Enforcing the Bargain v. Materiality Requirement: The Future of Disclosure-Only Settlements Post-Trulia

In In re Trulia, Inc. Stockholder Litigation, the Delaware Court of Chancery broke away from its tradition of routinely approving disclosure-only settlements and required disclosures to be material in order to cure the conflict of interest between plaintiff’s counsel and the plaintiff class. I argue that fairness of settlement is the only standard in approving class action settlements and fairness will not be achieved by requiring materiality. Shareholders are legally entitled to all material information, as the board’s fiduciary duty dictates. Thus, material disclosures are enforcement of a legal duty that is no consideration for the release of shareholder claims. On the other hand, fairness could be achieved by enforcing the bargain if the bargaining process was conducted fairly and in good faith. The agency problem and the conflict of interest between the plaintiff’s counsel and the plaintiff class can be resolved by judicial assessment on whether there was adequate representation based on the effort of the plaintiff’s counsel and the appropriate attorney fee award according to the well-established three-scale system in quantifying the appropriate attorney fees. In addition, overbroad releases can be rescinded under the contract doctrines of fraud and unconscionability if such settlements were fraudulently induced or the release is overbroad compared to the benefit that the disclosures conveyed

Court Mediation and the Search for Justice Through Law

The trend toward court mediation is remarkable because our civil justice system has traditionally promised justice through law. The promise of mediation is different: Justice is derived, not through the operation of law, but through autonomy and self-determination. When mediation occurs in court, significant policy questions arise: What happens to law? To justice? Do they collapse in the experience of self-determination? If so, what then happens to the promise of justice through law, particularly where one or both of the parties are not represented by lawyers? These are the questions I address in this article. Part I of this Article traces the development of court mediation over the past twenty years. Part II begins to explore the normative question of what role law should play in court mediation and presents two case studies from a court mediation project. These studies provide the framework for discussion in the remainder of the article. Part III considers the predominant positions concerning the relationship between law and mediation; particularly, criticism that law is excluded from the mediation process. Part III also discusses the merits of including law in the mediation process. Part IV calls for greater understanding of the meaning of justice in court mediation

Self-Serving Assessments of Fairness and Pretrial Bargaining

A persistently troubling question in the legal-economic literature is why cases proceed to trial. Litigation is a negative-sum proposition for the litigants-the longer the process continues, the lower their aggregate wealth. Although civil litigation is resolved by settlement in an estimated 95 percent of all disputes, what accounts for the failure of the remaining 5 percent to settle prior to trial

Above the Law: The Prosecutor\u27s Duty to Seek Justice and the Performance of Substantial Assistance Agreements

We study the gravitational-wave (GW) signatures of clouds of ultralight bosons around black holes (BHs) in binary inspirals. These clouds, which are formed via superradiance instabilities for rapidly rotating BHs, produce distinct effects in the population of BH masses and spins, and, for real fields, a continuous monochromatic GW signal. We show that the presence of a binary companion greatly enriches the dynamical evolution of the system, most remarkably through the existence of resonant transitions between the growing and decaying modes of the cloud (analogous to Rabi oscillations in atomic physics). These resonances have rich phenomenological implications for current and future GW detectors. Notably, the amplitude of the GW signal from the clouds may be reduced, and in many cases terminated, much before the binary merger. The presence of a boson cloud can also be revealed in the GW signal from the binary through the imprint of finite-size effects, such as spin-induced multipole moments and tidal Love numbers. The time dependence of the cloud's energy density during the resonance leads to a sharp feature, or at least attenuation, in the contribution from the finite-size terms to the waveforms. The observation of these effects would constrain the properties of putative ultralight bosons through precision GW data, offering new probes of physics beyond the Standard Model

Value appropriation in business exchange: literature review and future research opportunities

Purpose – Value appropriation is a central, yet neglected aspect in business exchange research. The purpose of the paper is to generate an overview of research on active value appropriation in business exchange and provide the foundation for further research into value appropriation, as well as some initial guidance for managers. Design/methodology/approach – Literatures investigating value appropriation were identified by the means of a systematic review of the overall management literature. Findings – The authors provide an overview and comparison of the literatures and find that they apply diverse understandings of the value appropriation process and emphasize different mechanisms and outcomes of value appropriation. Research limitations/implications – Based on the literature comparison and discussion, in combination with inspiration from alternative business exchange literature, the authors propose four areas with high potential for future research into value appropriation: network position effects, appropriation acts and behaviors, buyer-seller relationship effects, and appropriation over time. Practical implications – Boundary spanning managers acting in industrial markets must master the difficult balance between value creation and appropriation. This review has provided an overview of the many managerial options for value appropriation and created knowledge on the effects of the various appropriation mechanisms enabling managers to secure company rents while not jeopardizing value creation. Originality/value – To the authors’ knowledge, this paper represents the first attempt at reviewing the management literature on value appropriation in business exchange. The authors provide overview, details, comparisons, and frame a research agenda as a first step towards establishing value appropriation as a key phenomenon in business exchange research.Chris Ellegaard, Christopher J. Medlin, Jens Geersbr

Do the Haves Come Out Ahead in Alternative Justice Systems? Repeat Players in ADR

Marc Galanter\u27s essay, Why the Haves Come out Ahead: Speculations on the Limits of Legal Change (Why the Haves Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many law and . . . studies, including legal pluralism, law and society, critical legal studies, and in its own way, even law and economics studies. A seminal work in the socio-legal studies canon, Galanter\u27s article demonstrates the complex patterns of how law and legal institutions actually work, beyond descriptions of legal doctrines and assumed efficacy and penetration of law. In some senses, it is a continuation of legal realism, reminding us of the importance of studying the legal institutions in which the law is embedded and suggesting, at its end, how we might reform or adjust those institutions to produce optimal social change (in this case, redistribution of resources and delivery of justice)

Introduction & Coda, Multi-Party Dispute Resolution, Democracy and Decision Making: Vol. II of Complex Dispute Resolution

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and private processes, as well as more formal and public processes. The essays question whether the development of universal theoretical insights about conflict resolution is possible with variable numbers of parties and issues and in multi-cultural and multi-jural settings. Each volume also presents a coda, summarizing key issues in the field and suggesting further avenues for research. The second volume (and the introductory essay here) applies the theoretical foundations and practices of primary processes in dispute resolution–negotiation, mediation, arbitration and some hybrid processes in both public and private, informal and formal settings to more complex multi-party and multi issue settings, and asks whether foundational theories must be altered when there are more parties and issues. What difference do larger numbers make in theory and practice of dispute resolution and decision making? Other theoretical and empirical observations of the role of third party neutrals and facilitators in multi-party settings are explored, and applied disciplines such as game theory and decision sciences are applied to complex dispute resolution settings. Illustrations of uses of these processes in different substantive areas, e.g. legal disputes, public policy decision making, politics and governance, environmental matters, institutional relations, and high conflict settings are provided. The volume collects classic articles in multi-party, multi-issue theory and practice while interrogating the issues of how the numbers of parties and issues, different contexts and cultures challenges our efforts to create generalizable theory and practice of human conflict resolution. The review essay also discusses recent efforts to seek correspondences and learning from application of conflict resolution theory and practice to the work on deliberative democracy and political decision making. The coda suggests avenues for future research. Some attention is paid to issues of ethics and political theory, as well as evaluation of efficacy, in the use of third party facilitators in public policy and governance disputes