Law Commons^™

A Further Look At A Hague Convention On Concurrent Proceedings, Paul Herrup, Ronald A. Brand

Articles

The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles we have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological …

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 …

Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), Spearit

Book Chapters

For most Americans, “prison jihad” may sound frightening and conjure images of religious militants, bearded, turbaned, and under the spell of foreign radical networks…. While this may be the immediate impression, there is nothing like that happening in American prisons. However, there has been a different type of jihad taking place, one that is real and identifiable. This is not the sensational jihad of headline media; rather, this jihad is uneventful and quiet by comparison and has persisted since the 1960s with hardly any public notice.

Despite little attention and recognition, Muslims in prison occupy a unique spot in the …

M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand

Book Chapters

In the 1972 decision in M/S Bremen v Zapata Off -Shore Company, the U.S. Supreme Court brought together the development of doctrines dealing with party autonomy in choice of court and forum non conveniens. Especially when considered alongside developments favoring arbitration clauses in U.S. courts, the case provides a rich study of conflicts of laws jurisprudence in the twentieth century. This chapter begins with a discussion of fundamental elements of the development of party autonomy in U.S. law and the historical context of the law prior to The Bremen. A brief mention of how one prominent political family …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Urgenda Vs. Juliana: Lessons For Future Climate Change Litigation Cases, Paolo Davide Farah, Imad Antoine Ibrahim

Articles

No abstract provided.

Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel

Articles

This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: …

Prison Transfers And The Mootness Doctrine: Disappearing The Rule Of Law In Prisons, Spearit

Book Chapters

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer …

L’Utilité Du Droit Comparé (The Utility Of Comparative Law), Vivian Grosswald Curran

Book Chapters

French Abstract: Cette contribution était le discours d’ouverture à la Conférence des 100 ans de l’Institut Édouard Lambert à l’Université de Lyon. Elle discute de l’utilité du droit comparé dans le monde actuel d’une perspective technique dans le cadre d’une situation aux États-Unis et d’une perspective plus politique dans le cadre d’un arrêt de la CJUE.

English Abstract: This essay was delivered as a keynote address to the conference to celebrate the 100th anniversary of the Institut Édouard Lambert at the University of Lyon. It argues for the usefulness of comparative law in today’s world from a technical angle in …

Muslims In Prison: Advancing The Rule Of Law Through Litigation Praxis, Spearit

Articles

Islamic ideas about justice and equality directly informed the development of prison law jurisprudence in the United States. Since the early 1960s, when federal courts began to hear claims by state prisoner-petitioners, Muslims began to look to courts to establish Islam in prison and inaugurated an ongoing campaign for civil rights. The trend is significant when considering Muslims represent a relatively small percentage of the American population. Decades of persistent litigation by Muslims in courts have been integral to developing the prisoners’ rights movement in America. The Muslim impact on prison law and culture is an underappreciated phenomenon that involves …

Changing Every Wrong Door Into The Right One: Reforming Legal Services Intake To Empower Clients, Jabeen Adawi

Articles

It’s recognized that people affected by poverty often have numerous overlapping legal needs and despite the proliferation of legal services, they are unable to receive full assistance. When a person is faced with a legal emergency, rarely is there an equivalent to a hospital’s emergency room wherein they receive an immediate diagnosis for their needs and subsequent assistance. In this paper, I focus on the process a person goes through to find assistance and argue that it is a burdensome, and demoralizing task of navigating varying protocols, procedures, and individuals. While these systems are well intentioned from the lawyer’s perspective, …

Brief Of Amici Curiae Scholars Of The Law Of Non-Profit Organizations In Support Of Respondent: Americans For Prosperity Foundation V. Matthew Rodriguez, Nos. 19-251 & 19-255, Ellen P. Aprill, Roger Colinvaux, Sean Delany, James Fishman, Brian D. Galle, Philip Hackney, Jill R. Horwitz, Cindy Lott, Ray D. Madoff, Jill S. Manny, Nancy A. Mclaughlin, Richard Schmalbeck

Amici Briefs

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law.

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

Articles

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …

9/11 Impacts On Muslims In Prison, Spearit

Articles

This essay is part of a volume that reflects on the 20-year anniversary of the attacks of September 11, 2001. The work examines the impacts this event had on the management of Muslims in prison. Soon after the attacks, the culture war against Muslims in the United States began to seep into prisons, where Muslims faced heightened levels of Islamophobia, which cut across several areas of existence: the ability to access religious literature, religious leaders, and paraphernalia, in addition to the federal creation of Communication Management Units. There was also heightened hysteria about the idea of Muslim radicalization in prison, …

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 …

The Vulnerable Sovereign, Ronald A. Brand

Articles

The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

Articles

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …

Hiding Sexual Harassment: Myths And Realities, Pat K. Chew

Articles

Hiding Sexual Harassment: Myths and Realities

Nevada Law Journal, Vol. 21, p. 1223, 2021

Sexual harassment and gender disparities in the workplace continue, but we are not paying enough attention. The heralded me-too movement and the publicized downfalls of Harvey Weinstein, Bill Cosby, and other former luminaries might give the impression that the lid is blown off the indignities of harassment in the workplace and that American society’s collective disdain and abhorrence of harassment has quickly put an end to these incivilities. But these headline cases are just the tip of the sexual harassment iceberg; they may even give us …

Federal Rule 44.1: Foreign Law In U.S. Courts Today, Vivian Grosswald Curran

Articles

This article presents an in-depth analysis of the latent methodological issues that are as much a cause of U.S. federal court avoidance of foreign law as are judicial difficulties in obtaining foreign legal materials and difficulties in understanding foreign legal orders and languages. It explores Rule 44.1’s inadvertent introduction of a civil-law method into a common-law framework, and the results that have ensued, including an incomplete transition of foreign law from being an issue of fact to becoming an issue of law. It addresses the ways in which courts obtain information about foreign law today, suggesting among others the methodological …

Family Law Disputes Between International Couples In U.S. Courts, Rhonda Wasserman

Articles

Increasing mobility, migration, and growing numbers of international couples give rise to a host of family law issues. For instance, when marital partners are citizens of different countries, or live outside the country of which they are citizens, or move between countries, courts must first determine if they have jurisdiction to hear divorce or child custody actions. Given that countries around the world are governed by different legal regimes, such as the common law system, civil codes, religious law, and customary law, choice of law questions also complicate family litigation. This short article addresses the jurisdictional and other conflicts issues …

Law And Authors: A Legal Handbook For Writers (Introduction), Jacqueline D. Lipton

Book Chapters

Drawing on a wealth of experience in legal scholarship and publishing, Professor Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, academic, journalism, freelance content development). This introductory chapter outlines the key legal and business issues authors are likely to face during the course of their careers, and emphasizes that most legal problems have solutions so law should never be an excuse to avoid writing something that an author feels strongly about creating. The larger work draws from case studies and hypothetical examples to address issues of copyright …

Comparative Method And International Litigation 2020, Ronald A. Brand

Articles

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …

Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …

The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand

Articles

The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, …

Harry Flechtner--A True Teacher/Scholar, With Rhythm, Ronald A. Brand

Articles

This is a tribute to Professor Emeritus Harry Flechtner upon his retirement from the University of Pittsburgh School of Law. Professor Flechtner was a leading scholar on the United Nations Convention on Contracts for the International Sale of Goods (CISG), a stellar teacher, a musician who used that skill in the classroom as well as the Vienna Konzerthaus, and a genuinely nice person.

The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand

Articles

Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly …

Online Dispute Resolution, Ronald A. Brand

Articles

This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:

A. What is ODR?

B. Who does ODR?

C. What is the legal framework for ODR?

D. What …

Ascertainability: Prose, Policy, And Process, Rhonda Wasserman

Articles

One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like …

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 …