Law Commons^™

Interagency Litigation And Article Iii, Joseph Mead

All Maxine Goodman Levin School of Urban Affairs Publications

Agencies of the United States often find themselves on opposite sides of the "v." in disputes ranging from alleged unfair labor practices in federal agencies to competing statutory interpretations to run-of-the mill squabbles over money. Yet Article III's case-or-controversy requirement includes—at a minimum—adverse parties and standing. Courts have disagreed with one another over the extent to which litigation between the sovereign and itself meets Article III standards. Despite the volume of scholarship on Article III standing, relatively little attention has been paid to Article III's requirement of adverse parties in general, or the justiciability of intrabranch litigation in particular. Looking …

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Faculty Scholarship

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …

Bargaining Practices: Negotiating The Kampala Compromise For The International Criminal Court, Noah Weisbord

Faculty Publications

At the International Criminal Court's (ICC) Review Conference in 2010, the ICC's Assembly of States Parties (ASP) agreed upon a definition of the crime of aggression, jurisdictional conditions, and a mechanism for its entry into force (the "Kampala Compromise"). These amendments give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating, or executing illegal wars, beginning as early as January 2017.

This article explains the bargaining practices of the diplomats that gave rise to this historic development in international law. This article argues that the international-practices framework, as currently conceived, does not adequately capture …

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Stephen E. Sachs

Faculty Scholarship

The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.

If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant¹s only remedy is a transfer motion under § 1404.

Both sides are wrong. Forum-selection …

Judging The Flood Of Litigation, Marin K. Levy

Faculty Scholarship

The Supreme Court has increasingly considered a particular kind of argument: that it should avoid reaching decisions that would “open the floodgates of litigation.” Despite its frequent invocation, there has been little scholarly exploration of what a floodgates argument truly means, and even less discussion of its normative basis. This Article addresses both subjects, demonstrating for the first time the scope and surprising variation of floodgates arguments, as well as uncovering their sometimes-shaky foundations. Relying on in-depth case studies from a wide array of issue areas, the Article shows that floodgates arguments primarily have been used to protect three institutions: …

Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law …

Challenges To Forum Non Conveniens, Ronald A. Brand

Articles

This paper was originally prepared for a Panel on Regulating Forum Shopping: Courts’ Use of Forum Non Conveniens in Transnational Litigation at the 18th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium: Tug of War: The Tension Between Regulation and International Cooperation, held at New York University School of Law, October 25, 2012. The doctrines of forum non conveniens and lis alibi pendens have marked a significant difference in approach to parallel litigation in the common law and civil law worlds, respectively. The forum non conveniens doctrine has recently taken a beating. This has come (1) in …

Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran

Articles

The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).

Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian …

Federal Judicial Center International Litigation Guide: Recognition And Enforcement Of Foreign Judgments, Ronald A. Brand

Articles

This publication was prepared for the U.S. Federal Judicial Center as a guide for Federal Judges on the recognition and enforcement of foreign judgments. It covers applicable law in federal courts, the issues raised when a foreign judgments recognition case, grounds for non-recognition (and their sources in the law), and recent developments that may affect future adjustments in the rules. The law in those states that have adopted one of the Uniform Acts is covered, as is the law in states that remain under a common law system for recognition and enforcement of judgments. Also covered is the 2005 Hague …