Law Commons^™

Mineral Sands Resources (Pty) Ltd And Another V Redell And Others And Two Related Cases 2021 Sa 268 (Wcc), Dunia P. Zongwe

SAIPAR Case Review

This case teaches activists how to respond when they get SLAPPed. It introduced a defense mechanism to prevent lawsuits launched by big corporations to silence criticisms. North American lawyers commonly refer to these lawsuits as ‘strategic litigation (or lawsuits) against public participation (SLAPP). Two scholars from the United States of America (US) coined this acronym.2 And, in 2021, for the first time in South Africa, a court recognized the SLAPP phenomenon and accepted a defense against this kind of lawsuits.

When big corporations SLAPP activists and journalists, and their lawyers, judges should not slap back those corporations by accepting anti-SLAPP …

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

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 …

Extending United States V. Mendoza: Why Defensive Nonmutual Issue Preclusion Is Unavailable Against The Federal Government, Jake E. Goodman

Cornell Law Review

Imagine a situation where the U.S. Securities and Exchange Commission (SEC) is Looking to enforce the antifraud provision of the Securities Exchange Act of 1934 against two different companies, arising out of the same transaction. Now suppose the SEC sues Company A ftrst. However, the court finds no violation based on the factual determinations of the transaction and renders a judgment refusing to impose liability against Company A. Unsatisfied, the SEC decides to sue Company B under the same provision. Company B, however, believes the factual issues were already litigated and determined against Company A and wants to preclude relitigation …

An Empirical Investigation Of Third Party Consumer Litigant Funding, Ronen Avraham, Anthony Sebok

Cornell Law Review

No abstract provided.

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Cornell Law Review

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically …

A Jury Of Your [Redacted]: The Rise And Implications Of Anonymous Juries, Leonardo Mangat

Cornell Law Review

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an …

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more than a …

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are …

Semi-Confidential Settlements In Civil, Criminal, And Sexual Assault Cases, Saul Levmore, Frank Fagan

Cornell Law Review

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess a defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and …

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Cornell Law Faculty Publications

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are …

Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors, Jordan Benson

Cornell Law Review

A representative jury ensures a truly impartial trial and that all groups are able to share in this valuable opportunity for civic engagement.Though the disabled constitute a minority of the population, their viewpoint is no less necessary to securing the benefits of a representative jury than that of groups already afforded protection from discriminatory strikes. As the disabled become more represented in many areas of society, their continued underrepresentation on juries will become even more difficult to justify. Discriminatory peremptory strikes are a significant, discretionary means by which the disabled can continue to be excluded from juries even when other …

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

Cornell Law Review

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal- agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest. Although multidistrict litigation now comprises 36% of the pending federal civil caseload, legal scholars have …

Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont

Cornell Law Faculty Publications

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule …

Rjr Nabisco And The Runaway Canon, Maggie Gardner

Cornell Law Faculty Publications

In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed an opportunity to …

Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, Michael Heise, Martin T. Wells

Cornell Law Faculty Publications

Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg’s analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff’s success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff’s decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff’s decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that …

Redundant Public-Private Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality of the modern regulatory state. Redundant public-private enforcement, in which public and private actors have overlapping authority to enforce the law, is ubiquitous. Redundant enforcement also is noticeably underrepresented in the substantial literature on private and public enforcement, which typically treats government agencies and private attorneys general as substitutes …

Territoriality, Technology, And National Security, Zachary D. Clopton

Cornell Law Faculty Publications

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data …

Litigation Trolls, W. Bradley Wendel

Cornell Law Faculty Working Papers

Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are …

Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas

Cornell Law Library Prize for Exemplary Student Research Papers

In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …

Four Decades Of Federal Civil Rights Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Cornell Law Faculty Publications

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The dominant approach has been an exclusionary one, dropping the absentees from the class. This essay instead recommends an inclusionary approach, so that all the foreigners would remain members of the class in transnational class actions. But the court should create a subclass in damages actions for the foreign claimants who might have an incentive to sue again; the subclass would proceed by the accepted technique of claims-made recovery, so that the subclass members could …

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Cornell Law Faculty Publications

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

Reflections On The Korean Jury Trial, Valerie P. Hans

Cornell Law Faculty Publications

Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean …

Predicitive Coding: The New E-Discovery, Emmanuel Alvarez

Cornell Law School J.D. Student Research Papers

Predictive coding is currently the most efficient and cost effective method for electronic discovery. Predictive coding combines a good balance of human and computer components to continuously provide a set of seed documents to better assist and find conceptual relevance between potential discovery documents. The organization and method of topic categories reduces the costs for litigation overall. However, the continuous reasonableness standard used by the courts must still be met. With the more elaborate predictive coding, the court and small firms may have difficulty in judging whether the process was reasonable. This may cause potential hurdles, or even potentially changing …

What's It Worth? Jury Damage Awards As Community Judgments, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Cornell Law Faculty Publications

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should …

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion …

How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …

Litigation As A Measure Of Well-Being, Theodore Eisenberg, Sital Kalantry, Nick Robinson

Cornell Law Faculty Publications

No abstract provided.