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Articles 1 - 25 of 25
Full-Text Articles in Law
Taking Distribution Seriously, Robert C. Hockett
Taking Distribution Seriously, Robert C. Hockett
Robert C. Hockett
It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …
A Global Law Of Jurisdiction And Judgments: Views From The United States And Japan, Kevin M. Clermont
A Global Law Of Jurisdiction And Judgments: Views From The United States And Japan, Kevin M. Clermont
Kevin M. Clermont
Japanese and U.S. legal systems, despite surprisingly similar doctrine and outlook on matters of jurisdiction and judgments, often clash: jurisdictions overlap and judgments may go unrespected, while parallel proceedings persist. The current outlook for harmonization through a multilateral Hague convention of general scope is bleak. These two countries are, however, ideally situated to reach a highly feasible bilateral agreement that would provide a better tomorrow in which jurisdiction was allocated appropriately and judgments were respected accordingly.
Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg
Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
General Observations on Interpreting Win-Rate Data Properly. Many empirical legal studies use data on plaintiffs' rate of success, because of those data's ready availability and apparent import. Yet these "win rates" are probably the slipperiest of all judicial data. Win rates are inherently ambiguous because of the case-selection effect. The litigants' selection of the cases brought produces a biased sample from the mass of underlying disputes. The settlement process, usually conducted by rational and knowledgeable persons who take into account and thereby neutralize the very factor that one would like to study, produces a residue of litigated cases for which …
Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg
Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this. Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …
French Article 14 Jurisdiction, Viewed From The United States, Kevin M. Clermont, John R.B. Palmer
French Article 14 Jurisdiction, Viewed From The United States, Kevin M. Clermont, John R.B. Palmer
Kevin M. Clermont
French courts have broadly read their Civil Code’s oddly written Article 14 as authorizing territorial jurisdiction over virtually any action brought by a plaintiff of French nationality. This study traces the history of this provision from its genesis two hundred years ago to its extension under the current Brussels Regulation. Nevertheless, for a number of reasons, French plaintiffs do not use Article 14 all that much, other than in status suits such as matrimonial matters or in situations where the defendant has assets in France (or now, under the Brussels regime, in Europe). The actual use of Article 14 ends …
Jurisdictional Salvation And The Hague Treaty, Kevin M. Clermont
Jurisdictional Salvation And The Hague Treaty, Kevin M. Clermont
Kevin M. Clermont
The United States' law of territorial jurisdiction in civil cases is a mess. Many commentators, here and abroad, have said so for a long time. The United States' treatment of foreign judgments, however, stands in contrast. As a well-behaved member of the international community of nations, the United States eagerly gives appropriate respect to foreign judgments, despite sometimes getting no respect in return.
Now, ongoing negotiations at the Hague have generated a prospect for an international agreement on the reciprocal treatment of foreign judgments. The envisaged treaty would ensure mutual respect of judgments among contracting countries, but it would also …
Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg
Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg
Kevin M. Clermont
Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case. The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative …
The Repressible Myth Of Shady Grove, Kevin M. Clermont
The Repressible Myth Of Shady Grove, Kevin M. Clermont
Kevin M. Clermont
This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule's coverage, …
Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg
Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …
The Role Of Private International Law In The United States: Beating The Not-Quite-Dead Horse Of Jurisdiction, Kevin Clermont
The Role Of Private International Law In The United States: Beating The Not-Quite-Dead Horse Of Jurisdiction, Kevin Clermont
Kevin M. Clermont
Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. …
Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer
Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer
Kevin M. Clermont
Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …
Restating Territorial Jurisdiction And Venue For State And Federal Courts, Kevin M. Clermont
Restating Territorial Jurisdiction And Venue For State And Federal Courts, Kevin M. Clermont
Kevin M. Clermont
"Jurisdiction must become venue," concluded Professor Albert A. Ehrenzweig. Perhaps it should. More certain is the proposition that comprehending jurisdiction requires mastering its relationship with venue. Such conclusions lie at some distance, however, bringing to mind that every journey must begin with a single step. A solid first step takes me to the subject of this Symposium, the Restatement (Second) of Judgments. This, put simply, is a masterful work. Even while still in tentative drafts, it proved an invaluable aid to judge, practitioner, teacher, and student. Yet in a work of such scope, anyone could find grounds for differing. At …
Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii
Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii
John J. Barceló III
No abstract provided.
Claims Under The Administrative Procedure Act Before The Court Of International Trade — A General Overview And Analysis Of Significant Recent Jurisprudence, Mark A. Moran, Wentong Zheng
Claims Under The Administrative Procedure Act Before The Court Of International Trade — A General Overview And Analysis Of Significant Recent Jurisprudence, Mark A. Moran, Wentong Zheng
Wentong Zheng
At first blush, the subject matter of this paper would seem a particularly anomalous topic for discussion at a conference devoted to the jurisprudence of the U.S. Court of International Trade (“CIT”). After all, among the some four thousand published decisions the CIT has issued since its creation in 1980, relatively few have involved causes of action predicated explicitly on the Administrative Procedure Act (“APA”). One might reasonably ask why we should bother devoting an entire panel discussion to an issue that so infrequently commands the CIT’s attention. The first answer is that all is not as it seems, and …
Making A Case For Business Courts: A Survey Of And Proposed Framework To Evaluate Business Courts, Anne Tucker
Making A Case For Business Courts: A Survey Of And Proposed Framework To Evaluate Business Courts, Anne Tucker
Anne Tucker
This article addresses the issues related to specialized courts, specifically focusing on business courts, and provides a comprehensive overview of the evolution of non-Delaware business courts. After addressing the theoretical assumptions of and civil justice goals served by business courts, the article proposes a framework to evaluate and measure the success of business courts by focusing on efficiency, quality of decision-making, and the perception of due process. The article surveys existing business courts and undertakes a comparative analysis of their structural elements: case subject matter, jurisdiction, minimum damages thresholds, and transfer procedures. The article then analyzes the existing programs under …
Justice And The Outsider: Jurisdiction Over Non-Members In Tribal Legal Systems, Bethany Berger
Justice And The Outsider: Jurisdiction Over Non-Members In Tribal Legal Systems, Bethany Berger
Bethany Berger
A quarter of a century ago, the Supreme Court issued its opinion in Oliphant v. Suquamish Indian Tribe holding that tribes had no criminal jurisdiction over non-Indians. Since that time, the Court has progressively limited tribal criminal, civil, and regulatory jurisdiction over those that are not enrolled members of the tribe. While the decisions have a veneer of history and precedent, their legal basis is extremely thin—so much so that Justice O’Connor called a 2001 decision “unmoored from our precedents.” This trend is one of the most important developments in Indian law. It is the focus of sustained attention by …
Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart
Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart
Rebecca K Stewart
Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.
Yet in recent years, the seed wars have begun to …
A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling
A Case For The Recognition Of A Concept Of Judge-Made International Law, Theodor Jr Schilling
Theodor JR Schilling
Judge-made international law (JMIL) based on a law of reason exists as well in some municipal court decisions setting a precedent as in ones building upon such a precedent. Such court decisions rely on the faculty of judicial borderline institutions to decide against normally binding customary international law (CIL). This implies for the first group that they may positivise a law of reason, and for the second group they may defer to thus positivised laws of reason, both irrespective of contrary CIL. Norms of JMIL and of CIL are determined according to different secondary rules. Therefore, court decisions which are …
Jurisdiction, Power, Inherent Jurisdiction, And Inherent Power, Siyuan Chen
Jurisdiction, Power, Inherent Jurisdiction, And Inherent Power, Siyuan Chen
Siyuan CHEN
No abstract provided.
Is The Invocation Of Inherent Jurisdiction The Same As The Exercise Of Inherent Powers? Re Nalpon Zero Geraldo Mario [Case Note], Siyuan Chen
Siyuan CHEN
In Re McC (A Minor), Lord Bridge of Harwich remarked that few words have been ‘used with so many different shades of meaning in different contexts’ and ‘have so freely acquired new meanings’ as the word ‘jurisdiction’. The definitional conundrum deepens when ‘jurisdiction’ is combined with the adjective ‘inherent,’ yet common law courts around the world routinely claim to invoke inherent jurisdiction for a wide array of purposes in civil and criminal matters, ranging from the reception of evidence to the ensuring of a fair trial, and this necessarily raises questions about the limits of such an exercise.
Universal Criminal Jurisdiction, Douglass Cassel
Universal Criminal Jurisdiction, Douglass Cassel
Douglass Cassel
No abstract provided.
Securities Exchange Act—Treatment Of Intrastate Use Of Telephone.—Rosen V. Albern Color Research, Inc.—And Nemitz V. Cunny, John Dobbyn
John Dobbyn
No abstract provided.
California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson
California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy 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 …
California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson
California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy 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 …
Kids Can Change: Reforming South Dakota’S Juvenile Transfer Law To Rehabilitate Children And Protect Public Safety, Wendy Hess
Wendy Hess
South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. The mechanism which allows prosecution of a child as an adult is referred to as “juvenile transfer,” because the juvenile court’s jurisdiction over the child is transferred to the adult criminal court. The article discusses how the juvenile transfer mechanism developed — both generally and in South Dakota — as well as how it operates today. The author summarizes research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn …