The Lessons of Lone Pine ENGSTROM, NORA FREEMAN
The Yale law journal,
10/2019, Letnik:
129, Številka:
1
Journal Article
Over the past three decades, Lone Pine orders have become a fixture of the masstort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with ...prima facie injury, exposure, and causation evidence by a date certain–or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it's not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device. But that's just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen–and, in places, complicate–our understanding of these profoundly influential phenomena.
ABSTRACT Research indicates that auditors have an impoverished understanding of trial preparation factors that, independent of audit quality, can significantly elevate audit litigation risk. As the ...scholarly literature sheds little insight about the nature and implications of these factors, we identify what factors audit litigators consider in trial preparation, how they expect these factors to affect litigation outcomes, and how they attempt to leverage these factors. To do so, we interview 39 audit litigators, who identify factors germane to trial venues, jury pools, and case arguments. Guided by the elaboration likelihood model, we construct a framework that predicts these factors influence litigation outcomes by changing jurors’ motivation and/or capability to elaborate. Importantly, we find that litigators who defend (sue) auditors strategically maneuver these factors to increase (decrease) the likelihood of higher juror elaboration, because higher elaboration is favorable to auditors. We discuss implications of our results for practice and research. JEL Classifications: K22; K40; K41; M4; M41; M42.
How did British rule in India transform persons from lower social classes? Could Indians from such classes rise in the world by marrying Europeans and embracing their religion and customs? This book ...explores such questions by examining the intriguing story of an interracial family who lived in southern India in the mid-nineteenth century. The family, which consisted of two untouchable brothers, both of whom married Eurasian women, became wealthy as distillers in the local community. A family dispute resulted in a landmark court case, Abraham v. Abraham. Chandra Mallampalli uses this case to examine the lives of those involved, and shows that far from being products of a 'civilizing mission' who embraced the ways of Englishmen, the Abrahams were ultimately - when faced with the strictures of the colonial legal system - obliged to contend with hierarchy and racial difference.
ABSTRACT
Firms face a greater risk of lawsuits for overstated rather than understated earnings or net assets, suggesting conservatism can reduce firms' expected legal costs. Because managers with ...legal expertise are more likely than other managers to recognize the legal benefits of conservatism, this study examines whether legal expertise among members of senior management promotes greater conservatism. Consistent with this prediction, we find that firms with a general counsel (GC) in senior management (our proxy for legal expertise) report more conservatively. We also find that GC firms recalibrate their conservatism levels in response to changes in the legal environment—their conservatism choices are more responsive to litigation against peer firms and to two judicial rulings that affected the litigation risk for firms located in the Ninth Circuit. Overall, our findings suggest that populating senior management with legal experts affects the extent to which a firm's level of conservatism incorporates legal risks.
Data Availability: Data are available from public sources identified in the text.
JEL Classifications: K40; M41.
In late 1930, on a secluded mountain overlooking the rural paddy fields of British Burma, a peasant leader named Saya San crowned himself King and inaugurated a series of uprisings that would later ...erupt into one of the largest anti-colonial rebellions in Southeast Asian history. Considered an imposter by the British, a hero by nationalists, and a prophet-king by area-studies specialists, Saya San came to embody traditional Southeast Asia's encounter with European colonialism in his attempt to resurrect the lost throne of Burma.The Return of the Galon Kinganalyzes the legal origins of the Saya San story and reconsiders the facts upon which the basic narrative and interpretations of the rebellion are based. Aung-Thwin reveals how counter-insurgency law produced and criminalized Burmese culture, contributing to the way peasant resistance was recorded in the archives and understood by Southeast Asian scholars.This interdisciplinary study reveals how colonial anthropologists, lawyers, and scholar-administrators produced interpretations of Burmese culture that influenced contemporary notions of Southeast Asian resistance and protest. It provides a fascinating case study of how history is treated by the law, how history emerges in legal decisions, and how the authority of the past is used to validate legal findings.
SUMMARY
We investigate whether the concern of shareholder litigation motivates auditors to disclose internal control weaknesses. We document that issuing adverse internal control opinions reduces the ...likelihood of auditors being named with their clients as defendants in shareholder lawsuits. This finding suggests that auditors can reduce their legal liability arising from failed financial statement audits by increasing the quality of internal control audits. Consistent with this expectation, we find that auditors are more likely to issue such opinions in a timely manner for clients with higher ex ante litigation risk. Overall, our evidence suggests that the threat of litigation provides an incentive rather than a disincentive for auditors to issue adverse internal control opinions for clients with higher litigation risk.
Data Availability: The data are available from public sources indicated in the paper.
JEL Classifications: M42; K41.
The American Foreign Corrupt Practices Act (FCPA), which aims to fight corruption of foreign officials, applies under some circumstances to foreign firms located outside the United States. Empirical ...evidence shows that when the Department of Justice or the Securities and Exchange Commission opens a case for an alleged violation of the FCPA against a foreign firm, the latter systematically accepts to settle. We argue that the structure of the pretrial phase led by the prosecutor results in a settlement even when a trial would have led to a more favorable outcome for the defendant. We use a Contest Success Function
á la
Tullock that we modify to capture the specificities of the procedure under the FCPA. First, we consider the parties’ expenditures during the ‘bargaining process (as opposed to the actual litigation costs) determine the outcome of the trial. Second, we assume that the effect of the prosecuting authority’s expenditures on the probability of winning in case of trial is stronger than that of the defendant’s. We show that in this framework, the case is always settled out of court. Systematic settlement entails a social cost which consists in the total absence of case law regarding the extraterritorial effect of the FCPA.
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