Law Commons^™

When Judges Were Enjoined: Text And Tradition In The Federal Review Of State Judicial Action, Alexandra Nickerson, Kellen R. Funk

Faculty Scholarship

It is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime. In such cases, injunctive relief against judicial officers may be the only or most effective remedy against constitutional violations, but federal courts from the trial level up to …

The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …

Automating Fairness? Artificial Intelligence In The Chinese Court, Rachel E. Stern, Benjamin L. Liebman, Margaret Roberts, Alice Z. Wang

Faculty Scholarship

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Internet Jurisdiction: Using Content Delivery Networks To Ascertain Intention, Patrick Lin

LL.M. Essays & Theses

Specific jurisdiction in civil litigation centers on the rather general,yet immutable, concept of intention. Although the word “intention” does not surface prominently in the personal jurisdiction case law, it is clearly intrinsic to the concept of “purposeful availment”. On the Internet, however, intention is hard to ascertain: how does a court, for example, determine whether the defendant intended that its website, application, or advertisement within a mobile application should end up in the forum state? In answering such a question, courts have historically used one of two approaches to establish intent: (i) a targeting test or (ii) a degree of …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

The Sources Of Immunity Law – Between International And Domestic Law, Lori Fisler Damrosch

Faculty Scholarship

The immunities regimes covered by this volume presuppose the existence of juridically equal States whose interactions are governed by international law. States engage in international relations with each other through a variety of agents, who could be individuals or legal persons; and States likewise establish international organizations for carrying out shared purposes. Each State has a domestic legal system through which State actors generate various sorts of executive, judicial and legislative practice, all of which can in principle be evidence of the international law of immunities.

The several regimes relevant to the immunities of the State itself, and of international …

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Faculty Scholarship

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

What Does It Mean To Be ‘Pro-Arbitration’?, George A. Bermann

Faculty Scholarship

International arbitration commentators commonly ask of a proposed policy or practice whether it is ‘pro-’ or ‘anti-arbitration’. Framing the question that way presupposes a shared understanding of what does or does not make a policy or practice arbitration-friendly. In truth, the ways in which policies or practices may affect international arbitration’s well-being are manifold. They may even distinctly serve international arbitration’s well-being in some respects while equally distinctly disserving it in others. It behooves those who take international; arbitration’s well-being seriously to acknowledge the multiplicity of metrics for identifying what is ‘pro-’ and what is ‘anti-arbitration’ and to seek the …

Introduction: Troubling Transparency, David E. Pozen, Michael Schudson

Faculty Scholarship

Transparency is a value in the ascendance. Across the globe, the past several decades have witnessed a spectacular explosion of legislative reforms and judicial decisions calling for greater disclosure about the workings of public institutions. Freedom of information laws have proliferated, claims of a constitutional or supra-constitutional "right to know" have become commonplace, and an international transparency lobby has emerged as a civil society powerhouse. Open government is seen today in many quarters as a foundation of, if not synonymous with, good government.

At the same time, a growing number of scholars, advocates, and regulators have begun to raise hard …

Federalism All The Way Up: State Standing And "The New Process Federalism", Jessica Bulman-Pozen

Faculty Scholarship

This commentary considers what federalism all the way up means for Gerken’s proposed new process federalism. The state-federal integration she documents underscores why judicial policing of “conditions for federal-state bargaining” cannot be limited to state-federal relations in the traditional sense. It must extend to state challenges to the allocation and exercise of authority within the federal government. The new process federalism would therefore do well to address when states will have standing to bring such cases in federal court. After Part I describes contemporary federalism-all-the-way-up litigation, Part II suggests that Gerken’s “Federalism 3.0” complicates both traditional parens patriae and sovereignty …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

The Kiobel Presumption And Extraterritoriality, Sarah H. Cleveland

Faculty Scholarship

With its modem rebirth in Filartiga v. Pena-Irala, the Alien Tort Statute (ATS) held out a potentially transformative promise. By establishing a forum in the United States for a victim of torture that had occurred at the hands of a Paraguayan police inspector in Paraguay, the ATS offered to emancipate the state-centered Westphalian system from a narrow focus on territorial sovereignty, and move toward a more globalized community focused on the protection of universal values. The ATS recognized that modem human rights perpetrators, victims, and violations move easily across borders, and that transnational accountability for such violations is in the …

Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw

Faculty Scholarship

This Article revisits the history of Critical Race Theory (CRT) through a prism that highlights its historical articulation in light of the emergence of postracialism. The Article will explore two central inquiries. This first query attends to the specific contours of law as the site out of which CRT emerged. The Article hypothesizes that legal discourse presented a particularly legible template from which to demystify the role of reason and the rule of law in upholding the racial order. The second objective is to explore the contemporary significance of CRT's trajectory in light of today's "post-racial" milieu. The Article posits …

Copyright Without Borders? Choice Of Forum And Choice Of Law For Copyright Infringement In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders.

My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright …

Apocalypse Next Time?: The Anachronistic Attack On Habeas Corpus/Direct Review Parity, James S. Liebman

Faculty Scholarship

Today, a district court's habeas corpus review of the constitutionality of a state criminal conviction and the Supreme Court's direct review of the same question are nearly identical. Last Term, in Wright v. West, an otherwise mundane criminal procedure case, the Supreme Court rewrote the question presented to ask whether the parity between federal habeas corpus and direct appellate review should be destroyed. The Court proposed abandoning in habeas corpus an important trait shared by the two modes of review – de novo consideration of legal and mixed legal-factual questions.

To those who value meaningful habeas corpus review, the …

The Use Of Anti-Suit Injunctions In International Litigation, George A. Bermann

Faculty Scholarship

Of the various forms of provisional relief in the context of inter-national litigation, none has sparked as much interest and controversy as the international anti-suit injunction. In many ways the international anti-suit injunction, an instrument by which a court of one jurisdiction seeks to restrain the conduct of litigation in another jurisdiction, resembles more conventional forms of international provisional relief such as the foreign attachment or preliminary injunction. Like them, the anti-suit injunction affords courts an important opportunity to affect the course and significance of litigation abroad. However, such intervention strongly implies – and often actually creates – jurisdictional conflict …

Federal Jurisdiction, Ronald J. Mann

Faculty Scholarship

One important task of the federal judiciary is to resolve cases presenting tensions between national and state governments. The United States Court of Appeals for the Fifth Circuit justly is renowned for its work in this area. One major, if not sensational, arena in which these tensions surface is in cases presenting issues of federal jurisdiction, pursuant to which federal courts allocate power between the national and state judicial systems.

During the survey period the Fifth Circuit published almost one hundred opinions dealing with substantive issues of federal jurisdiction. Like others before me, I have not undertaken in this essay …

Accountable Accountants: Is Third-Party Liability Necessary?, Victor P. Goldberg

Faculty Scholarship

Should accountants be liable to third parties if they conduct an audit in negligent manner? A half century ago, in Ultramares Corporation v. Touche, Niven & Co., Cardozo argued that they should not, unless their performance could be characterized as fraud. In recent years, courts in a minority of jurisdictions have concluded that Cardozo's argument is no longer compelling and they have found that "foreseeable" third parties could bring a tort action for ordinary negligence against the accountants. In addition to being subject to tort actions, accountants may also be liable under federal and state securities laws.

Suits against …

Federal Jurisdiction Over Preemption Claims: A Post-Franchise Tax Board Analysis, Ronald J. Mann

Faculty Scholarship

As Congress uses the commerce power to regulate areas of the economy previously controlled by the states, federal statutes conflict with state law with increasing frequency. When such conflicts occur, federal law "preempts" the state law under the supremacy clause of the United States Constitution. Litigants who foresee a preemption issue often seek a declaratory judgment of preemption or nonpreemption in order to clarify their rights and duties. This Note addresses the scope of federal question jurisdiction over declaratory judgment actions in which preemption is the only federal question raised.