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The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky

Dickinson Law Review (2017-Present)

The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.

The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly …

The Warren S. Henderson Wetlands Protection Act Of 1984: A Primer, Mary F. Smallwood, Silvia Morell Alderman, Martin R. Dix

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing

San Diego Law Review

Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity …

Special Aspects Of Jurisdiction At Sea, Brunson Macchesney

Naval War College Review

My remarks will mainly be confined to the pressing problem of the measure­ment and width of the territorial sea, and I will only In pass­Ing refer to the allied problems of fisheries regulation and the continental shelf.

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …

Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin

Osgoode Hall Law Journal

Under section 6 of the CJPTA, a court may hear a case for which it lacks territorial competence under the statute if it is satisfied that: (1) there is no other court outside the province in which the plaintiff can commence the proceeding; or (2) the commencement of the proceeding outside the province cannot reasonably be required. Courts in provinces that have not enacted the CJPTA have grafted a similar discretion on to the common law rules of jurisdiction. This article seeks to determine the intentions of the drafters of the CJPTA in providing for this power and to discuss …

Cross-Border Transfers Of Court Proceedings, Vaughan Black

Osgoode Hall Law Journal

The Court Jurisdiction and Proceedings Transfer Act might easily have been two statutes rather than one. There could have been a pair of uniform acts, one delineating the territorial competence of the provinces’ superior courts and the other implementing a regime for the cross-border transfer of court proceedings. After all, these two matters are neither logically interdependent nor especially tightly linked. Part 3 of the CJPTA, dealing with transfers of proceedings, is not confined to lawsuits where the initial court takes jurisdiction under Part 2. It applies regardless of whether the initial court bases its jurisdiction on the CJPTA or …

The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom

Osgoode Hall Law Journal

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia, and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …

Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker

Osgoode Hall Law Journal

In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force. Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction. In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada. This article provides …

Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel

Osgoode Hall Law Journal

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.

Jurisdiction Motions And Access To Justice: An Ontario Tale, Gerard J. Kennedy

Osgoode Hall Law Journal

This article investigates the access to justice concerns surrounding jurisdiction motions in Ontario, having analyzed one hundred and forty-seven jurisdiction motions decided in Ontario between 2010 and 2015. The author challenges the previously expressed view that jurisdiction motions are presently being “abused” by defendants and their counsel. He also suggests that trends in jurisdiction motions this decade point to some improvement from an access to justice perspective. Nonetheless, jurisdiction motions are frequently presenting an impediment to access to justice, with uncertainty in the law likely being the primary reason for this. The author considers potential proposals to address the access …

General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh

Osgoode Hall Law Journal

“General jurisdiction” refers to a court’s competence to adjudicate disputes arising out of a defendant’s activities anywhere in the world. Absent consent or submission, international instruments reserve general jurisdiction over corporations to the states in which the corporation has its registered office, centre of administration, or principal place of business. The bases of general jurisdiction under the Court Jurisdiction and Proceedings Transfer Act (CJPTA) are far broader and include simply having a place of business in the forum or even registering to carry on business there. This article locates the conceptual roots of the CJPTA approach in the traditional common …

Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier

Osgoode Hall Law Journal

This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Hague Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court of Canada decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the …

Three Objections To Forum Of Necessity: Global Access To Justice, International Criminal Law, And Proper Party, Sagi Peari

Osgoode Hall Law Journal

In civil procedure, the plaintiff is the one who initiates the litigation process. In which forum can he or she initiate this process? In very general terms, the Canadian rules of judicial jurisdiction provide the plaintiff with three options for jurisdiction acquisition. First, the jurisdiction can be acquired based on explicit agreement between the plaintiff and the defendant as to the identity of the forum to adjudicate the case. Second, the plaintiff can initiate the litigation in the forum that has the so-called “real and substantial connection” between it and the parties’ specific interaction under the given ground of liability …

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect of any plaintiff …

Bristol-Myers Squibb Co. V. Superior Court: Reproaching The Sliding Scale Approach For The Fixable Fault Of Sliding Too Far, John V. Feliccia

Maryland Law Review

No abstract provided.

The Role Of Reconciliation Institute In The Protection Of Human Rights, B Yarashev

ProAcademy

In the article, the basic prin ciple s o f re con cilia tio n institute a n d hum an rights p ro te c tio n o f this institute a re discussed. M o reo ve r, in re cen t years, o u r legislation has o ffe re d le g a l e valu a tion fo r the re con cilia tio n institution as o n e o f the stages o f the crim in a l justice liberalization.

The Role Of Reconciliation Institute In The Protection Of Human Rights, B Yarashev

ProAcademy

In the article, the basic prin ciple s o f re con cilia tio n institute a n d hum an rights p ro te c tio n o f this institute a re discussed. M o reo ve r, in re cen t years, o u r legislation has o ffe re d le g a l e valu a tion fo r the re con cilia tio n institution as o n e o f the stages o f the crim in a l justice liberalization.

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Dual Sovereignty Is Out, Time For Concurrent Jurisdiction To Shine, Scott Jacobson

William & Mary Environmental Law and Policy Review

No abstract provided.

Personal Jurisdiction And The Web, Joseph S. Burns, Richard A. Bales

Maine Law Review

Courts have struggled in determining precisely when a defendant should be subject to suit in a particular forum based on his or her Web activity. Although most jurisdictions have applied some form of the “minimum contacts” test, the test has been applied inconsistently. A new standard is needed to resolve personal jurisdiction disputes arising out of Web activity. This Article examines the ways in which modern courts have attempted to resolve personal jurisdiction issues based on Web activity, as well as the inconsistencies that have resulted from the inherent difficulty in conceptualizing the Web.

Extraterritorial Human Trafficking Prosecutions: Eliminating Zones Of Impunity Within The Limits Of International Law And Due Process, Caroline A. Fish

St. John's Law Review

(Excerpt)

This Note argues that the Baston court was incorrect both in finding the Amendment consistent with the protective principle and in its analysis of the defendant’s nexus with the United States. This Note asserts, instead, that (1) the Amendment is not valid under any traditional bases of prescriptive jurisdiction but is consistent with the United States’ international obligations to “extradite or prosecute,” and (2) the Amendment may be applied under the international anti-trafficking conventions to foreign defendants present in the United States, regardless of nexus, without violating due process.

Part I of this Note describes the complex nature of …

Intergovernmental Federalism Disputes, Lochlan F. Shelfer

Georgia Law Review

Constitutional litigation is increasingly being waged
between governments, in both suits between a state and
the United States, and suits between two or more states.
The jurisdictionof the Federalcourts to hear such suits,
however, is disputed. The Supreme Court's cases are
famously difficult to reconcile, with some denying
jurisdiction and other seemingly identical cases
addressing the merits without discussing jurisdiction.
Some scholars have argued that intergovernmental
disputes over political jurisdiction historically are not
justiciableand that it is constitutionally illegitimate for
the Court to hear them. Recently, some scholars have
argued that the Court should hear such cases, but have
assumed …

Rethinking Removal And "Relates To": International Arbitration Disputes And The N.Y. Convention, Holly Wilson

University of Richmond Law Review

Part I explores the historical roots of the Convention,

discusses the evolution of its removal provisions, and explains how

it functions in the district courts today. Part II addresses the arguments

in favor of reverting to the Ruhrgas standard. This article

demonstrates that the current judicial interpretation of the Convention's

removal provisions under Beiser is too broad and that the

stricter construction under Ruhrgas should be re-adopted. Part II

examines three key reasons why the current Beiser standard is unworkable:

the current standard (1) leads to absurd results, (2) disrespects

notions of federalism and strains comity, and (3) in conjunction …

Extraterritoriality And The Alien Tort Statute— Narrow Application Preserves Crucial Boundaries, Alicia Pitts

SMU Law Review

No abstract provided.