Preclusive Effect Research Articles

Recognition of US Class Actions or Settlements in Europe

With the Morrison-judgment, access to US securities class actions is denied for non-US transactions. Granting preclusive effect to class settlements concluded with European investors should prevent re-litigation before European courts. Recognising US class action/settlement judgments under Dutch, French English and German law requires the following: (1) the US courts must have had jurisdiction; (2) the class must have been properly notified; (3) opt-out mechanisms must not be manifestly against public policy; and (4) interested parties must be sufficiently informed. Absent class members are bound unless they explicitly opt out. European jurisdictions (recently) allow for a similar binding effect. The Dutch WCAM and the English representative actions have opt-out features. The German Capital Market Model Case proceedings is based on the opt-in model; only persons bringing a claim before a (lower) court are bound to the outcome of the model case proceedings. The recently adopted French collective action proceedings are also opt-in, however, filing an individual (damage) claim is not required at the first stage in which a representative organisation requests the court to rule whether the defendant acted tortiously towards the represented group.

Admit or Deny: A Call for Reform of the SEC's "Neither-Admit-Nor-Deny" Policy

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny policy argue that it is the most efficient way to compensate harmed investors. In contrast, many critics condemn the ministerial role of the judiciary in approving SEC settlements. Other interested parties express uncertainty about how aggressively the SEC will pursue admissions under the modified approach and whether admissions will have collateral estoppel effects in subsequent private litigation. Both supporters and critics are mistaken in their approach to the policy, and those in the third category are justifiably uncertain. This Note emphasizes the need for an overhaul of the neither-admit-nor-deny policy, arguing that the policy is plagued by ambiguity, affords too much discretion to the SEC, and does not sufficiently punish wrongdoers. As a result of its use of the neither-admit-nor-deny policy, the SEC fails to achieve the objectives of transparency, accountability, and deterrence that are paramount to enforcing federal securities laws. By requiring specific admissions of wrongdoing in settlements and limiting the preclusive effect of those admissions in private litigation, the SEC would adopt a more aggressive and disciplined approach to enforcement—better serving the public interest—without the risk of costly litigation with defendants who refuse to settle.

Collective Actions and Joinder of Parties in Arbitration: Implications of DR Horton and Concepcion

Well over a century ago, legal and policy analysts realized that the days of purely individual action in matters of business and labor were over, and that legal rules must adapt to the social and economic power of large corporations. Among the rules that changed were archaic limitations on joinder of claims and parties in litigation and laissez faire “liberty of contract” doctrines invalidating labor legislation. Recently, lawyers representing large corporate employers have urged a revival of old rules limiting class actions and labor rights. But, as this Article will show, it is not at all clear that their clients will benefit from the legal regime the lawyers have created. As long as employers have large workforces working under uniform policies, they will face dozens or hundreds of similar claims challenging pay practices, discrimination, and harassment. Group adjudication arose to address efficiently the many similar claims that arise when large institutions adopt uniform policies. Individual arbitration of such claims may result in fewer claims being filed, especially if confidentiality provisions keep co-workers from learning from each other about how to assert successful claims. But unless or until employers figure out a way to shift all the costs of dispute resolution onto the claimaints (and thus far courts have resisted such efforts), and to silence all claimants and their lawyers, employers will face many similar claims, will be paying part or all of the costs of lots of identical arbitrations, and will be paying lawyers to handle them separately rather than on a classwide basis.The National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (“the Board”) has long held that protected activity includes asserting claims in courts, agencies, and in arbitration. In D.R. Horton, the Board found the NLRA to prohibit enforcement of an employer-imposed requirement that employees waive their right to bring a collective action challenging their working conditions. On petition for review, a divided panel of the United States Court of Appeals for the Fifth Circuit rejected the Board’s determination, holding that the Federal Arbitration Act (FAA) requires enforcement of the mandatory arbitration agreement, including its class action waiver.This Article explains why collective action waivers or requirements to arbitrate individually are unenforceable under the National Labor Relations Act and the Norris LaGuardia Act. The Article also explains why arbitration agreements requiring claims to be brought by individuals are not covered by the Supreme Court’s reasoning in Concepcion and Italian Colors to the extent they prohibit joinder of fewer parties than would be required to bring a large class action and, therefore, remain protected by labor law. The Article notes the inconsistency in the FAA cases about whether agreements can waive the right to file charges with some agencies and courts rather than others and therefore critiques the Fifth Circuit’s ruling that the FAA trumps the employees’ rights under NLRA sections 7 and 8(a)(1) to file group actions in court or arbitration but does not trump section 8(a)(4), which protects the right to file unfair labor practice charges. Finally, the Article raises some questions about the practical wisdom of the courts’ willingness to allow employers to require employees to pursue claims only as individuals. State and federal courts universally allow liberal joinder of plaintiffs and defendants because it is more efficient and avoids some truly thorny issues about the preclusive effect of judgments. The Fifth Circuit majority’s assumption, like the Supreme Court majority’s in Concepcion, that individual determination of claims is better suited to arbitration is simply wrong in many cases. Unless employers can opt out of the usual rules for the binding effects of judgments and the usual rules for joinder of claims and parties, the notion that individual arbitration is superior for everyone (including employers) is simply wrong.

General Release Signed by Qui Tam Relator Does Not Bar Later Suits By Other Relators Alleging the Same Fraud – United States ex rel. May v. Purdue Pharma L.P.

General Release Signed by Qui Tam Relator Does Not Bar Later Suits By Other Relators Alleging the Same Fraud - United States ex rel. May v. Purdue Pharma L.P.1 - The Fourth Circuit recently held that a general release signed by an individual bars False Claims Act2 (FCA) suits by that individual, but does not bar later actions brought by other qui tam relators alleging the same fraud ulent acts.3In general, any individual who knowingly submits false claims to the government is liable under the FCA. 4 The statute also allows for private whistleblowers, known as relators, to file qui tam actions on behalf of the government and allows relators to recover a share of any eventual damages. 5 Qui tam relators may be barred from receiving their share, however, if anot her action regarding the same fraud has already been filed -the first to file bar6-or if the action is based on information already publically disclosed -the disclosure bar.7In 2005, Mark Radcliffe, a former Purdue district sales manager, filed a qui tam suit against Purdue claiming that the company falsely marketed the cost per dose of the popular pain medication OxyContin.8 Prior to filing this suit, however, Mark Radcliffe had been laid off by Purdue and had signed a general release of all cla ims in exchange for a more generous Perdue severance package.9 The District Court for the Western District of Virginia originally dismissed this action for failing to satisfy the Federal Rules of Civil Procedure's heightened pleading requirements in cases alleging fraud.10 The Fourth Circuit affirmed this dismissal with prejudice on alternate grounds, holding that the release was enforceable and any right to file a qui tam action had been waived in the release.11 The court noted, however, that [t]he release . . . did not prohibit the government or another relator from pursuing similar claims.12Subsequently, relators Steven May, a former Purdue sales representative, and Angela Radcliffe, Mark Radcliffe's wife, filed a qui tam action against Purdue alleging nearly identical violations of the FCA. 13 Purdue responded, arguing that the action should be barred on res judicata grounds because the Fourth Circuit's previous dismissal with prejudice of Mark Radcliffe's suit was a judgment on the merits.14 The District Court for the Southern District of West Virginia agreed and dismissed the suit.15On appeal, the relators contended that the district court should not have given the previous suit preclusive weight as the decision turned on a standing issue. 16 The Fourth Circuit rejected this argument, but nevertheless held that the district court erred in dismissing the relators' complaint. 17 The court found that, since settlement agreements are contractual in nature, the preclusive effect of a judgment based on such an agreement is limited only to the agreement itself. 18 That is, Mark Radcliffe's release only concerned his personal rights and potential claims against Purdue -not the relators' or the government's potential claims -and therefore the release could not be used against others.19 Further, the court's decision in the previous suit, which enforced the release, could not expand the release's scope, and therefore the judgment could not bar non-signatories from proceeding against Purdue.20 The court's dismissal in Radcliffe may have been a dismissal on the merits under the Federal Rules, but such a judgment does not always have a preclusive effect.21The court also considered whether the 2010 amendments 22 to the FCA's public disclosure bar applied since the alleged fraud occurre d between 1996 and 2005.23 Since the amendments would have to apply retroactively, altering the relators' right to assert their claims against Purdue even if they did not have actual knowledge of the disclosure itself, and the legislation does not specifica lly mention retroactivity, the court decided to apply the earlier version of the statute. 24 As the relators claimed their knowledge of the fraud came from discussions with Mark Radcliffe and not from a public disclosure, the court remanded for discovery to make factual findings on whether the previous action precludes this complaint. …

Transnational Class Actions in the Shadow of Preclusion

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. suit (and reaping its rewards) or relitigating the case abroad. Transnational class actions thus give some plaintiffs “litigation options.” The few courts and scholars that have recognized this phenomenon have proposed methods to identify litigation option holders and exclude them from opt-out treatment. Some U.S. judges, for example, have refused to certify classes that include citizens of foreign countries that may not recognize U.S. class judgments. This Article shows that this conventional wisdom is misdirected: citizenship is the wrong measure; courts are poorly positioned to identify relitigation risk; and the social costs of excluding option holders may well outweigh the benefits. Instead, courts should certify classes of foreign and domestic plaintiffs in service of policy goals such as deterrence and intraclass fairness regardless of foreign preclusion law. At the same time, this Article suggests innovative approaches to achieve some preclusion previously unremarked upon in transnational cases. Prior approaches are insufficient, in part, because they rely on courts without acknowledging the informational asymmetries between courts and parties or the limited tools available for judicial resolution. This Article explains how private incentives and private information may fill the gap in interjurisdictional preclusion law. Parties should be encouraged to negotiate private preclusion agreements in cases in which preclusion matters. In addition, courts can coordinate informally to curb costly relitigation. In summary, this Article uses values derived from lawmaking choices and a practical assessment of the litigation environment to respond to litigation options in transnational class actions not by excluding option holders but instead by permitting aggregation and seeking alternatives to preclusion law. This Article applies these lessons to transnational class actions filed in a single jurisdiction (e.g., a U.S. court), as well as to dueling class actions filed in two countries simultaneously and to U.S. recognition of foreign aggregate judgments whatever their form.The appendices for this paper are available at the following URL: http://ssrn.com/abstract=2609339

TheTravauxofTravaux: Is the Vienna Convention Hostile to Drafting History?

It is often asserted that the Vienna Convention on the Law of Treaties (VCLT) relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice againsttravaux préparatoires(travaux)—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

Halfway There: An Empirical Analysis of How State Courts Have Failed Fully to Apply the Two-Part Test of Semtek

Preclusion is a useful tool to ensure final judgments and speed up litigation. Parties rely on preclusion law to make litigation decisions. Preclusion law affects the vigor in which parties will litigate, settlement decisions, delay tactics, and joinder choices. However preclusion law is not uniform throughout the country. Different state and federal courts apply different rules for determining a preclusive effect on issues such as mutability, alternative holdings, finality, same claims, rulings on the merits, and compulsory counterclaims. Understanding which preclusion law applies helps parties make informed litigation decisions. Keeping preclusion law consistent ensures that courts are given the full faith and credit intended by the Constitution. State courts are bound under both the Full Faith and Credit Clause and Statute to apply the preclusion law of the first forum when the first forum is another state court. Therefore, a correct following of Full Faith and Credit means applying the preclusion law of the first state. Around the turn of the 20th Century, the Supreme Court extended states’ obligation to follow the preclusion law of the first forum when it is a federal court. Under the Full Faith and Credit Clause and Statute, forum courts should faithfully apply the preclusion law of the first forum.Professor Howard Erichson’s 1998 article, Interjurisdictional Preclusion, showed that state courts often apply interjurisdictional preclusion incorrectly. Erichson empirically examined how state courts handled interjurisdictional preclusion problems. He did this by studying preclusion cases between 1991 and 1996 where the first forum was a federal court and the second was a state court. He found that state courts usually applied their own preclusion law and rarely gave any notice to the federal rules of preclusion. Out of the 286 preclusion cases found, state courts only cited to the federal law 22% of the time. Fortunately, the Semtek decision in 2001 brought clarity on interjurisdictional preclusion for state courts. Semtek gave a rule that the Full Faith and Credit Clause and Statute, as interpreted by the Supreme Court left unclear. It announced, as a matter of federal common law, the rule for state courts when addressing the preclusive effect of a federal court sitting in diversity. When the first forum is a federal court sitting in diversity, “the federally prescribed rule of decision, the law that would be applied by state courts in the State in which the federal diversity court sits.” I refer to this as the first part of the Semtek test. The state law should be applied unless “the state law is incompatible with federal interests.” I refer to this as the second part of the Semtek test. The Semtek opinion created a complicated two-part test for certain issues in interjurisdictional preclusion. This comment will analyze how state courts are implementing the Semtek opinion and compare the data with the Erichson study of state courts before Semtek. I conducted a study that looked for all state court cases since the Semtek decision that dealt with a Semtek issue arising from a prior adjudication in federal court. My research found that state courts are applying the first part of the Semtek rule about 53% of the time, which is over double the 22% rate found in Erichson’s study. These cases often correctly apply the first part of the Semtek test by looking to the state in which the federal diversity court sat for preclusion law. Despite this increased compliance, state courts only mention the second part of the Semtek test, considering compatibility with federal interests, 6% of the time. This comment then discusses the rates of states correctly applying the two-part Semtek test over time. This comment will conclude with a discussion of the implication of those findings and potential solutions.

They Doth Protest Too Much: A Historical Demonstration that Wal-Mart's Critics Have it All Wrong

Decided in the middle of 2011, Wal-Mart Stores, Inc. v. Dukes has inspired nearly uniform condemnation from scholars. The decision has been decried as the death knell of employment class actions, a retrogressive outcome that imperils civil rights. But whether the case was rightly decided depends on the rule’s text, purpose, and history rather than policy preferences. That is to say, courts should decide outcomes based on what the rules are rather than what they should be. This essay examines the 1966 amendments that gave birth to the modern class action. By examining the events leading up to the rule’s amendment in 1966 and contemporary commentary, I will show that, as amended and modernized in 1966, Rule 23 was never meant to be a cure-all in situations where a number of prospective plaintiffs might identify the same defendant. Rather, it was designed as a joinder device guaranteeing preclusive effects on rulings that had previously bound only named parties. The Committee intended the device to be used only in limited situations — a use that bears no resemblance to that seen today. Thus, typical criticisms of Wal-Mart have force only in a normative sense — perhaps the rule should be amended to account for its limitations. Critics’ charges that the Supreme Court stripped the rule of its potential reach are not well taken.The essay takes an atypical structure. After a brief history of class actions, it explores the 1966 amendments through five miniature biographies of key Rule 23 framers. With the groundwork thus laid, I then address Wal-Mart Stores, Inc. v. Dukes specifically, demonstrating why its holding was appropriate in every respect.

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

This article previews the issues and arguments in the 2010-11 Supreme Court Term case, Smith v. Bayer Corp. In 2001, Keith Smith and Shirley Sperlazza filed a class action lawsuit against Bayer Corporation in West Virginia state court, alleging varying claims arising out of their use of the prescription drug Baycol. In 2008, the Federal District Court for Minnesota, overseeing the massive Baycol products multidistrict litigation, denied class certification under the federal class action Rule 23, to a proposed class of West Virginia consumers alleging economic-loss injury. Shortly after denial of the federal action, the Smith class moved for class certification in state court pursuant to the West Virginia class action rule.In response, the Bayer Corporation sought a permanent injunction enjoining the West Virginia class certification hearing, which the Minnesota federal district court granted. In January 2010, the United States Court of Appeals for the Eighth Circuit upheld this federal injunction of the West Virginia class certification hearing. This appeal involves the issue whether a federal court, consistent with the All Writs Act and the Anti-Injunction Act, could enjoin the West Virginia state court from determining whether to certify a class action after a federal court previously denied class certification in a virtually identical class action.The Court will address two major issues: (1) When a federal court in an MDL proceeding denies class certification of a statewide class action, may the court pursuant to the All Writs Act and the Anti-Injunction Act enjoin putative class members who were represented in the federal hearing from seeking class certification in state court for the same class action?, and (2) When a federal court in an MDL proceeding denies class certification of a statewide class action, is it impermissible for the federal court to issue an injunction restraining absent class member from seeking state class certification, where those absent class members were not afforded the due process protections required if certification had been granted?In deciding the Smith appeal, the Supreme Court will not forge any new ground in interpreting the Anti-Injunction Act or the All Writs Act. The appeal basically presents a fairly straightforward question concerning the appropriate exercise of the relitigation exception, in the context of dual federal-state class action practice. However, the Court’s Smith decision will have important implications for federal and state class action litigation.In the past twenty years, burgeoning of class action litigation in both federal and state court has given rise to problems relating to intersystem adjudication of complex litigation. There are no legal restrictions on litigants from filing parallel actions in both federal and state court, and the Anti-Injunction Act is a relatively weak mechanism for restraining parallel state proceedings.In the past two decades, federal courts have attempted to better manage duplicative class action litigation through increased use of the MDL procedures, which enable consolidation of all similar cases throughout the federal system, for coordinated pre-trial discovery and other proceedings. MDL procedure has proved to be a very effective mechanism for resolving massive litigation. In addition, Congress manifested an interest in channeling class action litigation into federal courts by enactment of CAFA, which created new federal jurisdiction for class actions and provided a vehicle for removal of class actions from state court into the federal system.Notwithstanding these developments, litigants still may pursue class action relief under state class action rules. The Smith appeal confronts the Court with the important question whether state litigants are free to seek a different class certification decision in a state court, once a federal court has determined class certification is not appropriate, and should be denied. As Bayer suggests, such a ruling would provide litigants with an incentive to keep filing state class actions until they find a judge who decides differently than the federal court. For policy reasons alone, Bayer contends this is an untenable conclusion.The Smith plaintiffs, on the other hand, suggest this case tests the very heart of federalism: the notion that state courts are free to determine issues according to their own interpretation of their laws and procedures, even where those laws and procedures are identical to federal rules.In the end, the Court’s opinion is likely to turn on a careful, nuanced analysis of the requirements of preclusion doctrine, with careful attention to the parties, issues, and nature of the class proceedings. We also may expect the Court to supply some further elucidation of what due process requires, in the class action context, to give preclusive effect to a class certification denial to nonparties to a prior litigation.

The Preclusive Effect of U.S. Class Action Judgments in Switzerland: Does a Judgment in an Opt-Out Class Action before a U.S. Court Preclude Absent Plaintiff Class Members from (Re)-Litigating Their Individual Claims in Switzerland?

The Swiss legislator has so far refused to implement any substantial form of representative litigation into national civil procedure law. As an indirect consequence of the absence of domestic group litigation in Switzerland, it is unclear how Swiss courts have to deal with foreign class actions. One crucial question is whether money judgments in foreign class actions are enforceable in Switzerland, i.e. whether a class representative is able to enforce a judgment in favor of the class in this country. Yet foreign class actions also raise the additional issue whether absent class members are precluded from individually litigating their claims, particularly in case the class action was unsuccessful. While, according to the concept of U.S. opt-out class actions, individual claimants are generally barred from suing upon their own causes of action that have already been litigated in the context of a class action, the same issue is so far unresolved in the international context. Absent a relevant statutory provision or case law regarding this question, the opinions in Switzerland differ considerably.In the United States, the issue of preclusion of class members in other countries has attracted increasing interest over the last few years. Acknowledging the risk that plaintiff class members might attempt to (re-)litigate their claims in foreign jurisdictions, U.S. courts have started to take the anticipated recognition/non-recognition of the class action judgment in the plaintiffs’ home countries into account when asked to certify an international plaintiff-class.In this article, I will analyze the issues arising when a defendant argues in a Swiss court proceeding that the plaintiff was part of a class which has already litigated its members’ claims in the United States and that the plaintiff should therefore be precluded with his individual lawsuit. Then, I will examine how well Switzerland fares with its current provisions on the international level, in particular in light of the mentioned development in U.S. law regarding transnational class actions.

Non-Mutual Offensive Collateral Estoppel in Private Antitrust Litigation: Lessons from the Microsoft Cases

For nearly 100 years, antitrust policy in the United States has reflected the important role of private enforcement by allowing private litigants to benefit from successful government enforcement actions. With the enactment of section 5(a) of the Clayton Act in 1914, prior judgments obtained by the government were given prima facie effect in follow-on litigation by private parties. Following the U.S. Supreme Court’s 1976 decision in Parklane Hosiery Co. v. Shore, non-mutual offensive collateral estoppel has since supplanted section 5(a) as the tool of choice in many private antitrust lawsuits. That doctrine, however, has been described as “detailed, difficult, and potentially dangerous,” and the cautious approach that some courts have adopted in the antitrust context is in tension with the policy preference expressed in the Clayton Act that favors giving private plaintiffs the full benefits of prior government judgments. The Microsoft antitrust litigation presents one of the most interesting and challenging examples of that tension, and thus provides important lessons for future cases. This article seeks to provide a framework, based on lessons learned in Microsoft, for the application of non-mutual offensive collateral estoppel in antitrust cases that gives effect to the policy considerations underlying section 5(a) of the Clayton Act, while remaining mindful of the concerns identified by the U.S. Supreme Court in Parklane Hosiery. It argues that a broader application of the doctrine is warranted in the antitrust context and that, in order to give private plaintiffs the full benefit of prior government enforcement actions, all issues decided in the earlier proceeding that were “necessary” to each analytical step undertaken by the court in deciding, under the applicable substantive standard, that the antitrust laws had been violated should be given preclusive effect.

The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of Vivendi

United States' courts have proven willing to certify multi‐jurisdictional class actions which purport to adjudicate the claims of both American and foreign (i.e., non‐US‐domiciled) class members. This article contends, however, that a class actions judgment/settlement issued by a US court would not be recognised, and would not be given preclusive effect, in England, should absent English class members wish to re‐litigate the same grievance before an English court. Specifically, it is argued that two separate preconditions for such recognition and preclusive effect would fail, viz, a US court would usually lack the requisite ‘personal jurisdiction’ over absent English class members; and the necessary ‘identity of parties’ would be absent. The article seeks to anticipate the appropriate answer to a conundrum which is certain to arise for future English judicial consideration, whilst acknowledging the uneasy fit which currently exists between English private international law and multi‐jurisdictional class actions.

'Domesticating' the New York Convention: the Impact of the Federal Arbitration Act

International arbitration is a world of multiple interfaces among legal orders, marked by significant tensions at specific pressure points. It is the purpose of much, if not most scholarship in international arbitration to seek to resolve such tensions. In this article the author deals with a set of pressure points that has recently been brought to the surface in a particularly comprehensive and systemic manner, in the context of the Restatement of the US Law of International Commercial Arbitration: the clash between, on the one hand, the New York Convention and thus the international model of international arbitration and, on the other hand, the basic US federal legislation on international commercial arbitration and thus the US model on international arbitration. This clash, the author shows, becomes manifest with regard to issues including: awards made in the United States but whose enforcement is nevertheless governed by the New York Convention; the preclusive effects for other courts of a court’s decision on the scope of an arbitration agreement; the common law notion of collateral estoppel (issue preclusion—preclusive effects for other courts and tribunals of factual and legal findings) as opposed to the Convention’s focus on res judicata (claim preclusion); the application of forum non conveniens in actions to enforce an award; treating interim measures as awards; and the role of state public policy as opposed to federal public policy.

The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process: Report for England and Wales

In 2008, the British Institute of International and Comparative Law concluded a study of the preclusive effects of the recognition of judgments in civil and commercial matters in the EU for the European Commission. The study examined the legal practice of 10 countries, including Switzerland and the United States, in relation to domestic and foreign judgments. It also included an evaluation of Member State practice under the Brussels/Lugano Regime for the recognition and enforcement of judgments. The principle objectives of the project were to promote mutual recognition; to increase understanding of Member State rules regarding the authority and effectiveness of judgments; and to consider whether any disparities between Member State rules created an impediment to mutual recognition thereby supporting a potential EC-wide solution. The final report and other materials are available at http://www.biicl.org/judgments/. This paper considers the effect of judgments (both domestic and foreign) under the law of England and Wales.

Keeping Indian Claims Commission Decisions in Their Place: Assessing the Preclusive Effect of ICC in Litigation over Off-Reservation Treaty Fishing Rights

The article addresses the tension between Indian law and the litigation finality doctrines of claim preclusion and issue preclusion. We argue that some litigants and courts have improperly resolved this tension, applying preclusion too freely and thus preventing Indian tribes from pursuing valid claims. Between 1946 and 1978, many Native American tribes submitted claims against the US government to the Indian Claims Commission, a special court created by Congress to allow the tribes to seek compensation for land takings, broken treaties, and other uncompensated wrongs. In spite of the Commission's resolution of hundreds of claims and congressional appropriation of millions of dollars to pay the ICC awards, tribal claims did not end when Congress terminated the ICC in 1978. Tribes continue to pursue claims against the federal government, states, and private parties. Often, the opposing parties meet tribal claims with a preclusion defense, arguing that if a tribe received an ICC award, further claims are precluded - either by the common law doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion), or by statutory preclusion in the terms of the ICC statute itself. These arguments cannot be resolved by a simple one bite of the apple analysis. A more nuanced approach is required that looks carefully at the limited scope and purpose of the ICC process. Using the example of tribes with off-reservation treaty fishing rights, this article demonstrates the proper use of preclusion in the context of Indian Claims Commission decisions and cautions against overly-broad analysis that elevates finality over legitimate, unfulfilled tribal claims.

Untangling the Web Spun by Title VII's Referral & Deferral Scheme

Title VII's dual enforcement scheme creates knotty preclusion and subject-matter jurisdiction issues. The statute requires that claims of employment discrimination made in those states or localities with their own administrative enforcement bodies must first be presented locally, and may be pursued in the federal system only after affording the state administrative body time to attempt their resolution. The result of this dual enforcement scheme is that in some cases, a claim comes to federal court after it has already been adjudicated in the state system. Questions then arise as to whether the federal court has jurisdiction to hear the claim and, if so, the extent to which the prior state determination deserves preclusive effect. This Article will attempt to untangle the complicated web of preclusion and jurisdiction issues created by Title VII's dual enforcement scheme, and to define for the benefit of students, practitioners, and judges the approach to resolving such issues that best furthers the implicated legal and policy concerns of workplace equality and federalism.

ワクチン接種による狂犬病の流行阻止効果

ワクチン接種による狂犬病の流行阻止効果

USA-Canada Class Actions: Trading in Procedural Fairness

The US class action model and experience has influenced Canadian developments in collective litigation such that in recent years there has been a frenzy of legislative activity making class actions available virtually throughout the country. Now that two thirds of NAFTA is a class action zone, few policy obstacles stand in the way of actions covering both markets. For these to be viable, however, preclusive effect against class members in one country must be forthcoming for judgments or settlements rendered in the other country. In the first decision to consider this issue on the Canadian side, an Ontario appellate court held that an Illinois settlement was not binding on absent Canadian class members, on the basis of inadequate notice. Despite this negative conclusion, the judgment heralds a positive future for USA-Canada class actions by declaring a principle of recognition, dependant only on evidence of procedural fairness. This evidence is based on criteria well known to American doctrine and jurisprudence, namely adequacy of notice and of representation. The manner in which these requirements can be met is explored in the article, along with other possible means of enhancing efficiency and fairness in the context of cross-border class actions.

Class certification in the Microsoft indirect purchaser litigation

The indirect purchaser cases brought against Microsoft under state law in the wake of the government's victory in United States v. Microsoft have been certified as class actions much more frequently than other indirect purchaser cases. In this study, I explore possible explanations for this disparity, including lenient standards of certification; factual characteristics of the Microsoft cases that might be favorable to certification; and the supposed preclusive effect of findings in the government case. In the conclusion, I consider whether the certification of these cases under lenient standards has been in the public interest.

Research in the Shadow of DNA Patents

In recent years, the Federal Circuit and the Patent Office have characterized the legal doctrines governing the patentability of DNA molecules as essentially settled. This Article argues that the factual premises underlying those doctrines are increasingly being undermined by ongoing developments in biotechnology. Specifically, it may soon be possible to demonstrate that the patenting of DNA molecules retards the identification and sequencing of so many other useful DNA molecules that patent-driven DNA research is a self-defeating enterprise. To this end, this Article provides quantitative evidence of the preclusive effects of DNA patenting on specific laboratory procedures in genetic research. In drawing its methodologies and motivation from genetic engineering and bioinformatics, this Article establishes a new interdisciplinary space wherein the technological consequences of DNA patenting can be rigorously described and studied.