Joshua Paul Davis

Books

Law Review and Journal Articles

• "The Extraordinary Deterrence of Private Antitrust Enforcement: A Reply to Werden, Hammond, and Barnett," (forthcoming). (Co-authored with Robert Lande.) SSRN
• "Towards an Empirical and Theoretical Assessment of Private Antitrust Enforcement," (forthcoming). (Co-authored with Robert Lande.) SSRN
• "From Four Part Tests to First Principles: Putting Free Speech Law into Perspective," St. John's Law Review (forthcoming). (Co-authored with Professor Joshua Rosenberg.)
• "A Questionable New Standard for Class Certification in Antitrust Cases," 26 Antitrust 31 (2011). (Co-authored with Eric L. Cramer.)
• "Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws," 2011 BYU Law Review 315 (2011). (Co-authored with Robert Lande.) SSRN
• "Applying Litigation Economics to Patent Settlements: Why Reverse Payments Should Be Per Se Illegal," 41 Rutgers Law Journal 255 (2010). SSRN
• "Antitrust, Class Certification, and the Politics of Procedure," 17 George Mason Law Review 969 (2010). (Co-authored with Eric L. Cramer.) SSRN
• "The Inherent Structure of Free Speech Law," 19 William & Mary Bill of Rights Journal 131 (2010). (Co-authored with Professor Joshua D. Rosenberg.) SSRN
• "Government as Patron or Regulator in the Student Speech Cases," 83 St. John's Law Review 1047 (2010). (Co-authored with Professor Joshua D. Rosenberg.) SSRN
• "Of Vulnerable Monopolists: Questionable Innovation in the Standard for Class Certification in Antitrust Cases," 41 Rutgers Law Journal 355 (2009). (Co-authored with Eric L. Cramer.) SSRN
• "Of Myths and Evidence: An Analysis of 40 Cases for Countries Considering a Private Right of Action for Competition Law Violations," (2009). (With Robert Lande.) SSRN
• "Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases," 42 University of San Francisco Law Review  879 (2008). (Co-authored with Robert H. Lande.) SSRN
• "Some Scholarly Consensus: Modernization of the Antitrust Laws is Best Left to the Judiciary," 40 University of San Francisco Law Review 561 (2006).
• "Chimerical Class Conflicts in Federal Antitrust Litigation: The Fox Guarding the Chicken House in Valley Drug," 39 University of San Francisco Law Review 141 (2004). (Co-author | Symposium Issue)
• "Efforts to Delay Competition from Generic Drugs: Litigation Along a Seismic Fault Between Antitrust and Intellectual Property Law," 39 University of San Francisco Law Review  1 (2004). (Co-author | Symposium Issue)
• "Expected Value Arbitration," 57 Oklahoma Law Review 47 (2004). SSRN
• "Supreme Court Review of the Foreign Trade Antitrust Improvements Act: A Case of a Misleading Question?" 38 University of San Francisco Law Review 431 (2004).
• "Arbitration: Trial by Other Means or Settlement by Other Means?" 38 University of San Francisco Law Review 7 (2003). (Essay | Symposium Issue)
• "Taking Uncertainty Seriously: Revising Injunction Doctrine," 34 Rutgers Law Journal 363 (2003). SSRN
• "Virginia v. Black: Toward Neutral Principles?" 25 Dublin University Law Journal 210 (2003). (Essay)
• "Teaching Values – The Center for Applied Legal Ethics," 36 University of San Francisco Law Review  593 (2002). (Symposium Issue)
• "How Democratic is the United States Supreme Court?" 37 University of San Francisco Law Review 1 (2002). (Symposium Issue)
• "Allison v. Citgo Petroleum Corp.: A Noble Retreat," 9 Class Actions and Derivative Suits 24  (1999). (Co-authored with James M. Finberg.)
• "Toward a Jurisprudence of Trial and Settlement: Allocating Attorney’s Fees by Amending Federal Rule of Civil Procedure 68," 48  Alabama Law Review 65 (1996).
• "Cardozo's Judicial Craft and What Cases Come to Mean," 68 New York University Law Review 777 (1993).
• "The View from Half-Court," 17 Nova Law Review 799 (1993). (Co-authored with Adam Winkler.)

Book Contributions

• "Chapter 11: Indirect-Purchaser Actions," in California Antitrust Law  (State Bar of California, Antitrust and Unfair Competition Law Section, Second edition Edition 2001). (Co-authored with Joseph R. Saveri, Charles Kagay, and Francis O. Scarpulla.)
• "Chapter 23: Public Enforcement of California Antitrust Laws," in California State Antitrust and Unfair Competition Law  (State Bar of California/Matthew Bender, 2009). (Co-authored with Professor Jesse Markham.)
• "Chapter 6: Indirect-Purchaser Actions," in California Antitrust & Unfair Competition Law  (State Bar of California, Antitrust and Unfair Competition Law Section, Third edition: 2003, Fourth edition: 2005 Edition ). (Co-authored with Joseph R. Saveri and Francis O. Scarpulla.)

Opinion Pieces and Blog Posts

Other Publications

• Final Report and Recommendations, California Supreme Court Advisory Task Force on Multijurisdictional Practice (Reporter) (January 2002). (The recommendations were adopted by California Supreme Court 2002.)
• "An Imbalance of Representation: A Critique of the Antitrust Modernization Commission Recommendations Regarding Civil Remedies in Antitrust Cases," proceedings of the American Antitrust Institute’s First Annual Invitational Symposium on the Future of Private Antitrust Enforcement, Washington, D.C. (December 2007).
• "Dagher: An Admirable Exercise in Restraint," 15 Competition 27 (2006). Journal of the State Bar of California Antitrust and Unfair Competition Law Section. (Co-authored with Joseph R. Saveri and Peter Leckman.)
• Report, "An Evaluation of Private Antitrust Enforcement: 29 Case Studies" (2006). (Report provided to members of the Antitrust Modernization Commission on successful private antitrust class actions. Co-authored with Robert Lande.)
• "Proposal: Expected Value Arbitration," Dispute Resolution Alert (JAMS, Spring 2005).
• Report of the California Supreme Court Multijurisdictional Practice Implementation Committee: Final Report and Proposed Rule (March 2004). (The report was adopted by the California Supreme Court and the proposed rules became effective November 2004.)
• "Statistical Proof," Employment Discrimination Law (BNA, Fourth Edition 2004). (Contributor | Cumulative Supplement)
• California Class Action Practice and Procedure edited by Elizabeth J. Cabraser (Lexis, 2003). (Contributing Author)
• "Decisions Interpreting California’s Rules of Class Action Procedure," Survey of State Class Action Law (ABA, 2000-2003). (Co-authored with Elizabeth J. Cabraser, William B. Hirsch, Fabrice Vincent, Barry R. Himmelstein and Stephen H. Cassidy. The article was republished in the State Supplement Section in Newberg on Class Actions.)
• "Thoughts on Finding the 'Truth,'" The Lawyer (2001).
• "Statistical Proof," Employment Discrimination Law (BNA, Third Edition 2000). (Contributor | Cumulative Supplement)
• Semiannual Advanced ALI-ABA Course of Study, "Civil Practice and Litigation Techniques in Federal and State Courts: Current Issues Involving Rule 12(b)(6) and Rule 9(b)" (1998 and 1999).. (Co-authored with Elizabeth J. Cabraser.)

Briefs

• U.S. Supreme Court, Comcast v. Behrend, brief filed on behalf of the American Antitrust Institute in support of respondents (October 2012). Read More
• California Supreme Court, In re Cipro Cases I & II, brief on the legality under antitrust laws of reverse payments (2011) (No. S198616) (. (Co-authored by Richard Brunell, Albert Foer, and the American Antitrust Institute.)
• U.S. Supreme Court, Wal-Mart Stores, Inc. v. Betty Dukes, et al. (2011) (No. 10-277). (Co-authored with law and economic professors in support of respondents.) Read More
• U.S. Court of Appeals for the Seventh Circuit, amicus brief argues that a lower court applied an incorrect standard when it rejected class certification (2010). (Co-authored with Avidan Stern, Eric L. Cramer, Andrew C.Curley on behalf of the American Antitrust Institute.)
• U.S. Court of Appeals for the Second Circuit, Balintulo v. Daimler, 831 F.2d 196, 60 (2d Cir. 2009) (No. 09-2778-CV). (Co-signer with other civil procedure scholars on brief addressing, inter alia, and collateral order doctrine.)
• Supreme Court of California, Ketchum v. Moses, 24 Cal. 4th 1122 (2001). (Co-authored with Charles B. Renfrew, Robert J. Nelson, and Caryn Becker. Represented The Bar Association of San Francisco.)
• U.S. Court of Appeals for the Eleventh Circuit, Carter v. West Publishing Co., No. 99-11959-E (11th Cir. 1999). (Co-authored with James M. Finberg. Represented the National Employment Lawyers Association, the National Association for the Advancement of Colored People, the Florida State Conference of NAACP Branches, the National Women's Law Center, the American Jewish Congress, and the Rainbow/PUSH Coalition, Inc.)
• U.S. Court of Appeals for the District of Columbia Circuit, Kolstad v. American Dental Association, 527 U.S. 526 (1999). (Co-authored with James M. Finberg, Jonathan D. Selbin, and Paulina do Amarai. Represented the Lawyers' Committee for Civil Rights Under Law, the National Association for the Advancement of Colored People, the Mexican American Legal Defense and Education Fund, the National Partnership for Women & Families, the National Women's Law Center, the National Organization for Women Legal Defense and Education Fund, and the American Civil Liberties Union.)
• U.S. Court of Appeals for the Fifth Circuit, Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998). (Request for rehearing en banc. Co-authored with James M. Finberg. Represented the National Employment Lawyers Association.)

Court Citation of Research

• U.S. Court of Appeals for the Third Circuit, Caroline Behren v. Comcast Corporation 2011). (Decision affirmed class certification for antitrust case.)
• U.S. Court of Appeals for the Third Circuit, Sullivan, et al. v. De Beers). (Amicus brief on certification of settlement class and approval of class action settlement on behalf of the American Antitrust Institute.)
• U.S. District Court, Eastern District of Wisconsin, In Re: Lawnmower Engine Horsepower Marketing & Sales Practices Litigation MDL. No. 08–1999 2010).

Presentations

• Presenter, "Report on Jury Instructions in Civil Antitrust Cases," American Antitrust Institute’s Sixth Annual Private Antitrust Enforcement Conference at the National Press Club, Washington, D.C. (December 2012). (Co-presented with Shannon Wheatman.)
• Co-Organizer, presentation by Dr. Clarence B. Jones, "Pivotal Legal and Leadership Policy Decisions Faced by Dr. Martin Luther King Jr.," University of San Francisco School of Law (September 2012). (Co-sponsored by the Center for Law and Ethics.)
• Moderator, "A Conversation with Expert Trial Lawyers: How to Live a Good and Successful Life as an Attorney," University of San Francisco School of Law Center for Law and Ethics Panel, (October 2011).
• Panelist, "Current and Future Trends in Class Actions," Northern District of California 2011 Judicial Conference, Monterey, Calif. (April 2011).
• Panelist, "Unintended Consequences: Are Indirect Purchaser Settlements Over?" American Bar Association Section on Antitrust Law Spring Meeting "59th Annual Antitrust Spring Meeting," Washington, DC. (March 2011).
• Presenter, "Market Power in Pharmaceutical and Medical Device Antitrust Cases," National Association of Attorneys General Pharmaceutical Industry Working Group, Teleconference (January 2011). (Co-presented with Eric Cramer.)
• Panelist, "Developments in Class Certification," American Antitrust Institute Fourth Annual Conference at the National Press Club "Future of Private Antitrust Enforcement," Washington, D.C. (December 2010). (Davis discussed class certification in antitrust cases. Link here.)
• Presenter, "Class-Wide Recoveries," Bay Area Civil Procedure Forum, San Francisco, Calif. (December 2010). (Conference is hosted by Stanford, UC Berkeley, UC Davis, UC Hastings, and USF. SSRN)
• Presenter, "The Future of Treble Damages, Joint and Several Liability, Contribution, Claims Reduction, and Prejudgment Interest," American Antitrust Institute’s First Annual Invitational Symposium on the Future of Private Antitrust Enforcement, Washington, D.C. (December 2007).
• Presenter, "Antitrust, Class Certification, and the Politics of Procedure," UC Hastings, Bay Area Civil Procedure Forum, San Francisco, Calif. (February 2010).
• Presenter, "The Inherent Structure of Free Speech Law," McGeorge School of Law Scholarly Presentation Series, Sacramento, Calif. (February 2010).
• Moderator, "Mobilizing Movements: Exploring the Roles of Competing Social Movements in Shaping the Future of Marriage," University of San Francisco Law Review Symposium "The Future of Same-Sex Marriage," (February 2010).
• Presenter, "The Legality of Reverse Payments," American Antitrust Institute's Third Annual Invitational Symposium on the Future of Private Antitrust Enforcement at the National Press Club, Washington D.C. (December 2009).
• Presenter, "Ethics in Litigation: Witness Preparation," University of San Francisco School of Law Intensive Advocacy Program, (June 2009).
• Presenter, "Judicial Activism and Judicial Resolution of Contested Facts in Antitrust Cases," Loyola University Chicago School of Law, Ninth Annual Antitrust Colloquium, Chicago, Ill. (May 2009).
• Presenter, "Free Speech in Three Easy Steps: What's the Next Step?" University of San Francisco School of Law Faculty Teaching and Scholarship Workshop, (February 2009).
• Presenter, University of San Francisco School of Law Center for Law and Ethics and the American Board of Trial Advocates Panel on Lawyer Civility, (January 2009).
• Moderator, "Proposed Revisions to the California Rules of Professional Conduct," University of San Francisco School of Law Center for Law and Ethics, (January 2009).
• Presenter, "Judicial Resolution of Contested Facts in Antitrust Cases," American Antitrust Institute Symposium "Future of Private Antitrust Enforcement," Washington D.C. (December 2008).
• Presenter, "Ethics Discussion on Proper and Improper Coaching of Witness Testimony (as well as an exercise in the use of expected value analysis in negotiation and mediation)," University of San Francisco School of Law 17th Annual Intensive Advocacy Program, San Francisco, Calif. (May 2008).
• Presenter, "Use of Expected Value Analysis in Dispute Resolution," University of San Francisco School of Law Intensive Advocacy Program, (June 2008).
• Panelist, University of San Francisco School of Law and State Bar of California Ethics Symposium "Notoriety — When the Spotlight is on Ethics," (May 2008).
• Presenter, "Expected Value Arbitration," Annual CPR Meeting, Online, WestLegalEdcenter.com (January 2008).
• Panelist, Annual Meeting of the International Institute for Conflict Prevention and Resolution "Expected Value Arbitration," (January 2008).
• Moderator, "Inadvertent Disclosure: An Attorney’s Ethical Obligations," 80th Annual Meeting of the State Bar of California, Anaheim, Calif. (September 2007).
• Presenter, "The ABCs of a Successful Plaintiffs’ Antitrust Practice," Richardson, Patrick, Westbrook & Brickman Symposium on Private Litigation, Charleston, S.C. (April 2007).
• Presenter, "Expected Value Arbitration," JAMS Institute, (November 2004).
• Presenter, "No Chance at the Prized Hen: The U.S. Supreme Court Bars Foreign Antitrust Plaintiffs from Bringing Claim Under the Sherman Act and the FTAIA for Independent Adverse Foreign Effects," Barristers International Practice Section of The Bar Association of San Francisco, San Francisco, Calif. (September 2004).

Testimony and Hearings

• Witness Testimony, "Open Access to Courts Act of 2009," H.R. 4115, House of Representatives, Committee on the Judiciary, Subcommittee on Courts and Competition Policy (December 2009).

Written Testimony and Commentary

Advisor or Consultant

Counsel

Symposia Organization

• Organizer, University San Francisco School of Law Symposium, "Litigation, Settlement, and the Public Interest: Fluid Recovery and Cy Pres Relief" (2010)
• Organizer, University of San Francisco School of Law Center for Law and Ethics Symposium, "Lawyers, Drugs, and Money: A Prescription for Antitrust Enforcement in the Pharmaceutical Industry" (2009). (Participants included Michael Carrier, Feldman, and C. Scott Hemphill.)
• Organizer, University of San Francisco School of Law Panel "Civility Matters" (2009).
• Organizer, University of San Francisco School of Law and State Bar of California Ethics Symposium "Notoriety - When the Spotlight is on Ethics" (2008).
• Organizer, University of San Francisco School of Law Symposium, "The Uncertain Future of Antitrust: Responding to the Antitrust Modernization Commission" (2005). (Participants included Commissioner W. Stephen Cannon, Stephen Calkins, Herbert Hovenkamp, Robert Lande, and Assistant Attorney Generals Kathleen Foote and J. Thomas Prud’homme.)
• Organizer, University of San Francisco School of Law Symposium "Soaring Prices for Prescription Drugs – Incentive for Innovations or Antitrust Violations?" (2004). (Participants included Herbert Hovenkamp, Mark Lemley, James Langenfeld, and Cris Leffler.)
• Organizer, University of San Francisco School of Law Symposium "Mandatory Arbitration Clauses" (2003). (Participants included Professor Emeritus Jay Folberg, Jean Sternlight, Stephen Ware, and David Schwartz.)
• Organizer, University of San Francisco School of Law Lecture "Teaching Values in Law School" (2002). (Participants included Professor Joshua Rosenberg, Christopher Eisgruber, Paul Tremblay, and W. Bradley Wendel.)
• Organizer, University of San Francisco School of Law Symposium, "Christopher L. Eisgruber's Constitutional Self-Government" (2002). (Participants included Research Professor of Constitutional Law John Denvir, Rebecca Brown, Roderick Hills, Mark Tushnet, Jeremy Waldron, and Christopher Eisgruber.)

Professional Membership

• American Antitrust Institute Advisory Board (2007 to present)
• American Antitrust Institute Working Group on Civil Remedies (2006 to present)

Fellowships

Other Service