Multiple Defendants Research Articles

Dogfight in Spectrum: Combating Primary User Emulation Attacks in Cognitive Radio Systems, Part I: Known Channel Statistics

In cognitive radio systems, primary user emulation (PUE) attack means that an attacker sends primary-user-like signals during the spectrum sensing period such that honest secondary users leave the corresponding channels, which causes a serious threat to cognitive radio systems. A passive anti-PUE approach, similar to the random frequency hopping in traditional anti-jamming schemes, is proposed and called dogfight in spectrum. In this scheme, the defenders randomly choose channels to sense and avoid the PUE attack. It is assumed that the channel statistics like availability probabilities are known; then the PUE attack and the random hopping are modeled as a zero-sum game between the attacker and defending secondary user(s). The Nash equilibrium of the game is found. The anti-jamming efficiency is also obtained. Numerical simulations demonstrated the performances of the proposed schemes for both the single defender, multiple defender and multiple round cases.

The role of contribution among defendants in private antitrust litigation

The incidence of private actions for damages in antitrust cases has varied markedly across jurisdictions. The procedural rules surrounding private litigation may account for some of these differences. This paper explores the effect of rules concerning contribution among multiple defendants who are jointly and severally liable for a cartel infringement. The no-contribution rule is shown to lead to higher levels of aggregate damages and more information revelation to the private plaintiff. However the no-contribution rule also has the potential to neutralise any public leniency programme, thereby possibly reducing the number of cartels detected.

Secrecy and fairness in plea bargaining with multiple defendants

I consider a model of plea bargaining with multiple codefendants. I mainly compare the equilibrium outcomes under joint negotiations whereby both defendants can observe both plea offers and under separate (secret) negotiations whereby they can observe only their own respective offer. Contrary to the widespread perceptions, the prosecutor is made worse off under secret negotiations or at best as well off as under joint negotiations. I also discuss the implication of equilibrium offers on fairness.

Principle of robotic surgery litigation in the United States

After a robotic surgical misadventure in the United States, the subsequent litigation often involves a medical malpractice action against the surgeon and the hospital, and a products liability action against the robotic surgical instrument manufacturer. Because of the multiple Defendants, finger-pointing is common and results in a settlement. However, metadata within the robotic instrument may provide the manufacturer with a strong defence against liability. Accordingly, metadata within the computer may result in hospitals and surgeons shouldering more of the liability for robotic surgical misadventures.

Defense Costs and Insurer Reserves in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988-2004

We study defense costs for commercially insured personal injury tort claims in Texas over 1988�2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers� hourly rates. We study medical malpractice (med mal) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense counsel are flat. Defense costs in med mal cases correlate strongly with payouts, both in ordinary least squares (OLS) and in an instrumental variable analysis. They also correlate with the stage at which a case is resolved, and case duration. Mean duration declined over time. Med mal insurers predominantly use outside counsel. Case-level variation in initial expense reserves predicts a small fraction of actual defense costs. In other areas of tort litigation (auto, general commercial, multi-peril, and other professional liability), defense costs rose by 2.2 percent per year. Defense costs in these cases are predicted by the same factors as in med mal cases, plus the presence of multiple defendants. Insurer reserving practices raise some puzzles. Med mal insurers did not react to the sustained rise in defense costs by adjusting their expense reserves, either in real dollars or relative to reserves for payouts. Thus, expense reserves declined substantially relative to defense costs. In other litigation areas, expense reserves rose along with defense costs.

The Role of Contribution Among Defendants in Private Antitrust Litigation

To date the experience of the incidence of private actions for damages in antitrust cases has differed markedly across jurisdictions. The procedural rules surrounding private litigation may account for some of these differences. This paper explores the effect of rules concerning contribution among multiple defendants who are joint and severally liable for a cartel infringement. The no-contribution rule is shown to lead to higher levels of aggregate damages and more information revelation to the private plaintiff. However, the no-contribution rule also has the potential to neuter any public leniency programme, thereby possibly reducing the number of cartels detected.

The Massie (Honor Killing) Trials 1931-32

Two dramatic criminal trials, one for rape and one for murder and both involving multiple defendants, forever changed the nature of Hawaiian race relations and politics. Filled with twists and turns and unanswered questions, the trials have all the elements of a good mystery. The second of the so-called Massie Affair trials also closes out the courtroom career of America's greatest defense attorney, Clarence Darrow. No trials ever had a more significant effect on a state's history than those that shocked and shook Hawaii in 1931 and 1932.

Signal Jamming in Pretrial Negotiation with Multiple Defendants

This article analyzes the pretrial settlement process among an uninformed plaintiff and multiple defendants who share information about the winning chances of their cases. We show that when the chances are negatively correlated, cross-type subsidization occurs to circumvent the possibility of signal jamming, that is, the settlement offer of a strong defendant (a weak defendant) is distorted upward (downward), as far as the no-distortion equilibrium is not viable. In this equilibrium, the plaintiff settles with defendants with probability one.

A 12-year follow-up study of malpractice claims against radiologists in Italy

Malpractice claims filed against radiologists have become a relevant phenomenon in Italy and are a real risk in the radiologists' professional activity. Insurance claims of Italian radiologists over the 1993-2004 period were anonymously assessed. A total of 990 insurance claims were classified according to cause: (1) missed diagnosis, (2) complications of the radiological procedure, (3) failure to order further radiological examinations, (4) radiation treatment, (5) slip-and-fall injuries, (6) miscellaneous causes. A total of 990 claims were filed during the period, with most claims being filed a considerable time after the event. As a consequence, the estimated incidence may be 44 per 1,000. In other words, 44% of Italian radiologists have received, or will receive, a summons regarding their professional activity of the past 10 years. Misdiagnosis made up the first and most important claim category. Missed abnormalities on breast radiographs accounted for the greatest percentage of cases. Missed bone abnormalities were the following most common diagnostic errors. Complications following interventional procedures accounted for 10% of all cases. A few cases resulted from the radiologist's failure to order further diagnostic examinations. Lastly, radiologists were frequently named as one of multiple defendants, together with medical (or surgical) doctors, in cases of patient death in roughly 6% of all cases. The risk of medical malpractice litigation for Italian radiologists is by now comparable to that for American radiologists. Strict adherence to radiological standards may be a means of reducing the risk of legal action and obviating litigation.

The legal and economic forces that will shape the international market for cybersurgery

Despite the common use of medical devices most health care providers have little understanding how a device alters medical malpractice litigation. Such knowledge will be increasingly valuable as cybersurgery (i.e. remote robotic surgery) becomes routine. Review of the laws governing products and telecommunication liability. Litigation after cybersurgery will be complex. In addition to being able to sue physicians and hospitals, patients who sustain an adverse outcome after cybersurgery will have the potential to sue the robotic manufacturer and telecommunication company. Robotics manufacturers can obtain virtual immunity from liability if they elected to place their devices on the market after obtaining [see text]360 per-market approval from the FDA. However, because [see text]360 pre-market approval is expensive and time consuming most medical devices on the market (including the robotic surgical instruments) do not have immunity to products liability. Consequently, after an adverse cybersurgical outcome a manufacturer of a robotic surgical instrument faces liability for failure to warn, design defects, and failure to properly manufacture. As for telecommunication providers, existing law provides them with immunity from liability. Litigation following cybersurgery will involve multiple defendants who are likely to use "finger pointing" defenses. Accordingly, there will be liability traps associated with providing cybersurgery.

Monetary Lessons from Litigation Involving Laparoscopic Cholecystectomy

Limited information exists on the relationship between adverse events associated with laparoscopic cholecystectomy (LC) and subsequent litigation. Out of 104 suits concerning LC, 18 cases were settled for 628,138 dollars; 48 cases resulted in a plaintiff's verdict with the plaintiff receiving 2,891,421 dollars; and 18 cases resulted in a surgeon's verdict. However, when multiple defendant cases were excluded, there was <20,000 dollars difference between a negotiated settlement and plaintiff's verdict. Given the minimal monetary differences between a settlement and a plaintiff's verdict, when a surgeon is the sole defendant in a malpractice case concerning LC, the surgeon should encourage their carriers not to settle before trial; as only a trial will exonerate the surgeon. However, this encouragement should be tempered when there are "red flags" that favor the plaintiff, including multiple defendants (especially a hospital), male plaintiffs, bile duct injuries, knowledgeable and well-financed plaintiff's attorneys, and certain plaintiff's venues.

The Judge and the Discharged Clerk Revisited

were not satisfied in this case, so the lower court could not use that rule to sever ADM from the other defendants. However, Judge Posner argued that there were compelling reasons to allow the lower court to impanel two juries, with one to be excluded dur ing admission of the damaging evidence against ADM. First, this strategy of trial administration had not infrequently been used in criminal trials involving multiple defendants. Second, courts' ability in civil suits to impanel multiple juries "has not been denied"; in fact, a court had used it once before, in Martin v. Bell Helicopter Co., 85 F.R.D. 654 (D.Colo. 1980). Third, judges in civil trials must administer the rules "in a way that will minimize the likelihood that the jury's verdict will be a product of confusion or inappropriate emotion." 361 F.3d at 441. Indeed, according to Judge Posner, "Imaginative procedures for averting jury error, as long as they do not violate any legal norm, are to be encouraged rather than discouraged." Id. As to the possibility that the separate juries could render inconsistent verdicts, with one jury finding ADM guilty of conspiracy to fix prices but the other jury find ing that the remaining defendants did not conspire, thus making a conspiracy on ADM's part legally impossible, Judge Posner suggested that such inconsistency would not be fatal. Rather, any discrepancy likely would be due to the fact that the differ ent juries heard different evidence, so that "the inconsistency would be in result rather than in logic." Id.

"Which One of You Did It?" Criminal Liability for "Causing or Allowing" the Death of a Child

The English parliament recently enacted legislation to solve the problems inherent in prosecuting multiple defendants in a child homicide case. Part II of this article analyzes how current U.S. criminal law addresses the problem of securing a homicide conviction where multiple defendants are accused in a child's non-accidental death. Part III sets forth the English response: a statute that includes (1) a new substantive crime; (2) a permissible negative inference against a defendant who fails to account for the nonaccidental death of a child for whom he or she is responsible; and (3) delay of a motion to dismiss for failure to establish a prima facie case until after the defense has been presented or the jury has been allowed to draw the negative inference. The English response in light of U.S. law is analyzed, and its efficacy in meeting the prosecutor's evidentiary problems is evaluated. The article concludes that the English response should be adopted here, despite the controversial proposal that the jury in such a case be allowed to draw a negative inference against a defendant who bears responsibility for a child, who fails to account for that child's non-accidental death.

Standing to Sue and Multiple Defendant Class Actions in Australia, Canada, and the United States

Recent decisions by appellate courts in Australia, Canada, and the United States provide an ideal opportunity to explore an important issue concerning the class action procedure, which has been largely ignored by legal commentators in Australia and Canada and has received, in the author's opinion, inadequate attention in the United States. The issue in question concerns the availability of the class action device where the representative plaintiff is seeking to initiate a class proceeding against more than one defendant but does not have individual standing to sue all of the proposed defendants.

“Tied to the Mast”: Most‐Favored‐Nation Clauses in Settlement Contracts

Abstract Many settlement contracts in lawsuits that involve either multiple plaintiffs or multiple defendants include so‐called most‐favored‐nation (MFN) clauses. If a defendant who faces multiple claims, for example, settles with some plaintiffs early and settles with additional plaintiffs later for a greater amount, then the early settlers will receive the more favorable terms as well. This paper presents two frameworks for evaluating the private and social desirability of MFN clauses. First, MFN clauses can mitigate asymmetric‐information problems and encourage cases to settle earlier. While avoiding delayed settlement is privately and socially desirable, it is shown that the litigation rate may rise. Second, MFN clauses may be used as a bargaining tool for extracting value from future plaintiffs, leading to breakdowns in future negotiations. In both frameworks, the private incentives to use MFN clauses may diverge from the interests of society as a whole.

The Use of "Most-Favored-Nation" Clauses in Settlement of Litigation

Author(s): Spier, Kathryn E. | Abstract: Many settlement agreements in lawsuits involving either multiple plaintiffs or multiple defendants include so-called most-favored-nation clauses. If a defendant facing multiple claims, for example, settles with some plaintiffs early and settles with additional plaintiffs later for a greater amount, then the early settlers will receive the more favorable terms as well. These MFN provisions have been prominent in the recent MP3.com case, as well as tobacco litigation, class actions, and many antitrust lawsuits. This paper considers a defendant who is facing a large group of heterogeneous plaintiffs. Each plaintiff has private information about the (expected) award that he or she will receive should the case go to trial. MFN clauses are valuable because they commit the defendant not to raise his offer over time. This has two important effects. First, holding overall settlement rate fixed, MFNs encourage earlier settlement. Second, depending upon the distribution of plaintiff types, MFNs can either increase or decrease the overall settlement rate. Social welfare implications are discussed, and alternative theories, including the strategic use of MFNs to extract value from future plaintiffs, are explored.

The Use of 'Most-Favored-Nation' Clauses in Settlement of Litigation

Many settlement agreements in lawsuits involving either multiple plaintiffs or multiple defendants include so-called most-favored-nation clauses. If a defendant facing multiple claims, for example, settles with some plaintiffs early and settles with additional plaintiffs later for a greater amount, then the early settlers will receive the more favorable terms as well. These MFN provisions have been prominent in the recent MP3.com case, as well as tobacco litigation, class actions, and many antitrust lawsuits. This paper considers a defendant who is facing a large group of heterogeneous plaintiffs. Each plaintiff has private information about the (expected) award that he or she will receive should the case go to trial. MFN clauses are valuable because they commit the defendant not to raise his offer over time. This has two important effects. First, holding overall settlement rate fixed, MFNs encourage earlier settlement. Second, depending upon the distribution of plaintiff types, MFNs can either increase or decrease the overall settlement rate. Social welfare implications are discussed, and alternative theories, including the strategic use of MFNs to extract value from future plaintiffs, are explored.

The Ambidextrous Lawyer: Conflict of Interest and the Medieval Legal Profession

In the medieval era, ambidexterity, the medieval term for conflict of interest, appeared in two primary contexts: lawyer discipline and the civil liability of lawyers to victims of their misconduct. This paper studies ambidexterity, a common form of medieval lawyer misconduct, in these two contexts. The paper examines the medieval regulation of ambidexterity by analyzing the different types of conflicts, the specific loyalty duties and their rationales, and the sanctions applied. Finally, the analysis identifies the ways in which medieval conflict of interest regulation is both similar to and dissimilar from its modern treatment. The paper identifies about 75 cases, arising primarily from 1278-1400, which were classified for discussion into five categories: switching sides in the same litigation (classic ambidexterity), adversity to a former client, adversity to a client on an unrelated matter, simultaneous representation of multiple plaintiffs or defendants, and conflicts with a lawyer's personal interest. The paper concludes that these judicially developed loyalty norms were strongest and most commonly and strictly applied to classic ambidexterity, but that loyalty duties were also owed to former clients. In both categories, protection of confidentiality played an important role. Loyalty norms also arose with regard to adversity to client on an unrelated matter, but differently as it was created consensually through contractual retainers, not by judicial or regulatory fiat. Implementation of these norms occurred in lawyers' suits for arrearages in the annuities owed by clients. Potential conflicts of interest, simultaneous representation of multiple parties, were not treated as problematic and no loyalty norms arose in such cases. Nor were conflicts with a lawyer's personal interest considered a significant problem. Finally, although the medieval cases revealed interesting similarities with modern conflict of interest regulation, the differences were more pronounced. The medieval conduct was more egregious, the loyalty duties narrower, and the remedies more limited although more punitive. The paper then considers the civil liability of lawyers to victims of ambidexterity. This portion of the paper begins with a preliminary survey of the evolution of the civil liability of lawyers. The discussion then moves to an analysis of about 30 cases involving civil liability. The paper concludes, based on this subset of cases involving ambidexterity, that the civil liability of lawyers evolved apart from the development of negligence based liability and that the civil liability of lawyers was more limited in several respects than its modern counterpart. The paper concludes with some general conclusions regarding the medieval treatment of ambidexterity and by suggesting further areas of useful research.

Settling Multidefendant Lawsuits: The Advantage of Conditional Setoff Rules

In cases involving multiple defendants, each defendant's incentive to settle is influenced by the setoff rule enforced in the relevant jurisdiction. This article suggests that the effect of a setoff rule depends on whether the setoff is conditional on a finding that the settling defendant or defendants were legally liable. Previous research, which assumed that the setoff was unconditional, found that the two principal rules applied by modern courts--the pro tanto and proportionate share rules--often discourage settlement when the plaintiff's probabilities of prevailing against each defendant are not perfectly correlated. This article shows that the disincentive to settlement can be reduced or eliminated by making the setoff conditional on the liability of the settling defendant or defendants. The conditional setoff rules are of practical as well as theoretical interest because several states currently apply them.

A Note on Joint and Several Liability: Insolvency, Settlement, and Incentives

Previous articleNext article No AccessA Note on Joint and Several Liability: Insolvency, Settlement, and IncentivesKathryn E. SpierKathryn E. Spier Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 23, Number S1Jan., 1994Economic Analysis of Civil Procedure Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467935 Views: 5Total views on this site Citations: 14Citations are reported from Crossref Copyright 1994 The University of ChicagoPDF download Crossref reports the following articles citing this article:Claudia M. Landeo and Kathryn E. Spier Optimal Law Enforcement with Ordered Leniency, The Journal of Law and Economics 63, no.11 (Apr 2020): 71–111.https://doi.org/10.1086/705829Jeong-Yoo Kim, Seewoo Lee Apportionment of liability by the stochastic Shapley value, International Review of Law and Economics 60 (Dec 2019): 105860.https://doi.org/10.1016/j.irle.2019.105860Nathan Berg, Jeong-Yoo Kim Plea bargaining with multiple defendants and its deterrence effect, International Review of Law and Economics 55 (Sep 2018): 58–70.https://doi.org/10.1016/j.irle.2018.04.002Howard F. Chang, Hilary Sigman An Empirical Analysis of Cost Recovery in Superfund Cases: Implications for Brownfields and Joint and Several Liability, Journal of Empirical Legal Studies 11, no.33 (Jul 2014): 477–504.https://doi.org/10.1111/jels.12047Daniel Carvell, Janet Currie, W. Bentley MacLeod Accidental death and the rule of joint and several liability, The RAND Journal of Economics 43, no.11 (Mar 2012): 51–77.https://doi.org/10.1111/j.1756-2171.2012.00158.xHoward F. Chang, Hilary A. Sigman An Empirical Analysis of Cost Recovery in Superfund Cases: Implications for Brownfields and Joint and Several Liability, SSRN Electronic Journal (Jan 2010).https://doi.org/10.2139/ssrn.1640680Jeong-Yoo Kim Secrecy and fairness in plea bargaining with multiple defendants, Journal of Economics 96, no.33 (Oct 2008): 263–276.https://doi.org/10.1007/s00712-008-0047-6Howard F. Chang, Hilary Sigman The effect of joint and several liability under superfund on brownfields, International Review of Law and Economics 27, no.44 (Dec 2007): 363–384.https://doi.org/10.1016/j.irle.2007.05.001Jeong-Yoo Kim, Joon Song Signal Jamming in Pretrial Negotiation with Multiple Defendants, Journal of Economics 91, no.22 (Mar 2007): 177–200.https://doi.org/10.1007/s00712-006-0254-yKathryn E. Spier Chapter 4 Litigation, (Jan 2007): 259–342.https://doi.org/10.1016/S1574-0730(07)01004-3Yeon-Koo Che, Kathryn E. Spier Exploiting Plaintiffs Through Settlement: Divide and Conquer, SSRN Electronic Journal (Jan 2007).https://doi.org/10.2139/ssrn.1009360Andrew F. Daughety, Jennifer F. Reinganum ECONOMIC THEORIES OF SETTLEMENT BARGAINING, Annual Review of Law and Social Science 1, no.11 (Dec 2005): 35–59.https://doi.org/10.1146/annurev.lawsocsci.1.041604.115856Lewis A. Kornhauser, Richard L. Revesz Joint and Several Liability, (Jan 2017): 1029–1034.https://doi.org/10.1007/978-1-349-74173-1_195Kathryn E. Spier, Alan O. Sykes Capital structure, priority rules, and the settlement of civil claims, International Review of Law and Economics 18, no.22 (Jun 1998): 187–200.https://doi.org/10.1016/S0144-8188(98)00005-2