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Articles 1 - 16 of 16
Full-Text Articles in Law
Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll
Bounded Extraterritoriality, Ruth Mason, Michael S. Knoll
Michigan Law Review
Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is …
Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron
Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron
Michigan Law Review Online
Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed-if not unfairly driven-the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien's ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the …
Extraterritorial Criminal Jurisdiction, Michael Farbiarz
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’ traditional …
Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner
Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner
Michigan Journal of International Law
On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack of …
A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow
A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow
Articles
Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.
Keeping The Door Ajar For Foreign Plaintiffs In Global Cartel Cases After Empagran, Jeremy M. Suhr
Keeping The Door Ajar For Foreign Plaintiffs In Global Cartel Cases After Empagran, Jeremy M. Suhr
Michigan Law Review
In many ways, the Supreme Court's opinion of F. Hoffmann-LaRoche Ltd. V. Empagran S.A. raised more questions than it answered. Growing out of the massive international vitamins cartel uncovered in the 1990s, Empagran presented a scenario in which all parties were foreign and all conduct occurred abroad. Although it is "well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States," Empagran presented the Court with the first truly foreign antitrust case. It involved not only foreign conduct, but also foreign plaintiffs …
The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow
The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow
Articles
A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …
Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow
Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow
Articles
The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider "American" companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for "best practices" bankruptcy codes. Scholars vary …
Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow
Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow
Articles
The headline-grabbing business failures of late have brought increased attention to the relatively unresolved area of multinational bankruptcies. Parmalat, Global Crossing, and United Airlines are among the few international juggernauts that have foundered. In the financial meltdowns of these cross-border institutions, assets and creditors are dispersed throughout commercial environments that rarely end neatly at national borders. There has been heated debate, both in scholarly literature and the practical battlefield, over how best to resolve these transnational insolvencies, and there is nothing yet approaching a consensus. Reform efforts of various stripes have almost uniformly failed to gain meaningful international support. At …
International Tax Law As International Law, Reuven S. Avi-Yonah
International Tax Law As International Law, Reuven S. Avi-Yonah
Articles
Is international tax law part of international law? To an international lawyer, the question posed probably seems ridiculous. Of course international tax law is part of international law, just like tax treaties are treaties. But to an international tax lawyer, the question probably seems less obvious, because most international tax lawyers do not think of themselves primarily as international lawyers (public or private), but rather as tax lawyers who happen to deal with crossborder transactions. And indeed, once one delves into the details, it becomes clear that in some ways international tax law is different from "regular" international law. For …
Extraterritorial Application Of Rico: Protecting U.S. Markets In A Global Economy, Kristen Neller
Extraterritorial Application Of Rico: Protecting U.S. Markets In A Global Economy, Kristen Neller
Michigan Journal of International Law
The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted by Congress in 1970 to combat organized crime in America. Since its enactment, it has been used extensively in both the civil and criminal arenas. With the participation of foreign corporations, foreign subsidiaries, and foreign actors in general in the U.S. economy, it is only a matter of time before foreign defendants will be sued under RICO. This Note will discuss whether RICO should be applied extraterritorially: that is, whether federal courts should assume jurisdiction over foreign entities as defendants in RICO claims. First, RICO's language, legislative history and application …
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Articles
What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …
The Contours Of Extraterritorial Jurisdiction In Drug Smuggling Cases, Stephen E. Chelberg
The Contours Of Extraterritorial Jurisdiction In Drug Smuggling Cases, Stephen E. Chelberg
Michigan Journal of International Law
This note examines the contours of U.S. jurisdiction over drug smugglers on the high seas. After a brief discussion of the two principal U.S. drug statutes, the note considers the territorial and protective principles of jurisdiction as defined by U.S. courts. Controversy currently centers around whether U.S. drug laws apply to foreign ships, carrying controlled substances on the high seas, where there has been no showing of an intent to import the drugs into the United States.
Jurisdictional Bases For Criminal Legislation And Its Enforcement, B.J. George Jr.
Jurisdictional Bases For Criminal Legislation And Its Enforcement, B.J. George Jr.
Michigan Journal of International Law
The doctrine of jurisdiction-the authority of nations or states to create or prescribe penal or regulatory norms and to enforce them through administrative and judicial action- has been a source of difficulty in both international and domestic law for centuries. The last two decades, however, have witnessed more conflicts over the invocation of forum penal laws to reach persons and activities outside national boundaries than had arisen for more than a century before. Moreover, treaties restricting some dimensions of penal jurisdiction based on other than the territorial concept have become increasingly common, and some nations have legislated to prevent their …
Extraterritorial Effect Of The Equitable Decree, Willard T. Barbour
Extraterritorial Effect Of The Equitable Decree, Willard T. Barbour
Articles
ANYONE whom the study of equity has led into the by-paths of V Canon Law will recall that the Sext ends with a splendid array of imposing maxims, not improbably the source of the Latin maxims with which every lawyer is familiar. The inveterate habit formed by the ecclesiastics of expressing a legal principle in a short and crisp formula persisted when they came into the courts of law and is peculiarly in evidence among the chancellors of the fifteenth century. What may at first have been merely casual became through repetition a habit and the result has been to …
Jurisdiction Over Foreign Ships In Territorial Waters, Charles Noble Gregory
Jurisdiction Over Foreign Ships In Territorial Waters, Charles Noble Gregory
Michigan Law Review
War, says Grotius, "is undertaken for the sake of peace." So discussion is undertaken for the sake of conclusions. If the conclusions are not as definite as could be wished in the present instance, it is hoped that it is not wholly due to the indolence or incompetency of the writer, but in large part to the difficulties presented by the overlapping of municipal and international laws, and by the lack of any final tribunal which can adjust and end differences. Again Grotius, and there is no better authority, quotes approvingly certain rules of mercy as part of the law …