Jurisdiction Commons^™

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield

Eric Porterfield

Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at …

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

Federal Court Interpretation Of Attorney's Fees Provision Of Equal Access To Justice Act As It Applies To Hearings Of The United States Department Of Agriculture: United States Department Of Agriculture V. Lane, Tamara Carnovsky

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Deferential Review Of An Administrative Agency's Decision In Federal District Court: International College Of Surgeons V. City Of Chicago , Karen L. Vinzant

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Federal Judicial Conduct And Disability System: Unfinished Business For Congress And For The Judiciary, Arthur D. Hellman

Testimony

For most of the nation’s history, the only formal mechanism for dealing with misconduct by federal judges was the cumbersome process of impeachment. That era ended with the enactment of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (1980 Act or Act). In 2002, Congress made modest amendments to the Act and codified the provisions in Chapter 16 of Title 28. In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved the first set of nationally binding rules for misconduct proceedings.

Under the 1980 Act and …

Explaining The Supreme Court's Interest In Patent Law, Timothy R. Holbrook

IP Theory

No abstract provided.

The Supreme Court's Take On Immigration In Nken V. Holder: Reaffirming A Traditional Standard That Affords Courts More Time And Flexibility To Decide Immigration Appeals Before Deporting Aliens, Elizaveta Kabanova

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

California And Uncle Sam's Tug-Of-War Over Mary Jane Is Really Harshing The Mellow, Daniel Mortensen

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Too Much Process, Not Enough Service: International Service Of Process Under The Hague Service Convention, Eric Porterfield

Eric Porterfield

Service of process under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is too costly, time consuming, and unreliable. The Hague Service Convention’s defining feature – the Central Authority system – adds unwarranted expense and delay to the already expensive and protracted process of civil litigation. Worse, however, is the fact that the Central Authority completely fails to effect service on a foreign party in a significant percentage of cases. For decades, courts and commentators have argued over whether the Hague Service Convention actually permits litigants to sidestep the …

Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp

All Faculty Scholarship

The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Aviation Litigation: Federal Preemption And The Creation Of A Federal Remedy As A Means To Extinguish The Current Confusion In The Courts, Deborah J. Olsen

Pepperdine Law Review

No abstract provided.

Federal Discretion In The Prosecution Of Local Political Corruption, Andrew T. Baxter

Pepperdine Law Review

Federal prosecutors' awareness of political corruption at the state and local levels has recently increased concomitantly to the incidence of disclosures and prosecutions of similar corruption at the federal level. Because local law enforcement officials have frequently been unable or unwilling to pursue local political corruption, federal prosecutors have increasingly assumed responsibility for the policing of non-federal political criminal activity, even in the absence of definitive statutory grounds. In this article, the author examines the legal basis upon which federal prosecution of local political corruption is conducted. It is asserted that existing federal judicial and legislative limitations provide an inexact …

Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, Katherine J. Florey

Katherine J. Florey

If there is one point about tribal status that the Supreme Court has stressed for decades if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated to many tribes that uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit …

(Still) A "Real And Substantial" Mess: The Law Of Jurisdiction In Canada, Tanya Monestier

Law Faculty Scholarship

No abstract provided.

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel

Articles

When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld

Articles

On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL …

Human Rights Litigation And The National Interest: Kiobel'S Application Of The Presumption Against Extraterritoriality To The Alien Tort Statute, Jonathan Hafetz

Maryland Journal of International Law

No abstract provided.

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.