Law Commons^™

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

ExpressO

This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

The Impact Of Specialized Courts On Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang

ExpressO

Today a considerable volume of federal caseload is under the jurisdiction of specialized courts at both district level and circuit level. Ironically, neither judicial scholars nor political scientists treat this topic as a priority in their research agenda. Therefore, what the exact impact of specialized courts on the federal judicial system has yet been carefully explored. The current study makes a primary effort to empirically figure out the systematic impact of specialized trial courts on the U.S. federal judicial system. By focusing on the simplest situation in history where both generalist trial courts and specialized trial courts were only under …

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

ExpressO

Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Airline Liability For Loss, Damage Or Delay Of Passenger Baggage, M. R. Franks

ExpressO

The article discusses remedies and methods of enforcing airline liability for loss, damage or delay of passenger baggage. The article includes a discussion of the law as it relates both to domestic flights and to international flights where passenger luggage is lost, damaged or delayed. The article includes a discussion of the Warsaw Convention as it relates to international flights and of the Federal Aviation Regulations applicable in the case of domestic flights.

Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah J. Challener

ExpressO

When a federal court grants an abstention-based dismissal in a diversity case, the court abdicates its strict duty to exercise its jurisdiction where that jurisdiction has been properly invoked. Thus, a federal court may not dismiss a case on abstention grounds unless it concludes that "exceptional circumstances" require the dismissal. When a federal court grants an abstention-based stay in a diversity case, however, the court does not violate its jurisdictional duty. According to the Supreme Court, an abstention-based stay is merely a postponement of the exercise of jurisdiction. Although the Court has characterized an abstention-based stay as a delay rather …

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.

Power Or Prudence: Which Is It?, Lisa A. Dolak

ExpressO

In limiting patent litigants’ access to the declaratory judgment remedy, the U.S. Court of Appeals for the Federal Circuit has primarily invoked the “actual controversy” requirement imposed by the U.S. Constitution and the federal Declaratory Judgment Act. However, an examination of Federal Circuit decisions and those of the district courts reveals that the courts have often confused, or blurred the distinction between, constitutional requirements and the discretion the Act affords the federal courts to decline to exercise jurisdiction. Specifically, the courts often attribute constitutional significance to factors that instead bear on policy.

It is important to distinguish between jurisdictional limits …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

An Empirical Assessment Of Federal Question Jurisdiction, Jack F. Preis

ExpressO

For ages, judges and legal academics have claimed that federal question jurisdiction has three purposes: to provide litigants with a judge experienced in federal law, to protect litigants from state court hostility toward federal claims and to preserve uniformity in federal law. Although one could fill a small library with books and articles endorsing this conception of federal question jurisdiction, one would be hard-pressed to find a single article testing these rationales empirically.

This Article seeks to be the first such piece of scholarship. Based on a study of thousands of state court cases across fifteen different states, it first …

Standing For Extraterritoriality: Defining The Empagran Exception, Max Huffman

ExpressO

Efforts by private plaintiffs to enforce the U.S. antitrust laws extraterritorially have become an enormous industry. A reflection of the challenges facing federal courts in this global age, F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran) held the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) precluded the assertion by U.S. courts of jurisdiction over claims by foreign plaintiffs alleging harm felt in wholly foreign commerce.

Empagran left an exception that undermines its general rule. Plaintiffs able sufficiently to show “the anticompetitive conduct’s domestic effects were linked to their foreign harm” are excepted from the preclusion. This is the “Empagran exception.” …

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

Thinking Outside The Border: Homeland Security And The Forward Deployment Of The U.S. Border, Gregory W. Bowman

ExpressO

Following the September 11, 2001, terrorist attacks, the U.S. government implemented a number of inbound cargo security programs it described as “pushing the border outward” or “expanding [the U.S.] perimeter of security.” Are these statements rhetorical flourish, or do these programs materially affect international cargo trade? This article argues that far from being mundane or rhetorical, these cargo security programs are transforming how U.S. borders operate from both a conceptual and practical perspective. Specifically, by moving certain aspects of border functionality to locations well-removed from the physical U.S. border, these programs make U.S. regulation of inbound trade significantly more extraterritorial. …

“Thinking Globally, Acting Locally”: Recent Trends In The Recognition And Enforcement Of Foreign Judgments In Canada, Antonin I. Pribetic

ExpressO

The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for …

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

ExpressO

The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and …

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Consistent “Deeming”: A Cohesive Construction Of 28 U.S.C. § 1332 In Cases Involving International Corporations And Permanent-Resident Aliens., Rory M. Ryan

ExpressO

Two categories of alienage-jurisdiction cases have proven troublesome: cases involving permanent-resident aliens and cases involving international corporations. Jurisdiction in these categories depends upon the construction of 28 U.S.C. § 1332’s deeming provisions. The permanent-resident deeming provision and the corporate deeming provision operate uncontroversially to remove certain cases from federal jurisdiction, but controversy exists as to what extent they create jurisdiction that did not exist before the amendments that added the deeming provisions. The results and analytical approaches in these categories have varied, and the resulting confusion is unsatisfactory. The cases in this area are plagued by a structural flaw—while framing …

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.

The Sosa Decision, Jeffrey P. Saxon

ExpressO

The manner in which international law is applied by the domestic courts of the United States has been an issue without any definitive boundaries since 1789. It is unclear as to the type and extent of international law that could be brought as a cause of action inside the United States for events that occurred outside its borders. The landmark case of Sosa v. Alvarez-Machain, decided by the Supreme Court in 2004, has changed the landscape in this area. This decision will alter the field of domestic enforcement of international law by making it exceedingly difficult for an non-citizen to …

The Application Of Federal Common Law To Overcome Conflicting State Laws In The Supplemental Disgorgement Proceedings Of An Sec Appointed Receiver, Gauhar Naseem

ExpressO

In spite of the Erie doctrine, the application of federal common law has survived to overcome conflicting state laws in diversity actions where a federal law, interest or function is implicated. A federal court’s authority to substantively implement a federal common law rule over state law is clearest when the party to the action is a federal entity, namely an agency of the U.S. Government deriving its authority from the Constitution or some source of federal law. Analyzing such authority becomes more difficult in circumstances where parties to a diversity lawsuit are private citizens (not necessarily possessing any direct federal …

Multi-Tiered Marriage: Ideas And Influences From New York And Louisiana To The International Community, Joel A. Nichols

ExpressO

This Article contends that American society needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end -- both within and without the United States -- which might serve as the framework for further discussions.

Within the United States, the relatively new covenant marriage …

The Action Bias In American Law: Internet Jurisdiction And The Triumph Of Zippo Dot Com, Richard Greenstein

ExpressO

American law reflects the stories we tell ourselves about who we are as a nation. To illustrate the effect of America’s stories on the law, I identify and describe in this essay a particular characteristic of American law: an “action bias” – a propensity to bestow disproportionately greater legal significance upon affirmative acts than on failures to act – and I argue that this bias reflects, in turn, a powerful myth at the core of the self-image of the United States, a myth I call the “Immigrant’s Tale.”

To illustrate this thesis, I give a number of instances of the …

How Do You Take Your Multi-State, Class-Action Litigation? One Lump Or Two?, Daniel R. Karon

ExpressO

The Class Action Fairness Act of 2005, which essentially federalizes all multi-state class-action cases, has introduced the class-action bar, and necessarily the judiciary, to myriad substantive and procedural issues never before envisioned in class-action litigation’s history. While some of these issues have already surfaced, many others haven’t but will as newly federalized multi-state class-action lawsuits move through litigation to the class certification stage. A major and unavoidable issue involves whether federal judges, when deciding multi-state claims’ class certification under Federal Rule 23, may consider well-developed, state class-action jurisprudence applying a single state’s substantive law or whether doing so violates the …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

Certifying Questions To Congress, Amanda Frost

ExpressO

As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear – particularly issues that implicate the statute’s constitutionality – the court could stay the case and refer the question to Congress, much in the same way that courts …

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …

No Welcome Mat, No Problem?: Federal-Question Jurisdiction After Grable, Rory M. Ryan

ExpressO

For nearly 20 years, the Supreme Court’s federal-question jurisprudence was muddied after the Court’s decision in Merrell-Dow. Last term, the Court issued a much-needed clarification in Grable. But that clarification needs clarification. In this Article, Professor Ryan endeavors to provide a candid synthesis of what the law is after Grable. While this area is rich with debate about what the law should be, a candid post-Grable synthesis is needed both to guide courts and to provide a common ground for these debates. Even such a modest task, however, is formidable. Federal-question jurisdiction is not a concept that can be viewed …

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …