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53 Colum. Hum. Rts. L. Rev. 1 (2021-2022)

handle is hein.journals/colhr53 and id is 1 raw text is: SCORCHED BORDER LITIGATION Briana Beltran, Beth Lyon, and Nan Schivone* ABSTRACT 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 rural communities in other countries. During litigation, the employers and the employers' lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call scorched border tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States' long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers' case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon. * Lecturer, Farmworker Legal Assistance Clinic, Cornell Law School; Clinical Professor of Law, Cornell Law School; and Legal Director, Justice in Motion. Thank you very much to Cathleen Caron, Maggie Gardner, Jaclyn Kelley-Widmer, and Annie Smith for their thoughtful and helpful comments on this Article. In addition, we are grateful to the many litigators who consulted with us on this project, responded to our survey, or otherwise provided their own detailed perspective, information, and case experiences as we drafted this Article. Thank you very much to Anza Abbas, Ayumi Berstein, Alexandra Eguiluz, Samuel Gamer, Joey Gates, Jonas Lee, Gabriela Lopez, Jordan Lu, Christie Park, Abigail Ramos, and McKenzie Szarmach for their research and administrative support during the years of work on this project. Finally, though any errors are our own, thank you very much to the editors of the Columbia Human Rights Law Review for their feedback and support during the editing process.

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