Open Access. Powered by Scholars. Published by Universities.®

Jurisdiction Commons

Open Access. Powered by Scholars. Published by Universities.®

1,920 Full-Text Articles 1,504 Authors 641,970 Downloads 91 Institutions

All Articles in Jurisdiction

Faceted Search

1,920 full-text articles. Page 1 of 32.

A Case Study On Court Of Appeals Finality, Michael J. Nolan, Michael J. Nolan 2016 New York Court System

A Case Study On Court Of Appeals Finality, Michael J. Nolan, Michael J. Nolan

Michael J. Nolan

The article illustrates the New York Court of Appeals jurisdictional requirement of finality by tracing the history of a case in which leave to appeal was sought, and dismissed, 5 separate times.


Extraterritorial Criminal Jurisdiction, Michael Farbiarz 2016 New York University Law School

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches ...


Walden V. Fiore And The Federal Courts: Rethinking Frcp 4(K)(1)(A) And Stafford V. Briggs, Daniel M. Klerman 2016 USC Law School

Walden V. Fiore And The Federal Courts: Rethinking Frcp 4(K)(1)(A) And Stafford V. Briggs, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

If it were not so common, the reasoning in Walden v. Fiore would seem bizarre: the jurisdiction of a federal court over a federal claim against a federal agent depends on how much power the constitution allows the state of Nevada. This strange result is, of course, the result of FRCP 4(k)(1)(A), which, in most cases, makes the jurisdiction of a federal district court co-extensive with the jurisdiction of a state court of general jurisdiction in the same district. Less obviously, the outcome in Walden v. Fiore reflects Stafford v. Briggs, which, contrary to the plain language ...


Jurisdiction, Choice Of Law And Property, Daniel M. Klerman 2016 USC Law School

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 2016 USC Law School

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 ...


Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo 2016 University of California Hastings College of Law

Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo

Scott Dodson

Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants—one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is ...


Extraterritorial Application Of The Alien Tort Statute After Kiobel, Ranon Altman 2016 University of Miami Law School

Extraterritorial Application Of The Alien Tort Statute After Kiobel, Ranon Altman

University of Miami Business Law Review

This article explores when corporations can be held liable under the Alien Tort Statute for human rights abuses that are committed outside of the United States. The Alien Tort Statute grants the United States district courts jurisdiction for torts committed against foreigners in violation of the law of nations. While the Alien Tort Statute concerns international law, it does not indicate whether the district courts have jurisdiction over disputes that involve conduct outside of the United States.

In this article, I focus my analysis on the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. That case ...


Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer 2016 Duke Law School

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member ...


James Madison's 'Notes': Revising The Constitutional Convention, Mary S Bilder 2015

James Madison's 'Notes': Revising The Constitutional Convention, Mary S Bilder

Mary Sarah Bilder

Interview with the National Constitution Center's Michael J. Gerhardt about the book Madison's Hand: Revising the Constitutional Convention.


Fear And Loathing In Colorado: Invoking The Supreme Court’S State-Controversy Jurisdiction To Challenge The Marijuana-Legalization Experiment, Chad DeVeaux, Anne Mostad-Jensen 2015 Concordia University School of Law

Fear And Loathing In Colorado: Invoking The Supreme Court’S State-Controversy Jurisdiction To Challenge The Marijuana-Legalization Experiment, Chad Deveaux, Anne Mostad-Jensen

Boston College Law Review

This Article asserts that states may invoke the Supreme Court’s original jurisdiction to challenge marijuana legalization in Colorado. The State’s introduction of marijuana into interstate commerce has reawakened a long-dormant body of constitutional law dealing with transboundary nuisance disputes between states. In making this argument, we distinguish our theory from the complaint lodged by Nebraska and Oklahoma with the Supreme Court. Nebraska and Oklahoma seek to enforce the Supremacy Clause of the U.S. Constitution, contending that Colorado’s venture violates the federal Controlled Substances Act. In contrast, we assert that the Court should award damages to a ...


When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson 2015 University of Michigan Law School

When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson

University of Michigan Journal of Law Reform

This Note argues that courts should interpret 28 U.S.C. § 1441, which permits removal from state court to federal court, to allow removal from state administrative agencies when the agency performs “court-like functions.” Circuits that apply a literal interpretation of the statute and forbid removal from state agencies should adopt this “functional” approach. The functional approach, which this Note calls the McCullion-Floeter test, should be modified to comport with legislative intent and public policy considerations: first, state agency adjudications should not be removable when the adjudication requires technical expertise, which federal courts cannot obtain because they adjudicate cases in ...


The Lost History Of The Political Question Doctrine, Tara Leigh Grove 2015 William & Mary Law School

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the ...


Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore 2015 University of Montana - Missoula

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land and Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.


Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen 2015 College of William & Mary Law School

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

William & Mary Law Review

Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.


Home Is Where The Heart Is: Determining The Standard For Habitual Residence Under The Hague Convention Based On A Child-Centric Approach, Aimee Weiner 2015 Seton Hall University

Home Is Where The Heart Is: Determining The Standard For Habitual Residence Under The Hague Convention Based On A Child-Centric Approach, Aimee Weiner

Seton Hall Circuit Review

No abstract provided.


Rights Without Remedies, Adam Lamparello 2015 Indiana Tech Law School

Rights Without Remedies, Adam Lamparello

Adam Lamparello

The Court should modify the standing doctrine in some contexts for the same reason that, in Shelby County, it invalidated two provisions of the Voting Rights Act: the legislature cannot and will not fix the problem. No legal doctrine should be applied without examining whether elected representatives are capable of remedying specific harms and accounting for the relative unfairness in democratic governance. When the traditional standing requirements are rigidly applied without considering these factors, the Court undermines the separation of powers and prevents sound judicial decision-making. In essence, rigid application of the standing doctrine sends a message to litigants that ...


The Impasse Of Tibetan Justice: Spain's Exercise Of Universal Jurisdiction In Prosecuting Chinese Genocide, Craig Peters 2015 Seattle University School of Law

The Impasse Of Tibetan Justice: Spain's Exercise Of Universal Jurisdiction In Prosecuting Chinese Genocide, Craig Peters

Seattle University Law Review

Universal jurisdiction is the progressive and contentious legal principle that courts have competence to adjudicate cases involving alleged violations of international law regardless of the nation in which those crimes occurred, the nationality of the victim, or the nationality of the perpetrator. While the limits of more conventional theories of jurisdiction are defined by sovereignty, territory, and nationality, the exercise of universal jurisdiction is based solely on the nature of the crime alleged. That is, when a crime is so serious that it violates peremptory norms of international law, courts are entitled, or even obliged, to hear those cases regardless ...


Blood And Privacy: Towards A "Testing-As-Search" Paradigm Under The Fourth Amendment, Andrei Nedelcu 2015 Seattle University School of Law

Blood And Privacy: Towards A "Testing-As-Search" Paradigm Under The Fourth Amendment, Andrei Nedelcu

Seattle University Law Review

A vehicle on a public thoroughfare is observed driving erratically and careening across the roadway. After the vehicle strikes another passenger car and comes to a stop, the responding officer notices in the driver the telltale symptoms of intoxication—bloodshot eyes, slurred speech, and a distinct odor of intoxicants. On these facts, a lawfully-procured warrant authorizing the extraction of the driver’s blood is obtained. However, the document fails to circumscribe the manner and variety of testing that may be performed on the sample. Does this lack of particularity render the warrant constitutionally infirm as a mandate for chemical analysis ...


A Primer On Key International Law Issues For The Regionally Aligned Legal Advisor, Matthew J. Festa, Patrick Walsh 2015

A Primer On Key International Law Issues For The Regionally Aligned Legal Advisor, Matthew J. Festa, Patrick Walsh

Matthew J. Festa

The concept of Regionally Aligned Forces (RAF) represents a transition in the U.S. government and military strategic vision for how it employs its operational and tactical forces. The implementation of RAF will give rise to unique, region-specific legal issues. Many of these issues are unique to international and operational law. Legal advisors and judge advocates at all levels, and in all types of assignments, will need to be aware of the legal questions that the RAF focus presents. This article is a road map to assist you in preparing for those key international law issues that you will face ...


Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton 2015 Cornell Law School

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Indiana Law Journal

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either ...


Digital Commons powered by bepress