Litigation Strategy Research Articles

Why and How Do Prison Litigation Strategies and Their Cultures Matter?

Abstract This article highlights the main impediments and inequalities in access to justice for prisoners. Access to justice is considered by European institutions to be one of the vehicles for transforming legislation for better respecting human rights. However, we show that the nature and intensity of strategic litigation depend on three main prison litigation models. These models differentially impact access to justice for prisoners through three main obstacles—deterrence, procedural obstacles and legal aid. Hence, by forging the concept of differentiated litigation, this article calls attention to the different ways in which prison litigation is carried out on the ground and how these lead to different impacts on the barriers to access to justice.

It Takes a Movement: Lawyers, Litigation, and Legal Theory in the Attack on Campaign Finance Reform

Abstract Recent Supreme Court decisions have hobbled campaign finance regulation and placed significant constitutional constraints on possible future reforms. But the Supreme Court has not acted alone. Major constitutional changes often require a substantial legal and political infrastructure, an ecosystem of actors, ideas, strategies, and tactics to instantiate new constitutional doctrine into law. In Big Money Unleashed, Ann Southworth examines the composition, development, organization, and intellectual underpinning of the legal movement that has worked to cripple campaign finance regulation. She chronicles the raising and testing of the key legal theories; the sources of political and financial backing for the movement; the combination of disparate groups into an antireform coalition; and the organization of what has proven to be a very effective litigation strategy. The result, she explains, has been the ascendancy of a powerful constitutional discourse that treats money as speech, campaign spending as freedom, and government regulation as censorship. The antireform litigation campaign on its own would not have been enough to transform the law; key appointments to the Supreme Court were essential. But the movement provided the Court with the cases, the arguments, and broader political support that are part of constitutional change.

Inter-firm patent litigation networks: a study of network motif analysis

Despite the recent complex intertwining of firms in fierce intellectual property disputes, the formation mechanisms of patent infringement litigation relationships between firms have been little studied from a network science perspective. We construct an inter-firm patent litigation network using longitudinal data on patent infringement litigation and the firms involved in the US, and examine its structural characteristics and the mechanisms of tie formation through network motif analysis, linking it to existing knowledge on negative ties. The results reveal the significant influence of mechanisms such as homophily, popularity, and activity on network formation, with reciprocity emerging as a pivotal factor. The absence of triadic closure is also observed. This distinct structural pattern is consistent across different technological fields and throughout the 20-year period. Furthermore, our analysis delves into the rapid countersuit strategies common within this network and provides valuable insights into patent litigation strategies between firms.

Transforming the Rule of Law in Environmental and Climate Litigation: Prohibiting the Arbitrary Treatment of Future Generations

Abstract This article maps the shared legal anatomy of climate and environmental lawsuits, in which plaintiffs claim protection for future generations before domestic or international courts. By closely analyzing the litigation strategies of plaintiffs and the inquiry of courts, the article argues that these proceedings revolve around structurally similar legal standards across domestic and international jurisdictions, which correspond to five normative requirements flowing from the rule of law: namely, respect for human rights, certain quality of law requirements, prohibition of arbitrary exercise of governmental powers, non-discrimination, and access to justice. The cross-jurisdictional analysis shows that courts appear to be increasingly willing to protect future generations against arbitrary treatment by present-day decision makers. The article appraises whether such an intergenerationally sensitive reinterpretation of the rule of law could help to change the short-termist paradigm of environmental and climate law.

Understanding the Rivalry Among Telecommunication Companies in the Cross-Border Patent Infringement: An Evolutionary Social Network Analysis

Understanding the rivalry in infringement-litigation dynamics is critical for firms in the telecommunication industry. While the number of cross-border patent disputes in these years has surged owing to the globalized economy, the existing literature primarily focuses on patent disputes among telecommunication companies in the national jurisdiction. Hence, to capture the rivalry in the telecommunication industry more comprehensively, we utilize the evolutionary social network to explore the patent dispute data in the International Trade Commission (ITC), which is a crucial legal battleground for enterprises with international business. Through developing a dynamic litigation network and discussing the possible role of the positions in compliance with their interacting relationship, we illustrated that companies involved in ITC investigations can be segmented into key players, frequent respondents, strategic applicants, as well as peripheral enterprises, and the litigation strategies implicated behind four groups of firms stress the strategic nature of ITC investigations. According to the findings, this study contributes to the literature on patent litigation in the telecommunication field and social network relationships. In addition, this paper suggests that telecommunication companies should develop litigation strategies based on their positions and roles in the competition network, and policymakers need to have a deeper understanding of the competition practices in the global legal context.

Tipsy, trashed, or totalled? Lay understanding of dose-specific alcohol intoxication and the criminal justice system

ABSTRACT This online survey study explored how Australian laypeople (N = 147) define alcohol intoxication using language, standard drinks, blood alcohol concentration (BAC), and symptoms. Participants used an extensive vocabulary to describe intoxication and better understood intoxication in terms of standard drinks and symptoms compared to BAC. Lay intoxication definitions and perceived alcohol-induced impairment thresholds (memory and capacity for consent) were influenced by personal characteristics (e.g. age, personal alcohol consumption). Participants rated symptom-based evidence as most useful when evaluating a person’s intoxication status in a legal setting and welcomed expert evidence. Findings can inform litigation and educational strategies that facilitate accurate engagement with alcohol intoxication in the courtroom.

What Might Future Rights-Based Climate Litigation Look Like in Indonesia? A Preliminary Analysis

AbstractWhile there has been some climate litigations in Indonesia, a rights-based climate case has yet to emerge. On the other hand, several rights-based environmental cases have seen the light of day before the Indonesian courts, although with more failures than successes. This note explores the prospects and challenges for future rights-based climate litigation in Indonesia by reflecting on previous climate and rights-based environmental cases. At the same time, with reference to Urgenda, this note recognizes a growing global discourse on transnational climate litigation, unveiling the possibility of replicating successful climate litigation strategies from one jurisdiction to another. This note inquires into what potential plaintiffs can learn from Urgenda and previous Indonesian climate and rights-based environmental litigation to strategize future rights-based climate lawsuits before Indonesian courts.

An Unlikely Rights Revolution: Legal Mobilization in Scandinavia Since the 1970s

ABSTRACT Why have civil society groups in Scandinavia increasingly turned to legal mobilization in recent decades? In Denmark, Norway, and Sweden, a legal-political culture based on parliamentary supremacy, deferential judiciaries, strong-state corporatism, and jurisprudential scepticism towards rights talk supposedly discourages groups in civil society from seeking societal change through litigation. Yet, in all three countries, diverse groups and organizations in civil society have increasingly adopted litigation strategies for a broad range of causes. In this paper, we seek to account for how and why this shift has occurred. Drawing on socio-legal mobilization theory, we compare Denmark, Norway, and Sweden across three episodes from the 1970s to today. Litigation has gradually moved from the political margins to the mainstream. Our findings suggest that while European law, domestic institutional reforms, and a proliferating human rights discourse have opened new ways for resourceful groups and entrepreneurial individuals to challenge the status quo, parliamentary and corporatist channels remain often viable and preferred alternatives for mainstream organizations. The paper thus contributes to the emerging literature on how civil society groups in Scandinavia employ litigation strategies by offering a comparative and historical assessment and contributes to knowledge about the factors that shape legal mobilization by civil society groups.

Investigating Patent Value and Litigation Probability of Global Technology Standards

Standard-essential patent (SEP) is a patent that claims an invention that must be used to comply with a technical standard. The issues of patent infringement are often at the forefront of the strategy and planning in patent litigation. Determining an appropriate methodology for valuing a patented invention is a complex and nuanced undertaking. This is particularly true for patent cases where the accused product or service includes many overlapping features and technologies. Patent information can be used in important issues of global technological standardization in order to evaluate the competitive potential of the SEP. This article makes two major contributions: First, it compares the patent value of SEPs with that of non-SEPs. According to the results, SEPs do have higher value, which indicates the effectiveness of the SEP system supported by standard setting organizations. Second, based on comprehensive observations of litigated SEPs, a model for predicting the probability of litigation is established and the litigation probability distribution of SEPs is plotted.

The Application of Quantitative Methods in Assessing the Effectiveness of Litigation Legal Strategies - An Example of the Case Study Approach

Abstract In legal practice litigation cases, the selection of a litigation strategy significantly impacts both the litigation process and the overall outcome of the case. The study mainly applies quantitative methods to evaluate the effectiveness of legal strategies for litigation. We collect relevant legal strategy texts after analyzing relevant civil litigation cases in China. We then use text mining methods, such as regular expressions, jieba participles, and Word2Vec training word vectors, to refine high-frequency words in text data related to litigation legal strategies. This process establishes a quantitative evaluation index system for assessing the effectiveness of litigation legal strategies. We select litigation legal strategy cases as the evaluation object, utilizing the PMC index to determine and evaluate the effectiveness of each strategy. The sample litigation legal strategies have a mean PMC index of 6.69, indicating a good overall level. Only one strategy is considered acceptable, with the remaining 87.5% rated as good. Deficient litigation solutions and thought paths, with a mean value below 0.8, hinder the effectiveness of litigation legal strategies. We recommend optimizing and improving them to enhance their effectiveness.

Climate Change Litigation: A New Frontier for Environmental Law and Policy

Climate change litigation has emerged as a pivotal frontier in environmental law and policy, serving as a catalyst for transformative legal and policy responses to the complex challenges posed by global climate change. This paper presents a comprehensive framework that systematically explores the multifaceted dimensions of climate change litigation. Beginning with an overview of the current climate crisis and its impact, the paper analyzes the legal foundations at both domestic and international levels, considering key environmental law principles that underpin litigation strategies. The study categorizes climate change litigation into distinct types, highlighting landmark cases and assessing evolving legal strategies. Challenges and opportunities faced by litigants and legal systems are scrutinized, emphasizing the crucial role of non-governmental organizations and civil society in advocacy and policy influence. The paper concludes by examining policy implications, forecasting future trends, and providing recommendations for stakeholders to enhance the efficacy of climate change litigation within environmental law and policy.

10x Defends Patent Litigation Strategy after Criticism from Researchers, Rivals

10x Defends Patent Litigation Strategy after Criticism from Researchers, Rivals

Lawsuits Over the Price of Insulin—State Efforts for Insulin Access

This Viewpoint discusses the litigation strategy of state-initiated lawsuits alleging illegal and immoral conduct regarding the pricing of insulin by pharmaceutical companies and pharmacy benefit managers.

Comparative analysis of legal mechanisms to net-zero: lessons from Germany, the United States, Brazil, and China

Amid mushrooming net-zero commitments and pledges made by states and non-state entities, a gap remains between those pledges, and the action needed in order to stay within the temperature goals of the Paris Agreement. In response, scholars and policymakers have started to examine physical, technological, economic, and policy pathways to net‐zero emissions across different sectors. This article examines the existing legislation and litigation for a net-zero world in four jurisdictions: Germany, the United States, Brazil, and China. We propose a taxonomy for identifying and comparing existing legal mechanisms to reach net-zero across these jurisdictions. We identify and analyze different legislative and regulatory mechanisms that incorporate net-zero mandates and three net-zero litigation strategies in these countries. These jurisdictions provide a useful snapshot of the variety of legal mechanisms currently being used by, or imposed on, large emitting jurisdictions and entities. We then consider the critical ways in which climate law can contribute to, or hinder, emissions reductions in line with net-zero targets.

Tort tales and total justice: Exploring attitudes toward everyday tort claims for workplace injuries

AbstractDespite some retrenchment, the litigation state remains alive and well. All this litigation has engendered intense debates over whether increased lawsuits represent a rising tide of justice or a flood of frivolous claims. Tort law has been at the center of these debates for decades, standing at the fault line between “tort tale,” “total justice,” and “mixed” narratives about the perils and benefits of litigation. In this article, we use a survey experiment to probe attitudes toward claims for workplace injuries in light of these narratives. We find that our participants held multifaceted views. On one hand, they favored making claims over doing nothing or asking family members for help and saw lawsuits as equally appropriate as filing a government claim or hiring a lawyer to send a demand letter. On the other hand, tort tale themes cast a subtle shadow over our participants' views. When told claimants did not rush to the courts in defiance of tort tale expectations, our participants saw the lawsuit as more justified. Indeed, the more remedies exhausted prior to litigation, the more justifiable the lawsuit seemed, even though repeated denials of claims might undermine faith in their merits. The bottom line, we contend, is that attitudes toward litigation reflect not only the choice of remedy but also how remedies are used, even when the underlying claim is meritorious—a point that could be useful to practitioners and advocates as they weigh claiming options as well as litigation and public communication strategies.

A review and analysis of accountability in global health funding, research collaborations and training: towards conceptual clarity and better practice

IntroductionAccountability is a complex idea to unpack and involves different processes in global health practice. Calls for accountability in global health would be better translated to action through a better...

University patent litigation in the United States: Do we have a problem?

In an attempt to increase revenues from patenting activities, some universities have started in recent years to pursue “overzealous” strategies to monetize their existing patents, by selling them to the highest bidder and enforcing them in court. In this paper we find quantitative evidence that patent litigation has an adverse effect on university technology transfer activities, reinforcing prior findings by Shane and Somaya (2007). However, we empirically show that universities do not litigate aggressively over patent infringement: not only do they litigate much less than patent assertion entities (PAEs), but we also observe no increase in terms of their propensity to litigate over the last two decades. Nor do we find any evidence of aggressive litigation strategies.

Investor state dispute settlement (ISDS) and the social licence to operate of international business: An analysis of controversial cases

This paper analyses how the challenging of regulation by multinational enterprises through the investor state dispute settlement (ISDS) process impacts the social licence to operate (SLO) of international business (IB). Drawing on the analyses of controversial ISDS cases, it makes four key contributions. First, it proposes a framework for better understanding SLO and presents strong evidence that the use of ISDS has undermined SLO, not only of the involved companies, but also of IB more widely. Second, it extends the literature on corporate political activity (CPA) by drawing attention to the importance of litigation strategies, largely ignored in prior research. Third, it contributes to the literature on the externalities of CPA by exploring how certain tactics can undermine public trust and SLO. Last, it expands our understanding of the ‘dark side’ of CPA beyond illegal activities and government capture, to ethically questionable strategies.

The Credit Suisse collapse and international financial law

ABSTRACT The 2023 banking turmoil showed that there is still work to do on banking reforms. This is particularly true when it comes to bank resolution. This note examines the resolution of Credit Suisse and focuses specifically on its international dimension. Two issues deserve particular attention. First, the peculiar resolution action by the Swiss authorities confirms that despite a standardised global blueprint for bank resolution, banks are still ‘global in life but national in death’. Second, the litigation strategies of AT1 investors present some interesting developments, notably the use of investor-state dispute settlement.

Bariatric Surgery and Malpractice: an Extensive Review of Demographics, Complications, Litigation, and Proactive Mitigation Strategies.

The rising prevalence of severe obesity has led to a parallel increase in bariatric surgeries, raising a complex array of medicolegal issues. This review aims to analyze and synthesize literature on bariatric surgery malpractice, focusing on patient demographics, surgical complications, litigation costs, and the nature of malpractice cases. A systematic search was conducted across multiple databases for relevant studies published up to May 2023. Our review endeavors to provide insights into these medicolegal challenges and their implications and foster an informed dialogue on strategies for their effective management. By doing so, we hope to enhance ethical and legally sound bariatric practices, safeguarding both patient welfare and surgical practitioners from legal repercussions.