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Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme 2018 Duke University School of Law

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to ...


Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry 2018 Selected Works

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Suzanna Sherry

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of ...


Book Review: Prosecuting Corporations For Genocide, Sarah Federman 2018 University of Baltimore

Book Review: Prosecuting Corporations For Genocide, Sarah Federman

Genocide Studies and Prevention: An International Journal

No abstract provided.


Jurisdiction In The Trump Era, Scott Dodson 2018 UC Hastings College of Law

Jurisdiction In The Trump Era, Scott Dodson

Fordham Law Review

The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s ...


The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson 2018 Brooklyn Law School

The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson

Brooklyn Law Review

We have entered a new age of international white-collar crime and are seeing the growing interdependency of the Department of Justice (DOJ) and parallel foreign agencies to conduct investigations and subsequent prosecutorial proceedings. This coordination to combat these crimes, however, has revealed a troubling question—how can enforcement agencies work effectively together if they have fundamental differences in the legal authority governing testimony-gathering and what evidence is allowed before a grand jury? The Court of Appeals for the Second Circuit, in United States v. Allen, confronted this issue directly as it overturned two indictments arising out of suspected manipulation of ...


Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen 2018 Alexander Blewett III School of Law at the University of Montana

Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen

Public Land & Resources Law Review

Stemming from a property dispute between a private landowner and the Upper Skagit Indian Tribe, this action evolved into a debate concerning the scope of tribal sovereign immunity and whether Indian tribes should be bound by certain common law doctrines applicable to most other sovereigns. The Washington Supreme Court originally ruled against the Tribe, citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation in holding that sovereign immunity does not apply to in rem actions. The United States Supreme Court granted certiorari to clarify that its ruling in Yakima did not support such a proposition. The case ...


Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman 2018 ETH Zurich (Swiss Federal Institute of Technology)

Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum sell-ing.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff ...


The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron 2018 Pryor Cashman LLP, partner

The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron

Pepperdine Law Review

The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable ...


Weed Wars: Winning The Fight Against Marijuana Spillover From Neighboring States, Jessica Berch 2018 University of Nevada, Las Vegas -- William S. Boyd School of Law

Weed Wars: Winning The Fight Against Marijuana Spillover From Neighboring States, Jessica Berch

Nevada Law Journal

No abstract provided.


Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby 2018 The George Washington University Law School

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply ...


Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon 2018 St. Mary's University School of Law

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo 2018 St. Mary's University School of Law

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Personal Jurisdiction Over Orb-Web Corporations: A Re-Routed Approach For "Change In The Navigation Of Time", Vidhya Iyer 2018 University of Maryland Francis King Carey School of Law

Personal Jurisdiction Over Orb-Web Corporations: A Re-Routed Approach For "Change In The Navigation Of Time", Vidhya Iyer

The Global Business Law Review

The law of personal jurisdiction lies at the heart of all litigation. Our courts must recognize the rights of individuals as well as the rights of corporations. The motto placed at the entrance of the United States Supreme Court—"Equal Justice Under Law"—ensures the promise of equal justice under the law to all persons. It expresses the ultimate responsibility of the Supreme Court of the United States (the "Court") as the highest tribunal for all cases and controversies arising under the Constitution, laws, and treaties of the United States and functions as a guardian and interpreter of the Constitution ...


The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell 2018 Mississippi College School of Law

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently ...


What Does The Fox Say: Domestic Violence, Personal Jurisdiction, And The State's Sovereignty In Declaring The Protected Status Of Its Citizens, Aaron Edward Brown 2018 University of St. Thomas, Minnesota

What Does The Fox Say: Domestic Violence, Personal Jurisdiction, And The State's Sovereignty In Declaring The Protected Status Of Its Citizens, Aaron Edward Brown

University of St. Thomas Law Journal

No abstract provided.


Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski 2018 Brooklyn Law School

Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski

Brooklyn Journal of International Law

As the world has transitioned from national; isolated economies with localized issues into a globalized and interconnected economy with cross-border disputes; the law has struggled to keep up. Recent trade negotiations have highlighted the difficulty states face in promoting trade; while also creating a fair; accessible; and equitable forum for producers and consumers with nationalities touching every area of the globe. For several decades; Investor-State Dispute Settlement (ISDS) has been in place to address claims brought by foreign investors against the host states. External improvements have helped support foreign direct investment and the ISDS model of dispute resolution; such as ...


Striving For Consistency: The Battle Of Jurisdiction In Enforcing Arbitration Awards, Leah Hengemuhle 2018 Boston College Law School

Striving For Consistency: The Battle Of Jurisdiction In Enforcing Arbitration Awards, Leah Hengemuhle

Boston College Law Review

On January 20, 2017, in Ortiz-Espinosa v. BBVA Securities of Puerto Rico, the U.S. Court of Appeals for the First Circuit expanded the U.S. Supreme Court’s decision in Vaden v. Discovery Bank and held that the “look through” approach to determine federal jurisdiction applied to petitions to enforce, modify, and vacate arbitration awards under the Federal Arbitration Act. The First Circuit relied heavily on the Supreme Court’s reasoning in Vaden to support its conclusion that applying the “look through” test created a single and consistent jurisdictional approach. This Comment argues that the First Circuit was correct ...


Extraterritoriality And The Alien Tort Statute— Narrow Application Preserves Crucial Boundaries, Alicia Pitts 2018 Southern Methodist University

Extraterritoriality And The Alien Tort Statute— Narrow Application Preserves Crucial Boundaries, Alicia Pitts

SMU Law Review

No abstract provided.


The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska 2018 College of William & Mary Law School

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect ...


Policy Considerations And Implications In United States V. Bryant, Jessica Larsen 2018 Northwestern Pritzker School of Law

Policy Considerations And Implications In United States V. Bryant, Jessica Larsen

Northwestern Journal of Law & Social Policy

No abstract provided.


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