Law Commons^™

The Court And The Private Plaintiff, Elizabeth Beske

Articles in Law Reviews & Other Academic Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand

Book Chapters

When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …

In Search Of The First-Round Knockout A Rule 12(B) Primer, Kate Rogers, Leonard Niehoff

Articles

Boxing enthusiasts define success not just by wins and losses but also by knockouts. Many of the greatest fighters in the history of boxing—Rocky Marciano, Mike Tyson, Jack Dempsey, and Sugar Ray Robinson—were known for their knockout punching power. Within the category of knockouts, the gold standard is the first-round knockout, the moment when stunned fans watch a fighter take the opponent out of the contest before either of them has broken a sweat.

Playing The Game Of International Law, Uri Weiss, Joseph Agassi

Touro Law Review

In the realist game of international negotiations, each state attempts to promote their interest regardless of international law. Thus, it is negotiations in the shadow of the sword, i.e., a negotiation in which each side knows that if the parties will not achieve an agreement, the alternative may be a war, and thus the bargaining position of each party is a function of their capacities in a case of war. Negotiation in the shadow of international law is an alternative to it: in this alternative the parties negotiate according to their international legal rights. It reduces injustice and incentive to …

The Powers Of The Inter-American Court Of Human Rights Towards The Implementation Of Gender Justice Laws At The National Level In South America, Kiana Therrien-Tomas Miss

Bridges: An Undergraduate Journal of Contemporary Connections

Although South America is earning international attention as an innovative global leader in various fields, it currently remains a nation steeped in traditional beliefs and practices. Despite prevailing laws against domestic violence, countless Latin American women proceed to be failed by the legal system. As South American society produces its own theory of gender justice, apprised by local realities and universally accepted norms, women's rights advocates and the Supreme Court can represent a decisive role in forming the discourse. Throughout this work, I aim to contemplate the powers of the Inter-American Court of Human Rights (IACHR) towards the implementation of …

United States Food Law Update: The Fda Food Safety Modernization Act, Obesity And Deceptive Labeling Enforcement, A. Bryan Endres, Nicholas R. Johnson

Journal of Food Law & Policy

The long-awaited enactment of the FDA Food Safety Modernization Act (FSMA), the most significant amendment to the Federal Food, Drug, and Cosmetic Act in several decades, provides the Food and Drug Administration (FDA) with significantly enhanced jurisdiction to close some of the gaps in the domestic food safety system. The enhanced FDA authority, however, will have little impact on the shared governance system at the federal level that involves multiple agencies, as the Act does not address the U.S. General Accounting Office's (GAO) repeated calls for consolidation of the fragmented federal food safety system. Rather, the Act perpetuates the division …

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

Law School News: Inside Rwu Law's Small 'Admiralty Empire' 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

All Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of …

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically …

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …

In Re Trulia: Revisited And Revitalized, Emma Weiss

University of Richmond Law Review

No abstract provided.

Clarifying Uncertainty: Why We Need A Small Claims Copyright Court, John Zuercher

Marquette Intellectual Property Law Review

This article is concerned with the question of whether copyright law in the United States is currently equipped to achieve its original goal, set within the U.S. Constitution, to promote innovation and progress. This article suggests that copyright law is not equipped to achieve this goal because a paradox inherent in copyright law is hindering copyright litigation and causing uncertainty. The paradox is found in 17 U.S.C. § 106, which protects transformative works that are derivative, and 17 U.S.C. § 107, which protects transformative works as fair use. Ideally, the federal courts would solve this dilemma by interpreting the appropriate …

The Continuing Evolution Of U.S. Judgments Recognition Law, Ronald A. Brand

Articles

The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that …

The Function Of The International Court Of Justice In The World Community, Ernest A. Gross

Georgia Journal of International & Comparative Law

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Section 1983 Custom Claims And The Code Of Silence, Myriam Gilles

Touro Law Review

No abstract provided.

Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer

All Faculty Scholarship

For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives from the cryptic language of Spokeo a six stage process (complete with flowchart) that represents the Court’s current equilibrium. We put …

The Role Of National Courts In The Post Arbitral Process: The Possible Issues With The Enforcement Of A Set-Aside Award, Rishabh Jogani

Rishabh Jogani

No abstract provided.

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators. But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior …

Aviation Litigation: Federal Preemption And The Creation Of A Federal Remedy As A Means To Extinguish The Current Confusion In The Courts, Deborah J. Olsen

Pepperdine Law Review

No abstract provided.

Thompson V. Thompson: The Jurisdictional Dilemma Of Child Custody Cases Under The Parental Kidnapping Prevention Act , Steven M. Schuetze

Pepperdine Law Review

No abstract provided.

Kiobel V. Royal Dutch Petroleum: A Practitioner's Viewpoint, Marco Simons

Maryland Journal of International Law

No abstract provided.

Kiobel, Unilateralism, And The Retreat From Extraterritoriality, Austen L. Parrish

Maryland Journal of International Law

No abstract provided.

Standing To Sue A Carrier's Killers , Davis J. Howard

Pepperdine Law Review

No abstract provided.

Cooperative Agreements: Government-To-Government Relations To Foster Reservation Business Development, Joel H. Mack, Gwyn Goodson Timms

Pepperdine Law Review

No abstract provided.

Federal Judicial And Legislative Jurisdiction Over Entities Abroad: The Long-Arm Of U.S. Antitrust Law And Viable Solutions Beyond The Timberlane/Restatement Comity Approach, Michael G. Mckinnon

Pepperdine Law Review

No abstract provided.

The Legal World Wide Web: Electronic Personal Jurisdiction In Commercial Litigation, Or How To Expose Yourself To Liability Anywhere In The World With The Press Of A Button, Robert M. Harkins Jr.

Pepperdine Law Review

No abstract provided.