Think first of the classic problem of redundant punitive damages: A defendant has caused a mass tort. Plaintiff 1 sues, winning punitive damages based on the overall reprehensibility of that original act. Plaintiff 2 also sues — and also wins punitive damages on the same grounds. So do...

In areas as diverse as copyright, pollution, consumer protection, and electronic privacy, statutory damages have become a familiar form of civil remedy. Yet as judges are discovering, these formulaic awards can swing by orders of magnitude for no good reason — due to the rigidly linear way in...

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the...

The growth of “litigation finance” — the funding of lawsuits by outside investors who are neither parties nor counsel — is being closely watched by academics, the press, and the bar. The practice poses risks of conflicting interests and improper influence; and yet if carefully managed it...

For over a quarter century, legal arguments about segregation, discrimination, and affirmative action have invoked the image of the "inexorable zero" - complete absence of any women or minorities at a given school or workplace. Yet as evocative as the phrase might be, its precise doctrinal...