Law Commons^™

Challenging H-1b Denials In Federal Courts: Trends And Strategies, Hun Lee, Stephen W. Yale-Loehr

Cornell Law Faculty Publications

The denial rate for H-1B petitions has quadrupled over the past few years, increasing from six percent in fiscal year (FY) 2015 to twenty-four percent in FY 2018. After President Trump issued his ‘‘Buy American and Hire American’’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has effectively raised the standard of proof on H-1B petitions.

USCIS has used several reasons to deny H-1B petitions, including claims that the employer failed to show that a position qualifies as a ‘‘specialty occupation,’’ impermissibly assigned employees to third-party worksites, or failed to pay the required wage.

Under USCIS’s recent …

Improving Access To Justice: Do Contingency Fees Really Work?, Allan C. Hutchinson

Articles & Book Chapters

While not touted as a universal panacea for access problems, contingency fees have received general praise as an important and justice-improving initiative. By back-loading the payment of legal fees, the assumption is that the interests of clients and litigants will be better served. I challenge that received wisdom. While the rise of contingency fee agreements between lawyers and clients has increased the number of people who can afford lawyers and make successful claims, the more challenging issue is whether that increase is being achieved at too high a price to clients and litigants – while more people are able to …

Pay Now, Play Later?: Youth And Adolescent Collision Sports, Vivian E. Hamilton

Faculty Publications

The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head impacts—not number of concussions—is the strongest predictor of sports-related degenerative brain disease in later life. The observable symptoms of disease appear years or decades after initial injury and resemble those of other mental-health conditions such as depression and dementia. The years-long interval between earlier, seemingly minor, head impacts and later brain disease has long obscured the connection between the two.

Risk of injury differs across demographics, …

Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz

Faculty Scholarship

Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way …

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …

Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …

Law School News: Grappling With Law On Campus Sexual Misconduct 11-08-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Law School News: Inside Rwu Law's Small 'Admiralty Empire' 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce

Faculty Scholarship

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

The Professor Anthony J. Santoro Business Law Lecture Series Presents Becoming A Valued Business Lawyer, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

All Faculty Scholarship

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements …

Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer

All Faculty Scholarship

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works.

Based …

The Exhibit, The Litigation Center Newsletter - Summer 2019, Golden Gate University School Of Law

Litigation Center at Golden Gate University School of Law

No abstract provided.

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in the eyes …

Brief Of Brian Wolfman, Aderson B. Francois, And Eric Schnapper As Amici Curiae In Support Of Petitioner In Peterson V. Linear Controls Incorporated, No. 18-1401 (U.S. Supreme Court June 6, 2019), Brian Wolfman, Aderson B. François

U.S. Supreme Court Briefs

In Title VII disparate-treatment, employment-discrimination cases, the term “adverse employment action” originally developed as judicial shorthand for the statute’s text, which broadly prohibits any discriminatory conduct by an employer against an employee based on the employee's race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a)(1). But what started simply as shorthand has taken on a life of its own and now improperly limits the statute’s reach. The Fifth Circuit’s version of the adverse-employment-action rule stands out as especially improper: Only an “ultimate employment decision”—a refusal to hire, a firing, a demotion, or the like—constitutes impermissible discrimination.

In this …

Apple V. Pepper: Rationalizing Antitrust’S Indirect Purchaser Rule, Herbert J. Hovenkamp

All Faculty Scholarship

In Apple v. Pepper the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s iStore could sue Apple for antitrust damages because they were “direct purchasers.” The decision reflects some bizarre complexities that have resulted from the Supreme Court’s 1977 decision in Illinois Brick, which held that only direct purchasers could sue for overcharge injuries under the federal antitrust laws. The indirect purchaser rule was problematic from the beginning. First, it was plainly inconsistent with the antitrust damages statute, which gives an action to “any person who shall be injured in his business …

The Policy Implications Of Third-Party Funding In Investor-State Dispute Settlement, Brooke Guven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In this Working Paper, CCSI analyzes underexplored yet critical policy issues surrounding the use of third-party funding in ISDS. It considers the costs and benefits of the practice, asks whether it is desirable or undesirable that third-parties be permitted to invest in ISDS claims, and if so, under what circumstances and in order to achieve what objectives, and overviews policy responses, including a total or partial ban and various regulatory responses, that may be appropriate to manage identified impacts.

Contracting On Litigation, Kathryn E. Spier, J.J. Prescott

Articles

Two risk-averse litigants with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the litigants can mitigate risk and/or speculate on the trial outcome. Contingent contracting decreases the settlement rate and increases the volume and costs of litigation. These contingent contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The litigants (weakly) prefer to contract with risk-neutral third parties when the capital market is transaction-cost free. However, contracting with third parties further decreases the settlement rate, increases the costs of litigation, and may increase the aggregate cost of risk bearing.

The Exhibit, The Litigation Center Newsletter - Spring 2019, Golden Gate University School Of Law

Litigation Center at Golden Gate University School of Law

No abstract provided.

Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson

Articles

an environmental nongovernmental organization ("NGO") on behalf of a neighbor or hiker.1 The NGO would allege that the individual faced health risks, that her property was contaminated, or that she could no longer hike, fish, swim, or view wildlife such as the endangered Nile crocodile, as in the well-known case of Lujan v. Defenders of Wildlife.

Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet

Journal Articles

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent …

Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law

School of Law Public Interest Auction

No abstract provided.

Offensive Non-Mutual Issue Preclusion Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades …

The Curious Incident Of The Falling Win Rate: Individual Vs System-Level Justification And The Rule Of Law, Peter Siegelman, Alexandra Lahav

Faculty Articles and Papers

For forty quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70% to 30%, where it remained - albeit with increased volatility - for the next twenty years. This Essay explores the reasons for this decline and the need for systemic explanations for the phenomenon. Approximately 60% of the fall could be attributable to the changing makeup of the federal docket, but that leaves 40% of the fall (that is, a win rate decline of 14 percentage points over a ten year period) unaccounted for. We show that the most …

The Exhibit, The Litigation Center Newsletter - Winter 2019, Golden Gate University School Of Law

Litigation Center at Golden Gate University School of Law

No abstract provided.

Demystifying Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.

This Article offers one of the few defenses of nationwide injunctions and is grounded in …

How Evidence Of Subsequent Remedial Measures Matters, Bernard Chao, Kylie Santos

Sturm College of Law: Faculty Scholarship

Federal Rule of Evidence 407 prohibits plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. Among its purported justifications, the rule prevents hindsight bias from unduly influencing jury decisions. Nonetheless, plaintiffs often take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g. to prove feasibility). Fearing that the exceptions could swallow the rule, some courts will even exclude evidence that fits into one of these exceptions because it is ostensibly too prejudicial. Alternatively, other courts instruct juries that they should only use the evidence for the …