Law Commons^™

Mcmillan V. Mcmillan: Choice Of Law In A Sinkhole, Doug R. Rendleman

Doug Rendleman

No abstract provided.

History Of The Statutory Rules Of Federal Jurisdiction And Procedure, Robert C. Brown

Dr Robert Brown

No abstract provided.

Domicile Versus Situs As The Basis Of Tax Jurisdiction, Robert Brown

Dr Robert Brown

Address by Robert C. Brown, Professor of Law at Indiana University School of Law, delivered at the National Tax Conference, Indianapolis, Indiana, October, 1936.

Modalities For Advancing Cross-Sectoral Cooperation In Managing Marine Areas Beyond National Jurisdiction, Kristina Gjerde, Jeff Ardron, Sarah Gotheil, Quentin Hanich, Francois Simard, Robin Warner, Patricio Bernal, Serge Garcia, Jihyun Lee, Michael Lodge, Imen Meliane, Jake Rice, Jessica Sanders

Robin Warner

[extract] Introduction 1. This report provides information and advice to the Secretariats and Member States of Regional Seas Conventions & Action Plans (RSCAPs) on modalities for advancing crosssectoral cooperation to progress internationally agreed conservation and sustainable use goals in marine areas beyond national jurisdiction.

Jurisdiction And Nation-Building: Tall Tales In Nineteenth-Century Aotearoa/New Zealand, Nan Seuffert

Professor Nan Seuffert

Que.stions of jurisdiction involve the determination of the boundaries of the law. Notions of modern territorial jurisdiction emerged with the development of the modern natioin-state as the bounded territory in which a particular set of laws applIed. These modern notions of both nation-state and jurisdiction facilitated colonisation by determining the territorial boundaries in which colonial law applied, by determing the national space to other nations, and by producing difference within national and jurisdictional boundaries. The production of internal difference, the creation of differences between distinct groupings through the law's jurisdictional speech, is arguably the most important work that jurisdiction performs …

Same-Sex Divorce In The Conflict Of Laws, Herma Hill Kay

Herma Hill Kay

No abstract provided.

Law Of Trade In Human Rights: A Legal Analysis Of The Intersection Of The General Trade Agreement Of Tariff’S Article Xx(B) And Labor Rights Of Children., Paul Cook

Paul Cook

China's child labor is on the rise with its 8% annual economic growth. Children are valued for their labor for several reasons: their cheaper price, their ignorance of their legal rights, their dexterous hands, and good eye sight. The use of juvenile labor is most prevalent in the following industries: toy production, textiles, construction, food production, and light mechanical work. Underage laborers are particularly vulnerable to job related hazards resulting in injury and death, and this is because they tend to be less aware of workplace hazards than do adult workers. Children begin work as early as twelve years old …

Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson

Scott Dodson

This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.

The (Too) Long Arm Of The S.E.C.: When A Foreign Employee Of A U.S.-Based Multinational Financial Services Client Is Threatened With A Subpoena, Jonathan R. Law

Jonathan R Law

As businesses and financial institutions engage in transactions with increasingly international scope, U.S. regulatory agencies follow closely behind, investigating potential violations of the securities and exchange laws. Of all the investigative powers of the Securities and Exchange Commission, one of the more feared is the ability to issue administrative subpoenas and have them enforced by a Federal court. What is troubling, however, is the SEC’s recent foray into investigating possible misconduct across U.S. borders through subpoenaing foreign employees conducting business overseas. This article argues that in certain circumstances, the SEC does not have the authority to issue or enforce an …

Adr’S Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Lee Kovarsky

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

Lydia R. Nussbaum

Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid unnecessary foreclosures than others. This article comprehensively examines the key …

Viewing The "Same Case Or Controversy" Of Supplemental Jurisdiction Through The Lens Of The "Common Nucleus Of Operative Fact" Of Pendent Jurisdiction, Douglas D. Mcfarland

Douglas D. McFarland

When a federal court has jurisdiction of a claim, supplemental jurisdiction of § 1367(a) allows the court to adjudicate all parts “of the same case or controversy under Article III.” This article argues that the best way to interpret that phrase is by examining the meaning of “common nucleus of operative fact,” the test for its ancestor pendent jurisdiction. Through that lens, “same case or controversy” means the broad grouping of facts, without regard to legal theories or categories, that a lay person would expect to be tried together. And in limning the boundaries of that grouping of facts, the …

Protecting The Diversity Of The Depths: Environmental Regulation Of Bioprospecting And Marine Scientific Research Beyond National Jurisdiction, Robin M. Warner

Robin Warner

As scientific knowledge of marine areas beyond national jurisdiction increases and developments in oceans technology permit greater access to the high seas water column and the deep seabed, new and more intensive uses of these areas occur with consequential impacts on the marine environment. The discovery of hydrothermal vents in 1977 revealed communities of organisms with unique genetic and biochemical properties which can be used for a seemingly limitless catalogue of medical, pharmaceutical and industrial applications. Similar repositories of genetic and biochemical resources have been discovered in other deep sea environments such as cold water seeps and it is expected …

Preserving A Balanced Ocean: Regulating Climate Change Mitigation Activities In Marine Areas Beyond National Jurisdiction, Robin M. Warner

Robin Warner

The damaging effects of anthropogenically induced climate change on both the terrestrial and marine environments have been acknowledged by a succession of expert reports commissioned by global and national bodies. This recognition has spawned heightened levels of activity by scientists, engineers and entrepreneurs to mitigate the adverse effects of climate change. Multiple schemes have been suggested to ameliorate the adverse effects of climate change on the environment caused by the burning of fossil fuels and other greenhouse gas emissions including enhanced schemes to remove carbon dioxide from the atmosphere. The ability of the ocean to absorb rising levels of carbon …

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

Rodger Citron

No abstract provided.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Expanding The Federal Common Law?: From Nomos & Physis And Beyond, Sam Kalen

Sam Kalen Mr.

The Supreme Court’s recent decision in AEP v. Connecticut, as well as a prominent Seventh Circuit case last year, reflect an emerging effort to test the federal judiciary’s willingness to expand the federal common law to include claims for interstate pollution. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. Building on existing scholarship and a more thorough review of the cases than has occurred in the past, this article attempts to prompt a searching dialogue about the jurisprudential …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Lee Kovarsky

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as “lawful” custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. “A Constitutional Theory of Habeas Power” is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Standing Doctrine's Dirty Little Secret, Evan Lee, Josephine Mason

Evan T. Lee

For at least forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or eliminate altogether the imminence, redressability, and even injury-in-fact requirements in most so-called “procedural rights cases”—cases in which there exists a statutory right to judicial review regardless of the plaintiff’s own personal interest in the matter. After asking whether the Necessary and Proper Clause could augment Article III to close up this gap, we conclude that the …

Dog-Eat-Dog: The Paradox Between The Ninth Circuit’S Treatment Of Idea Submission Cases And The Harsh Reality Of Show Business, Brigid S. Mcnally

Brigid S. McNally

Hollywood is much akin to an oligarchy, with most of its power concentrated in a few top studios. The creative sides of the entertainment industry—namely screenwriters— have become the unfortunate victims of this power imbalance. In an effort to recognize the woes of these screenwriters and mitigate the unfair nature of this unequal bargaining power, the Ninth Circuit has sought to safeguard the interests of screenwriters through its interpretation of implied-in-fact contracts. Despite the 1976 revisions to the Copyright Act, which now afford protection to these screenwriters, the Ninth Circuit continues to reaffirm the usage of implied-in-fact “Desny” claims as …

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Michael L Perlin

ABSTRACT

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.

In Asia and the Pacific region, however, there is no such body. Although …

Meet The New Juvenile And Domestic Relations District Court, Ingrid Michelsen Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

Watered-Down Rights On The High Seas: Hirsi Jamaa And Others V Italy, Mariagiulia Giuffré

Mariagiulia Giuffré

No abstract provided.

Consent In Context: Fulfilling The Promise Of International Arbitration (Multiparty, Multi-Contract, And Non-Contract Arbitration), Preface By Jan Paulsson, Karim Youssef

Dr. Karim Y Youssef

No abstract provided.