This essay on discovery will be a chapter in the Procedural Law and Economics volume forthcoming from Edward Elgar. It reviews the law-and-economics literature on discovery, current as of 2008 (when I wrote the chapter). It first situates discovery in the broader context of incentives to...

Adequacy of representation is a central concept in the law of case aggregation. Yet proceduralists today, some seventy years after the germinal case of Hansberry v. Lee, still lack a clear understanding of what representation means in adjudication and why a nonparty can be bound on a...

This Article critically examines the core infringement standard for trademark law — the likelihood-of-confusion test — which imposes liability if an appreciable number of consumers are likely to be confused by the defendant's use of its mark. The test is a mess. It produces bad results, is...

This Article addresses the normative issues raised by the use of statistical sampling to adjudicate large case aggregations. In its recent decision, Wal-Mart Stores, Inc. v. Dukes, the Supreme Court referred to sampling pejoratively as “Trial by Formula.” This Article argues that the...

Notice is important in intellectual property law, but notice works differently in trademark law than in copyright and patent. Trademark law is not based on a property theory and the rights it creates are not property rights in the usual sense. As a result, the costs of notice failure are not...

This essay is a contribution to a symposium on Professor Ronald Dworkin's forthcoming book, JUSTICE FOR HEDGEHOGS. The essay asks whether procedural rights make sense in American civil litigation, where “right” is understood in the Dworkinian sense of limiting, resisting, or trumping...