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Jurisdiction, Choice Of Law And Property, Daniel M. Klerman 2014 BLR

Jurisdiction, Choice Of Law And Property, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Jurisdiction and choice of law in property disputes has been remarkably stable. The situs rule, which requires adjudication where the property is located and application of that state’s law, remains the norm in most of the world. This article is the first to apply modern economic analysis to choice of law and jurisdiction in property disputes. It largely confirms the wisdom of the situs rule, but suggests some situations where other rules may be superior. For example, in disputes about stolen art, the state where the work was last undisputedly owned may be both the most efficient forum and ...


Rethinking Personal Jurisdiction, Daniel M. Klerman 2014 BLR

Rethinking Personal Jurisdiction, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

This article sets out a pragmatic justification for the main features of current personal jurisdiction doctrine. According to that justification, personal jurisdiction rules minimize litigation costs and bias. This approach to personal jurisdiction helps resolve difficult and open jurisdictional issues, such as the scope of general jurisdiction and the validity of jurisdiction based on the stream-of-commerce theory. This article then explores the empirical assumptions underlying this pragmatic explanation for current doctrine and shows how doctrine should change if those empirical assumptions were incorrect. For example, the Supreme Court’s “purposeful availment” requirement is justified only if the danger of bias ...


California Egg Toss - The High Costs Of Avoiding Unenforceable Surrgoacy Contracts, Jennifer Jackson 2014 SelectedWorks

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrgoacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and ...


The Supreme Court’S New Approach To Personal Jurisdiction, Bernadette Bollas Genetin 2014 The University of Akron School of Law

The Supreme Court’S New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Bernadette Bollas Genetin

This article provides a comprehensive analysis of the two personal jurisdiction opinions the United States Supreme Court issued in 2014. The article concludes that, these cases, Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Walden v. Fiore, 134 S. Ct. 1115 (2014), usher in a new doctrinal approach to personal jurisdiction.

In Daimler AG v. Bauman, the Supreme Court narrowed the scope of general jurisdiction, making it available primarily in a corporation’s states of incorporation and principal place of business and rejecting the prior approach of permitting general jurisdiction based on a defendant’s “continuous and systematic ...


Missing God In Some Things: The Nlrb’S Jurisdictional Test Fails To Grasp The Religious Nature Of Catholic Colleges And Universities, Nicholas Macri 2014 Boston College Law School

Missing God In Some Things: The Nlrb’S Jurisdictional Test Fails To Grasp The Religious Nature Of Catholic Colleges And Universities, Nicholas Macri

Boston College Law Review

The National Labor Relations Board (NLRB) uses a substantial religious character test to determine whether it is authorized to exercise jurisdiction over faculty labor relations at religiously affiliated colleges and universities. Under the NLRB’s test, a school is not considered religious unless it makes religious indoctrination one of its primary purposes, denies faculty members academic freedom, and discriminates based on religion when hiring faculty and admitting students. Such an approach fails to recognize the religious nature of Catholic institutions of higher learning, which carry out their religious missions precisely by avoiding religious indoctrination, granting faculty academic freedom, and welcoming ...


Don’T Dissolve The “Nerve Center”: A Status-Linked Citizenship Test For Principal Place Of Business, Caitlin Sawyer 2014 Boston College Law School

Don’T Dissolve The “Nerve Center”: A Status-Linked Citizenship Test For Principal Place Of Business, Caitlin Sawyer

Boston College Law Review

28 U.S.C. § 1332 requires complete diversity among parties to invoke a federal court’s jurisdiction. The statute provides that a corporation is a citizen of its incorporating state and its principal place of business. In the 2010 case Hertz Corp. v. Friend, the U.S. Supreme Court adopted the “nerve center” test as the exclusive test for determining a corporation’s principal place of business. Although the Court intended to adopt a simple standard, applying the rule to dissolved and inactive corporations remains complex. This Note argues for a status-linked nerve center test. This approach is consistent with ...


The Decker Forestry Pollution Case: Constitutional Risks When Courts Use Auer Deference To Bypass Regulatory Protections, Michael Tierney 2014 Boston College Law School

The Decker Forestry Pollution Case: Constitutional Risks When Courts Use Auer Deference To Bypass Regulatory Protections, Michael Tierney

Boston College Environmental Affairs Law Review

In Decker v. Northwest Environmental Defense Center, the Supreme Court upheld the EPA’s interpretation of the agency’s own regulation regarding exemption of channeled stormwater discharges from National Pollutant Discharge Elimination System permit requirements under the Clean Water Act. The Court deferred to the EPA’s interpretation under the Auer doctrine, which dictates that an administrative agency’s interpretation of its own regulation is entitled to deference unless the interpretation is plainly erroneous or inconsistent with the regulation. This Comment argues that Auer deference violates foundational separation of powers principles by allowing a governmental agency to both write and ...


Toxic Solid Waste Leaching From Telephone Poles? Navigating Ambiguous Definitions In Rcra, Cadesby B. Cooper 2014 Boston College Law School

Toxic Solid Waste Leaching From Telephone Poles? Navigating Ambiguous Definitions In Rcra, Cadesby B. Cooper

Boston College Environmental Affairs Law Review

This Comment analyzes the U.S. Court of Appeals for the Ninth Circuit’s ruling in Ecological Rights Foundation v. Pacific Gas & Electric Co. The plaintiff alleged that two utility companies operated utility poles that discharged wood preservative in violation of the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). The plaintiff’s RCRA claim depended on whether the wood preservative was a “solid waste” according to the Act. The Ninth Circuit dismissed the claims but acknowledged that RCRA has two definitions of solid waste, and the wood preservative was not a solid waste according to the ...


Plain Meaning Or Pragmatics? Differing Interpretations Of The Clean Water Act’S Jurisdictional Provisions, Natalia Cabrera 2014 Boston College Law School

Plain Meaning Or Pragmatics? Differing Interpretations Of The Clean Water Act’S Jurisdictional Provisions, Natalia Cabrera

Boston College Environmental Affairs Law Review

There is significant discord among circuit courts over whether a broad or narrow construction of the Clean Water Act’s jurisdictional provisions is appropriate in determining when circuit courts should have direct jurisdiction to review petitions challenging regulations. The broad interpretation of these provisions emphasizes the practicality of direct circuit court review of a wider range of regulations, whereas the narrow interpretation uses the plain language. In Friends of the Everglades v. U.S. Environmental Protection Agency, the U.S. Court of Appeals for the Eleventh Circuit addressed this issue as applied to petitions for review of the “water transfer ...


The "Legal" Marijuana Industry's Challenge For Business Entity Law, Luke M. Scheuer 2014 Widener Law

The "Legal" Marijuana Industry's Challenge For Business Entity Law, Luke M. Scheuer

Luke M Scheuer

In recent years many states have legalized the use and sale of marijuana for medical or even recreational purposes. This has led to the booming growth of a “legal” marijuana industry. Businesses openly growing and selling marijuana products to the consuming public are faced with some unusual legal hurdles. Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law. This article explores the conflict between state and federal marijuana laws from a business entity law perspective. For example, managers owe a fiduciary duty of good faith to their businesses and ...


The "State" Of Federal Bankruptcy Law: The Ninth Circuit's Debt Recharacterization Analysis In In Re Fitness Holdings International, Bryan C. Curran 2014 Boston College Law School

The "State" Of Federal Bankruptcy Law: The Ninth Circuit's Debt Recharacterization Analysis In In Re Fitness Holdings International, Bryan C. Curran

Boston College Law Review

On April 30, 2013, the U.S. Court of Appeals for the Ninth Circuit in In re Fitness Holdings International, Inc. held that bankruptcy courts have the authority to recharacterize debt as equity when the obligation does not constitute a “right to payment” under state law. In so holding, the court adhered to a state law approach and declined to adopt a federal rule for debt recharacterization, thus creating a split amongst the federal appeals courts. This Comment argues that the Ninth Circuit’s state law approach is more desirable than promulgating a federal debt recharacterization rule because state law ...


Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen 2014 Notre Dame Law School

Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen

Notre Dame Law Review

This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence.

2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its ...


The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain 2014 Notre Dame Law School

The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain

Notre Dame Law Review

The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.” John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of ...


The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson 2014 SelectedWorks

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.”

Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device . . . . In no ...


How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs 2014 Duke Law

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties ...


The Effectiveness Of International Adjudicators, Laurence R. Helfer 2014 Duke Law

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an analytical overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third ...


Criminal Justice In Indian Country, M. Alexander Pearl 2014 Florida International University College of Law

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states ...


Selling State Borders, Joseph Blocher 2014 Duke Law

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.


Remedial Discretion In Constitutional Adjudication, John M. Greabe 2014 SelectedWorks

Remedial Discretion In Constitutional Adjudication, John M. Greabe

John M Greabe

Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.

The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing ...


The Jurisprudence Of Union, Gil Seinfeld 2014 University of Michigan Law School

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by ...


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