an interest in the outcome of the litigation. It also informs that pecuniary interest exists when income from judging depends on the volume of cases the adjudicator hears.

Legal scholars devote a great deal of energy to understanding how judges allocate expenses in litigation -- rules designed to encourage lawyers to bring cases, to discourage socially excessive litigation, or to sanction undesirable behavior by litigants or their legal counsels. In recent years, the scholarly debate has narrowly focused on empirically evaluating and comparing the American rule ("the costs lie where they fall") and the English rule ("the loser pays the costs"). What the debate has missed, however, is a conceptual understanding of the broader factors that influence the choice between them. In other words, scholars have focused on the "seed" (rule) and not on the "soil" (context). In this Article, I use a discrete area of litigation as an entry point into this debate. Focusing on the uniquely discretionary (or "judge-centered") litigation system of investment arbitration panels, I explore the practice of cost shifting when dealing with manifestly unmeritorious claims -- a setting where the theory unambiguously predicts cost shifting. What makes this narrow domain particularly interesting is that the theoretical prediction of the application of the English rule sharply contrasts with the actual practice in the field, where the American rule dominates. The contrast between theory and practice can be used to help understand the factors that may constrain discretion beyond formal rules. Based on empirical data obtained through descriptive statistics, interviews with arbitrators, case studies, and two survey experiments, I argue against the increasingly narrow debate on litigation costs and for the contextualization of cost shifting. As I explain, part of the problem is that the current debate over optimal fee-shifting rules very often presumes that adjudicators have no affiliation with the litigating parties, that the rules operate in systems unaffected by social pressures, and a symmetrical scheme in which both parties can bring legal claims. However, many systems of litigation operate outside of this narrow construction, opening the door to a wide variety of context-specific factors that affect the independence, accountability, and transparency of the process of rule application. In investment arbitration -- the case at issue -- each party nominates one of the adjudicators, who face strong social pressures in a context where only investors are generally entitled to bring claims. These factors, I argue, interact with the current discretionary rule, which could be improved in clear ways to incentivize a more robust case law. At a theoretical level, I advance the argument that optimal fee rules should account for the settings in which the adjudication processes operate and propose a way to think about these factors for future research. In other words, to focus more on the "soil" and less on the "seed.". [ABSTRACT FROM AUTHOR]