Judicial Process

Trevor W. Morrison & Julie B. Ehrlich
The Honorable Jonathan Lippman
Jay Thornton
The United States spends substantially more as a percentage of GDP on legal services than most other countries. Simultaneously, various indicators suggest this outsized spending does not result in public perceptions of greater fairness or justice. While the digital automation of legal work offers the potential to help address this problematic paradigm, the legal academy’s reception of automation in law has been critical. This Note responds to these criticisms by showing the demonstrable objective and subjective fairness benefits that legal automation can achieve—all while reducing costs.
 
Linda J. Silberman & Aaron D. Simowitz

In Daimler AG v. Bauman, the Supreme Court confirmed what it had only hinted at previously—that general jurisdiction over a corporation is limited only to a state which can be regarded as its “home.” In doing so, the Court brought the United States closer to the rest of the world in its approach to general jurisdiction. What may have been overlooked, however, is the impact of Daimler on actions brought to recognize and enforce foreign country judgments and foreign arbitral awards if the Daimler standard is applied in that context. Some courts have already done so. Professors Silberman and Simowitz offer an overview of the present jurisdictional regimes for recognition and enforcement actions with respect to both foreign judgments and arbitral awards. Their own analysis concludes that a jurisdictional nexus should be required for recognition and enforcement but that the context of recognition and enforcement presents unique differences from a plenary action. Thus, they argue that Daimler needs to be tailored to fit such actions. Professors Silberman and Simowitz also examine various alternative bases of jurisdiction—property-based jurisdiction, specific jurisdiction, and consent—that may be pressed into service if Daimler is extended to recognition and enforcement actions, and find both promise as well as limits in those alternatives.

J.J. Prescott & Kathryn E. Spier

A settlement is an agreement between parties to a dispute. In everyday parlance and in academic scholarship, settlement is juxtaposed with trial or some other method of dispute resolution in which a third-party factfinder ultimately picks a winner and announces a score. The “trial versus settlement” trope, however, represents a false choice; viewing settlement solely as a dispute-ending alternative to a costly trial leads to a narrow understanding of how dispute resolution should and often does work. In this Article, we describe and defend a much richer concept of settlement, amounting in effect to a continuum of possible agreements between litigants along many dimensions. “Fully” settling a case, of course, appears to completely resolve a dispute, and if parties to a dispute rely entirely on background default rules, a “naked” trial occurs. But in reality virtually every dispute is “partially” settled. The same forces that often lead parties to fully settle—joint value maximization, cost minimization, and risk reduction—will under certain conditions lead them to enter into many other forms of Pareto-improving agreements while continuing to actively litigate against one another. We identify three primary categories of these partial settlements: award-modification agreements, issue-modification agreements, and procedure-modification agreements. We provide real-world examples of each and rigorously link them to the underlying incentives facing litigants. Along the way, we use our analysis to characterize unknown or rarely observed partial settlement agreements that nevertheless seem theoretically attractive, and we allude to potential reasons for their scarcity within the context of our framework. Finally, we study partial settlements and how they interact with each other in real-world adjudication using new and unique data from New York’s Summary Jury Trial Program. Patterns in the data are consistent with parties using partial settlement terms both as substitutes and as complements for other terms, depending on the context, and suggest that entering into a partial settlement can reduce the attractiveness of full settlement. We conclude by briefly discussing the distinctive welfare implications of partial settlements.

Pages