Law Commons^™

The Law Of Unintended Consequences: Supreme Court Jurisdiction Over Interlocutory Class Certification Rulings, Scott E. Gant

The Journal of Appellate Practice and Process

No abstract provided.

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

A Global Law Of Jurisdiction And Judgments: Views From The United States And Japan, Kevin M. Clermont

Cornell Law Faculty Publications

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.

The Role Of Private International Law In The United States: Beating The Not-Quite-Dead Horse Of Jurisdiction, Kevin M. Clermont

Cornell Law Faculty Publications

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. …

French Article 14 Jurisdiction, Viewed From The United States, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

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 …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

Dead Men Telling Tales - A Policy-Based Proposal For Survivability Of Qui Tam Actions Under The Civil False Claims Act, Vickie J. Williams

ExpressO

The civil False Claims Act is a powerful tool used by both the federal government and private citizens, under the statutes "qui tam" or "whistleblower" provisions, to fight fraud against the government. Use of the statute has continually risen in recent years, and recoveries under the statute are in the billions of dollars. The unique relationship between a private citizen whistleblower and the government who both have an interest in the case raises many interesting procedural and substantive issues of federal law. This article proposes an answer to one of these questions. The article proposes that a whistleblower suit survives …

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

Soldiers Of Semipalatinsk: Seeking A Theory And Forum For Legal Remedy, Anne Miers Kammer

San Diego International Law Journal

This Comment will address the unique dilemma of individuals in Kazakhstan whose health has been compromised by the former Soviet Union's 40-year period of nuclear testing on what is now Kazakhstan soil. The principal legal analysis of this Comment will focus on the availability of remedies (in the form of monetary damages available through legal resolution) to the citizens and/or state of Kazakhstan, and potential judicial forums in which to seek those remedies. Particular attention will be paid to the comparative likelihood of successful remedial legal action if pursued by a private class of Kazakhstan citizens versus action pursued by …

Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon

University of Michigan Journal of Law Reform

Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.

The …

Courts And Lawyers On The Arkansas Frontier, Lynn Foster

University of Arkansas at Little Rock Law Review

No abstract provided.

The Securities And Exchange Commission Goes Abroad To Regulate Corporate Governance, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

A Positive Theory Of Universal Jurisdiction, Eugene Kontorovich

ExpressO

Academic discussions of universal jurisdiction (“UJ”) have been almost entirely normative, focusing on what UJ “should” be in an ideal world. This Article breaks with the normative approach and analyzes UJ from a positive perspective, drawing on historical evidence and rational choice models to understand what UJ has in fact been and what it can be.

Piracy was for centuries the only UJ offense. This Article begins by isolating the characteristics of piracy that made it uniquely suitable for UJ. While these characteristics show why UJ over piracy would cause fewer problems than UJ over other crimes, they still fail …

Compagnie Noga D'Importation V. Russian Federation, 361 F. 3d 676 - Court Of Appeals, 2nd Circuit 2004, Roger J. Miner '56

Circuit Court Opinions

In these consolidated appeals, we are confronted with the issue of whether a foreign arbitration award can be confirmed and enforced against a sovereign nation where the arbitration agreement was signed by an organ of that nation's central government and where that organ — and not the nation itself — participated in the underlying arbitration proceedings. Specifically, plaintiff-appellant Compagnie Noga D'Importation et D'Exportation S.A. ("Noga") sought to confirm and enforce a Swedish arbitration award against defendant-appellee Russian Federation. The 678*678 Russian Federation opposed confirmation principally on the ground that it was a party to neither the arbitration agreement nor …

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

ExpressO

No abstract provided.

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic Nelson Smalkin, Frederic Nelson Chancellor Smalkin

ExpressO

This article takes a fresh look at the increasingly discussed topic of the scarcity of civil cases reaching trial in the Article III system. The number of cases tried declined by more than one-fourth in the decade from 1989-1999, and the decline continued at about the same rate to the end of the latest year for which statistics are available, 2002, while ADR (particularly arbitrations) skyrocketed.

The authors examine the history of competing English courts (particularly Common Pleas and King's Bench) for signs that, in fact, market competition can arise among dispute-resolving bodies. They also apply economic analysis to the …

Ten Years Of Pena: Revisiting The Utah Mixed Question Standard Of Appellate Review, Andrew Franklin Peterson

Brigham Young University Journal of Public Law

No abstract provided.

Brief Amici Curiae Of Legal Historians Listed Herein In Support Of The Petitioners, Rasul V. Bush, Nos. 03-334 & 03-343 (U.S. Jan. 14, 2004), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Universal Jurisdiction: Steps Forward, Steps Back, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Tribal Immunity And Tribal Courts, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Whose Justice - Reconciling Universal Juristidiction With Democratic Principles, Diane Orentlicher

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Stolen Art And Sovereign Immunity: The Case Of Altmann V. Austria, Michael D. Murray

Law Faculty Scholarly Articles

Part I of this Article will briefly recount the principal facts of Altmann v. Republic ofAustria. Parts II through IV will then address the principal arguments that Austria has raised against the application of the Foreign Sovereign Immunities Act, namely: 1. That the FSIA would have an impermissible retroactive effect if it were to be applied to Altmann's claims arising from operative facts that occurred before both the effective date of the FSIA and the 1952 Tate Letter; 2. That the conduct of the Nazi regime and its agencies and instrumentalities in World War II, including Austria, in no way …

Jurisdiction Under The Foreign Sovereign Immunities Act For Nazi War Crimes Of Plunder And Expropriation, Michael D. Murray

Law Faculty Scholarly Articles

This article addresses each of these issues regarding the application of jurisdiction under the FSIA to World War II and other pre-1952 war crimes, including claims involving expropriation and plunder of personal property, and concludes that none of these issues prevents the exercise of jurisdiction under the FSIA for resolution of these claims in United States courts. Part II discusses the history of the doctrine of sovereign immunity in the United States prior to the enactment of the FSIA, with particular reference to the development of the restrictive theory of sovereign immunity. Part III discusses the structure and purpose of …

Lessons For The Hague: Internet Jurisdiction In Contract And Tort Cases In The European Community And The United States, 23 J. Marshall J. Computer & Info. L. 1 (2004), Moritz Keller

UIC John Marshall Journal of Information Technology & Privacy Law

With the increasing use of the Internet, all on-line users, web site owners, e-commerce companies and consumers alike, feel the need to be able to rely on clear standards for a potential contract or tort lawsuit following the Internet presence that could lead to multinational litigation. This goal could be achieved if the negotiations of the Hague Convention on international jurisdiction and enforcement of foreign judgments in civil and commercial matters succeed in harmonizing the rules of the different legal systems around the globe, or at least create a minimum standard for legal cases which would benefit greatly e-commerce and …