Law Commons^™

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein

Christine A. Klein

As a metaphor for the interaction of law and culture, a crystal-clear bottle of water is striking in its simplicity and purity. Bottled water has spawned a rich subculture of beverage drinkers, united by the truths and myths of bottled water that they embrace. More recently, an equally fertile subculture of bottled water protest has begun to coalesce. Notably, the cultural norms evidenced by supporters and detractors go far beyond mere hydration, touching upon such far-flung notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast, the legal narrative is surprisingly sparse, overlooking an important opportunity to …

In Search Of Removal Jurisdiction, Scott Dodson

Scott Dodson

The ubiquitous and somewhat careless use of the term “jurisdictional” by courts has spawned confusion over what is and is not jurisdictional in a variety of contexts, including removal. The issue has critical implications for litigants. Yet it lacks scholarly coverage and is the subject of deep divisions in the lower courts. In this Article, I develop an initial framework for characterizing provisions of the removal statute as jurisdictional or procedural. I build upon the groundwork laid by prior precedent and modify it to account for the quasi-jurisdictional nature of removal and its impact on the federal-state balance of power. …

Mandatory Rules, Scott Dodson

Scott Dodson

Whether a limitation is jurisdictional or not is an important but often obscure question. In an Article forthcoming in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity …

Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson

Scott Dodson

This short essay, replying to the responses of Professors Burch and Dane and Mr. Poor, address their critiques of my original essay, "Jurisdictionality and Bowles v. Russell."

The Failure Of Bowles V. Russell, Scott Dodson

Scott Dodson

Last term, the Supreme Court decided Bowles v. Russell—perhaps the year’s most underrated case—which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance. In so holding, the Court overstated the supporting precedent, inflated the jurisdictional importance of statutes, and undermined an important recent movement to clarify when a rule is jurisdictional and when it is not. This did not have to be. The Court missed a golden opportunity to chart a middle course—holding the rule mandatory but nonjurisdictional—that would have been more consistent with precedent while resolving the …

A Slapp In The Face: Why Principles Of Federalism Suggest That Federal District Courts Should Stop Turning The Other Cheek, Lisa Litwiller

Lisa Litwiller

This article examines the nexus between state and federal law where SLAPP and Anti-SLAPP statutory schemes are litigated by a federal district court sitting in diversity. In particular, this article will explore the standard the federal court should apply when an Anti-SLAPP early motion to dismiss is brought by SLAPP defendant and the plaintiff challenges dismissal on the basis of the Federal Rules of Civil Procedure pursuant to the regime established by the Supreme Court in Hannah v. Plumer.

Recovering The Social Value Of Jurisdictional Redundancy, Alexandra D. Lahav

Alexandra D. Lahav

This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for …

Infringement & The International Reach Of U.S. Patent Law, Moin A. Yahya, Cameron Hutchison

Moin A Yahya

American Patent Law, through both judicial and legislative efforts, has evolved from a strict territorial based set of laws asserting jurisdiction only over those infringements taking place on American soil to a more expansive set of rules asserting jurisdiction over any event that may harm patent holders in the United States regardless of where the infringement is taking place. This, we argue, is contrary to the original purpose of Patent Law and inconsistent with American obligations under the International Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). We argue for a return to territorial based rules of jurisdiction. Such a …

The Universal Declaration Of Human Rights At Sixty: Is It Still Right For The United States?, Tai-Heng Cheng

Tai-Heng Cheng

Many scholars and human rights advocates have hailed the Universal Declaration of Human Rights as a triumph for the human rights movement. The occasion of its sixtieth anniversary in 2008 provides pause to appraise if in fact it has been a success and whether it still is of any value to the United States. To conduct such an appraisal, this article reviewed the contemporaneous records of negotiations leading to the adoption of the Declaration by the UN General Assembly. It also reviewed the decisions of U.S. federal and state courts, the International Court of Justice, and Australian courts that have …

Jurisdictionality And Bowles V. Russell, Scott Dodson

Scott Dodson

When is a limitation “jurisdictional,” and when is it not? Litigators encounter these questions all the time in statutory coverage issues, in time limitations, and in a host of other preconditions. They are critical, for jurisdictional limitations are not subject to waiver or equitable exceptions, may be raised at any time, and obligate courts to monitor and raise them sua sponte. In Bowles v. Russell, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional. This essay critiques Bowles, predicts some of the difficulties that it might cause, and offers a better approach.

A Alteração Do Regimento Interno Do Supremo Tribunal Federal Para A Aplicação Da Repercussão Geral Da Questão Constitucional No Recurso Extraordinário, Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Mandatory Gun Ownership, The Militia Census Of 1806, And Background Assumptions Concerning The Early American Right To Arms: A Cautious Response To Robert Churchill, William G. Merkel

William G. Merkel

The Forum Defendant Rule In Arkansas, Scott Dodson

Scott Dodson

This article analyzes the circuit split (between the Eighth Circuit and the other circuits) on the jurisdictionality of the forum defendant rule, the rule that prevents a resident defendant from removing a state case to federal court on diversity grounds.

European Law In American Courts: Foreign Law As Evidence Of Domestic Law, Eric A. Engle

Eric A. Engle

The article outlines instances where the U.S. Supreme Court has considered E.U. laws (and foreign law, generally) in its decision making process to explain how and when foreign law may be succesfully invoked by litigants.

Corporate Militaries And States: Actors, Interactions And Reactions, Benedict Sheehy

Benedict Sheehy

Following the military forces of the US and the UK, PMF's make up the third largest contingent in Iraq. The article examines the interaction between states and PMF's, problems with their use for both contracting states and those where the PMF is operating. It provides six case studies and an examination of state legal responses.

Svensk Domstols Behörighet Vid Gränsöverskridande Varumärkestvister – Särskilt Om Internetrelaterade Intrång [Jurisdiction In Cases Of Cross-Border Trademark Infringements], Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …

Os Embargos De Retenção Por Benfeitorias Nas Ações Executivas 'Lato Sensu', Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Some Reflexions Concerning Jurisdiction In Cases On Cross-Border Trademark Infringements Through The Internet, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Wrong Claim, Wrong Party, Wrong Court: Assessing The Petition Brought By A Coalition Of Clergy, Lawyers, & Professors On Behalf Of Detainees Held By The U.S. Military In Guantanamo Bay, Cuba, John C. Eastman

John C. Eastman

This brief article assesses the merits of the habeas corpus petition filed by a group of Los Angeles-based attorneys and professors on behalf of terrorists being detained by the United States in Guantanamo Bay, Cuba. It argues that the petitioners had no standing; that the Central District of California had no geographic connection and therefore no jurisdiction; and that the Constitution's guarantee of the writ of habeas corpus did not does not extend to non-citizens beyond the borders and sovereign authority of the United States.

Antitrust And International Regulatory Federalism, Andrew T. Guzman

Andrew T Guzman

In this Essay, Andrew Guzman proposes internationalization of antitrust law to supplant current methods of antitrust regulation across national borders. Specifically, instead of relying on local regulation, bilateral agreements between states, or a choice-of-law rule for antitrust enforcement, countries should adopt universal substantive standards. Moreover, Guzman recommends the World Trade Organization (WTO), which already employs a dispute resolution mechanism, as the governing forum for international antitrust issues. There, states can negotiate transfer payments in one international transaction to achieve agreement in another. Upon evaluating Professor Eleanor Fox’s proposal of a stand-alone World Competition Forum that would specialize exclusively in international …

Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan

Donald J. Kochan

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a …

Note, Alien Corporations And Federal Diversity Jurisdiction, Geoff Moulton

Geoff Moulton

No abstract provided.