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Domicile Dismantled, Kerry Abrams, Kathryn Barber 2017 University of Virginia

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Indiana Law Journal

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a ...


Boundary Dispute: The Presumption Against Extraterritoriality As Judicial Nondelegation, Luke Bell 2017 Brigham Young University Law School

Boundary Dispute: The Presumption Against Extraterritoriality As Judicial Nondelegation, Luke Bell

BYU Law Review

No abstract provided.


Preclusion And Criminal Judgment, Lee Kovarsky 2017 University of Maryland School of Law

Preclusion And Criminal Judgment, Lee Kovarsky

Notre Dame Law Review

The defining question in modern habeas corpus law involves the finality

of a state conviction: What preclusive effect does (and should) a criminal

judgment have? Res judicata and collateral estoppel —the famous preclusion

rules for civil judgments—accommodate basic legal interests in fairness,

certitude, and sovereignty. Legal institutions carefully calibrate the preclusive

effect of civil judgments because judicial resources are scarce, because

the reliability and legitimacy of prior process can vary, and because courts

wield the authority of a repeat-playing sovereign that will find its own civil

judgments attacked in foreign litigation. In stark contrast to the legal sophistication

lavished ...


The Unsung Virtues Of Global Forum Shopping, Pamela K. Bookman 2017 Temple University Beasley School of Law

The Unsung Virtues Of Global Forum Shopping, Pamela K. Bookman

Notre Dame Law Review

Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform.

This Article challenges common perceptions about global forum shopping that have ...


The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule 2017 Trinity College, Oxford

The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule

Notre Dame Law Review

This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually ...


The Jurisdiction Canon, Aaron-Andrew P. Bruhl 2017 William & Mary Law School

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s ...


The Cure Is Worse: First Circuit Circumvents False Claims Act's First-To-File Rule In United States Ex Rel. Gadbois V. Pharmerica Corp., Daniel Sorger 2017 Boston College Law School

The Cure Is Worse: First Circuit Circumvents False Claims Act's First-To-File Rule In United States Ex Rel. Gadbois V. Pharmerica Corp., Daniel Sorger

Boston College Law Review

In 2015, in United States ex rel. Gadbois v. PharMerica Corp., the U.S. Court of Appeals for the First Circuit held that a qui tam relator could use supplementation to cure a jurisdictional first-to-file defect in a False Claims Act (“FCA”) action. In contrast, in 2010, the U.S. Court of Appeals for the Seventh Circuit in United States ex rel. Chovanec v. Apria Healthcare Group, Inc. held that relators barred by first-to-file must face dismissal without prejudice and then refile if they are to proceed. Separately, in 2015, the U.S. Court of Appeals for the D.C ...


Conference Of Soviet And American Jurists On The Law Of The Sea And The Protection Of The Marine Environment, Milton Katz, Richard R. Baxter, O. V. Bogdanov, William E. Butler, Thomas M. Franck, Richard Frank, P. P. Gureev, John L. Hargrove, L. A. Ivanaschenko, Y. Kasmin, V. A. Kiselev, B. M. Klimenko, H. G. Knight, O. S. Kolbasov, A. L. Kolodkin, V. M. Koretsky, F. N. Kovalev, V. N. Kudrjavtsev, B. A. Kuvshinnikov, M. I. Lazarev, A. L. Makovsky, Charles W. Maynes, P. A. Moiseev, John N. Moore, A. P. Movchan, T. M. Starzhina, Robert E. Stein, Grigory I. Tunkin, E. T. Usenko, A. F. Vysotsky, A. K. Zhudro 2017 Harvard University

Conference Of Soviet And American Jurists On The Law Of The Sea And The Protection Of The Marine Environment, Milton Katz, Richard R. Baxter, O. V. Bogdanov, William E. Butler, Thomas M. Franck, Richard Frank, P. P. Gureev, John L. Hargrove, L. A. Ivanaschenko, Y. Kasmin, V. A. Kiselev, B. M. Klimenko, H. G. Knight, O. S. Kolbasov, A. L. Kolodkin, V. M. Koretsky, F. N. Kovalev, V. N. Kudrjavtsev, B. A. Kuvshinnikov, M. I. Lazarev, A. L. Makovsky, Charles W. Maynes, P. A. Moiseev, John N. Moore, A. P. Movchan, T. M. Starzhina, Robert E. Stein, Grigory I. Tunkin, E. T. Usenko, A. F. Vysotsky, A. K. Zhudro

Georgia Journal of International & Comparative Law

Included in the papers for the Conference of Soviet and American Jurists on the Law of the Sea and the Protection of the Marine Environment:

Introduction by Milton Katz and Richard R. Baxter, p. 1

Freedom of Scientific Research in the World Ocean by A.F. Vysotsky, p. 7

The International Law of Scientific Research in the Oceans by Richard R. Baxter, p. 27

Responsibility and Liability for Harm to the Marine Environment by Robert E. Stein, p. 41

Liability for Marine Environment Pollution Damage in Contemporary International Sea Law by A. L. Makovsky, p. 59

Protection of the Marine ...


Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff 2017 University of Pennsylvania Law School

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

Faculty Scholarship

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie Railroad v. Tompkins requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon ...


Mind The Gap: Issues With And Solutions To Oklahoma’S Appellate Jurisdiction As Exposed By Lockett V. Evans, Jonathan Bryant 2017 University of Oklahoma College of Law

Mind The Gap: Issues With And Solutions To Oklahoma’S Appellate Jurisdiction As Exposed By Lockett V. Evans, Jonathan Bryant

Oklahoma Law Review

No abstract provided.


Closing Time: Removing The State Of Oklahoma From Alcohol Regulation In Indian Country, Ryan Wilson 2017 University of Oklahoma College of Law

Closing Time: Removing The State Of Oklahoma From Alcohol Regulation In Indian Country, Ryan Wilson

Oklahoma Law Review

No abstract provided.


The Jurisdictional Boundary Between The Oklahoma Supreme Court And The Court Of Criminal Appeals: Blurred Lines, Greg Eddington 2017 University of Oklahoma College of Law

The Jurisdictional Boundary Between The Oklahoma Supreme Court And The Court Of Criminal Appeals: Blurred Lines, Greg Eddington

Oklahoma Law Review

No abstract provided.


Justice For All: Certifying Global Class Actions, Ángel R. Oquendo 2017 University of Connecticut School of Law

Justice For All: Certifying Global Class Actions, Ángel R. Oquendo

Washington University Global Studies Law Review

A federal court should approach the presence of foreigners in a global class action for monetary relief with an open mind. It should keep them in so long as it can conclude, upon a reflective comparative law analysis, that the judiciary in their nation of origin would uphold the ultimate ruling. For example, Latin American absent class members should normally stay on board inasmuch as virtually every jurisdiction in their region would allow a U.S. adjudicator to arrive at this conclusion. Accordingly, they would fail, on grounds of res judicata, if they ever tried to re-litigate the matter back ...


The Business Of Personal Jurisdiction, Cassandra Burke Robertson, Charles W. (Rocky) Rhodes 2017 Case Western University School of Law

The Business Of Personal Jurisdiction, Cassandra Burke Robertson, Charles W. (Rocky) Rhodes

Faculty Publications

This contribution to a symposium on business and the Roberts Court examines the recent significant reshaping of the contours of personal jurisdiction. Although the changes limit the scope of jurisdiction in ways that may favor defendants overall, the Court does not appear directly motivated by a desire to favor business—and, in fact, the Court erected significant obstacles to business interests in some contexts. Instead, the results in the cases may be better explained by the Court’s commitment to a formalist approach with respect for territorial boundaries and by a skepticism of transnational litigation not clearly related to a ...


Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks 2017 University of Colorado Law School

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Articles

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to ...


Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel 2017 Duke Law School

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and ...


The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Blom Joost 2017 Allard School of Law at the University of British Columbia

The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Blom Joost

Faculty Publications

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must ...


Sub-Regional Courts In Africa: Litigating The Hybrid Right To Freedom Of Movement, Laurence R. Helfer 2017 Duke Law School

Sub-Regional Courts In Africa: Litigating The Hybrid Right To Freedom Of Movement, Laurence R. Helfer

Faculty Scholarship

Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on sub-regional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice (EACJ), the Court of Justice of the Economic Community of West African States (ECOWAS), and the Tribunal of the Southern African Development Community (SADC) have received few suits challenging trade restrictions and other barriers to sub-regional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law.
This article offers the first analysis of EACJ, ECOWAS Court and ...


Pennoyer Was Right, Stephen E. Sachs 2017 Duke Law School

Pennoyer Was Right, Stephen E. Sachs

Faculty Scholarship

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law -- that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if ...


Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs 2017 Duke Law School

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third ...


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