Law Commons^™

Análise Crítica Do Julgamento Por Atacado No Superior Tribunal De Justiça (Lei Nº 11.672/08 Sobre Recursos Especiais Repetitivos), Nelson Rodrigues Netto

Nelson Rodrigues Netto

This study aims at analyzing the law enforcement system for dispute resolution involving multiple and repeated special appeals before the Superior Court of Justice.

O presente estudo tem por objetivo analisar o sistema legal de solução de conflitos envolvendo múltiplos recursos especiais repetidos perante o Superior Tribunal de Justiça.

An 'Unconventional Truth': Conflict Of Laws Issues Arising Under The Cisg, Antonin I. Pribetic

Antonin I. Pribetic

This article discusses the applicability of the CISG from a Canadian conflict of laws perspective - both in terms of jurisdiction and choice of law. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and …

The Right Thing For Juveniles, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that the upper age of juvenile court jurisdiction in North Carolina should be raised from 16 to 18.

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

Constitution By Compromise, Howard Schweber, Amnon Cavari

Howard Schweber

The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and …

Are You Still My Mother? Interstate Recognition Of Adoptions By Gays And Lesbians, Rhonda Wasserman

Rhonda Wasserman

Parents and their biological children routinely cross state borders safe in the assumption that the parent-child relationship will be recognized wherever they go. The central issue raised in this Article is whether the law guarantees parents and their adopted children the same security if the parents are gay. This question is part of a broader debate about the obligation of states to recognize changes in family status effected under the laws of other states, such as same-sex marriages and migratory divorces. The debate is divisive because it pits the family against the state; one state against another; and the needs …

The Clash Of Obligations: Exercising Extraterritorial Jurisdiction In Conformance With Transitional Justice, Christen L. Broecker

Christen L Broecker

With growing frequency, courts in the United States and Europe have been placed in the unenviable position of being asked to weigh the dictates of international criminal and human rights law against the risk that enforcing that law may ignite conflict or threaten the stability of fragile governments abroad. These States have increasingly authorized the use of extraterritorial jurisdiction to allow their courts to adjudicate civil and criminal and civil disputes stemming from major human rights atrocities committed abroad. Yet as a result, their courts have been confronted with the dilemma of how to enforce the dictates of international criminal …

The Case For Prudential Standing, Joshua L. Sohn

Joshua L. Sohn

This article argues against current standing doctrine, under which plaintiffs must satisfy a variety of constitutional and non-constitutional (i.e., "prudential") requirements in order to sustain a federal lawsuit. Instead, this article contends that all standing requirements should be deemed prudential. There are several reasons for this. First, the text of the Constitution and the history of its drafting provide no support for the allegedly constitutional standing requirements. Second, when the Supreme Court has sought to justify the “constitutional” standing requirements over the years, it has repeatedly relied on prudential justifications. For instance, the Court has noted how the standing requirements …

The Global Advocate: From Ethical Anarchy To Discernable Duties, Catherine A. Rogers

Catherine A Rogers

This Article identifies the emergence of "global advocates" as an important force on the world legal stage. By definition and design, these global advocates operate in a professional “space” that is distinct from the jurisdiction in which they are licensed and stretches beyond the jurisdictional boundaries of any particular tribunal. They maneuver in the nooks and crannies, the overlap and the inconsistencies between legal systems. Legal arbitrage is a core feature of their daily practice, and perhaps one of their most essential professional skills. This detachment from their licensing jurisdiction raises fundamental questions about the origin and object of their …

Staking Claims Against Foreign Defendants In Canada: Choice Of Law And Jurisdiction Issues Arising From The In Personam Exception To The Mocambique Rule For Foreign Immovables, Antonin I. Pribetic

Antonin I. Pribetic

Canadian courts have struggled in distinguishing between in personam jurisdiction and subject-matter jurisdiction (and specifically the Mocambique rule). In particular, they appear to overlook the two-fold jurisdictional requirement that in order to proceed in a given case they must have both types of jurisdiction - in personam and subject-matter - and that when jurisdictional challenges arise due to the fact that the dispute deals with foreign immovables Canadian courts, influenced by the post-Morguard focus on in personam jurisdiction, are dealing with the foreign land question under the rubric of in personam jurisdiction, not under the traditional heading of subject-matter jurisdiction. …

State Consent, Investor Interests And The Future Of Investment Arbitration: Reanalyzing The Jurisdiction Of Investor-State Tribunals In Hard Cases, Paul M. Blyschak

Paul M Blyschak

While the international investment regime has enjoyed an extended period of enthusiastic subscription, this euphoria has begun to recede in some quarters. Although sovereign consent to waive immunity is at the heart of investor-State arbitration, many states feel that this consent has been illegitimately expanded. In this regard, this thesis examines the degree to which the interpretive approach taken to state consent to arbitration can affect whether an investment tribunal will assert jurisdiction over an investment dispute. Investor-State tribunals often confront ‘hard cases’ where their authority to decide a dispute is vigorously contested by respondent host states. This thesis examines …

State Consent, Investor Interests And The Future Of Investment Arbitration: Reanalyzing The Jurisdiction Of Investor-State Tribunals In Hard Cases, Paul M. Blyschak

Paul M Blyschak

While the international investment regime has enjoyed an extended period of enthusiastic subscription, this euphoria has begun to recede in some quarters. Although sovereign consent to waive immunity is at the heart of investor-State arbitration, many states feel that this consent has been illegitimately expanded. In this regard, this thesis examines the degree to which the interpretive approach taken to state consent to arbitration can affect whether an investment tribunal will assert jurisdiction over an investment dispute. Investor-State tribunals often confront ‘hard cases’ where their authority to decide a dispute is vigorously contested by respondent host states. This thesis examines …

North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead

Tamar R Birckhead

North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The …

Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen

Daniel Gonen

A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of …

The Scent Of Subject Matter Jurisdiction: Remand And Appellate Review Under The Supplemental Jurisdiction Statute, Deborah J. Challener

Deborah J Challener

Abstract

Under 28 U.S.C. § 1447(c) and (d), as well as Supreme Court precedent, remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction. Until recently, all appellate courts that had addressed the issue had concluded that the remand of supplemental claims under 28 U.S.C. § 1367(c), the supplemental jurisdiction statute, does not constitute a remand for lack of subject matter jurisdiction and therefore is reviewable on appeal.

In 2007, however, the Supreme Court held in Powerex Corp. v. Reliant Energy Services, Inc. that as long as a remand …

Manipulating Court Doctrine For The Good Of The Common Law And Compulsory Arbitration, Richard L. Barnes

richard l barnes

No abstract provided.

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Matthew I Hall

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the “cases or controversies” clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model—which was first adopted by the Supreme Court less than 45 years ago—fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the “cases or controversies” clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve mootness issues …

This Ain’T The Texas Two Step Folks: Disharmony, Confusion, And The Unfair Nature Of Personal Jurisdiction Analysis In The Fifth Circuit, Angela M. Laughlin

Angela M Laughlin

This article explores the deep divide in federal and state courts over the proper application of the minimum contacts test, as well as the arguments in favor of each test. As a case study, this article will use the Fifth Circuit Court of Appeals as a model of how personal jurisdiction analysis is playing out in the federal circuit courts. It will explore how this circuit court has resolved the foreseeability issue and in particular, it will explore the additional burdens placed by that Circuit’s reading of Burger King v. Rudzewicz, which transfers the burden of proof of the fundamental …

Minimum Contacts In A Borderless World: Voice Over Internet Protocol And The Coming Implosion Of Personal Jurisdiction Theory, Danielle Keats Citron

Danielle Keats Citron

Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A nonresident’s “minimum contacts” with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state’s exercise of sovereignty over her. At the same time, the nonresident’s “purposeful availment” of opportunities within the state is seen as implying her agreement to that state’s jurisdiction in exchange for the protection of its laws. This theory presumes that a nonresident directs voice communications to known places by dialing a telephone number’s area code. Voice over Internet Protocol (“VoIP”) …

Reaffirming The Rights Of Foreign Investors To The Protection Of Icsid Arbitration: Sempra Energy International V. The Argentine Republic, Daniel Krawiec

Daniel A Krawiec II

Earlier this decade, the Argentine government responded to a substantial domestic economic crises by passing several emergency laws and unilaterally changing the terms of its investment agreements with foreign investors. Sempra v. Argentine Republic is an important case because the tribunal decisively reaffirmed the right to ICSID arbitration for American investors harmed by Argentina’s actions. Furthermore, the tribunal held that the U.S.-Argentina bilateral investment treaty provided substantial substantive investment protection.

The Right To A Fair Mistrial: A Criticism Of The Procedures At The International Criminal Tribunal For The Former Yugoslavia, Kelly Isel Robreno

Kelly Isel Robreno

My note highlights the systematic procedural wrongs that persist at the International Criminal Tribunal for the Former Yugoslavia. The background begins with a discussion of the model for the tribunal, Nuremberg. It then reviews the turmoil that dominated the Balkan region and demonstrates the reasons that the U.N. was prompted to create the tribunal. The analysis pays close attention to the language that authorized the tribunal in comparison to the Nuremberg Charter. This section also presents several case studies from the region highlighting many of the systematic and procedural flaws that perpetuate so long after its founding (now almost 15 …

Sovereign Immunity’S Penumbras: Common Law, ‘Accident,’ And Policy In The Development Of Sovereign Immunity Doctrine, Katherine J. Florey

Katherine J. Florey

“Sovereign Immunity’s Penumbras” attempts to make a fresh contribution to sovereign immunity scholarship by examining how sovereign immunity doctrine develops at the margins. At their core, what sovereign immunity doctrines prohibit is generally clear: a suit against an unconsenting sovereign (whether a state, a tribe, a foreign nation, or the federal government) for money damages. When suits fall outside this configuration, however, courts often have difficulty determining exactly how far the doctrine should extend. What should courts do, for example, when a sovereign is not a named defendant in a given suit, but will have to join the litigation if …

The Place Of Storytelling In Legal Reasoning: Abraham Joshua Heschel’S Torah Min Hashamayim, Stefan H. Krieger

Stefan H Krieger

This article reads the teachings of two rabbis from the Second Century through the lenses of cognitive science on legal thinking and shows the relationship of their narratives and legal opinions. Cognitive scientists posit that both logical and narrative thinking are essential modes of cognitive functioning. The stories and legal decisions of Rabbi Akiva and Rabbi Ishmael, as described by Abraham Joshua Heschel in his masterpiece, Torah Min Hashamayim (Heavenly Torah) support these insights. Both rabbis lived in a critical period in Jewish history. The Temple, the central focus of the people’s connection with God, had been destroyed; large numbers …

Leave Those Orcs Alone: Property Rights In Virtual Worlds, Kevin Deenihan

Kevin E Deenihan

Conversion of property is a familiar piece of law. What about conversion of virtual property? In 2006, a man filed suit claiming theft of virtual real estate he maintained in a Virtual World. The Judge may well have wondered: is this property law? Intellectual property? Torts? Contract? When should the law even apply to Virtual Worlds at all? New societies populated by millions of people have sprung up in the online context. Their inhabitants buy goods, trade with each other, and form complex self-regulating organizations and economic systems. All are activities governed in the real world by centuries of legal …

Res Judicata In The Icj’S Genocide Case: Implications For Other Courts And Tribunals?, Peter S. Prows, Michael Ottolenghi

Peter S Prows

The International Court of Justice’s (“ICJ”) 2007 Judgment in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (“Genocide case”) has, perhaps predictably, already attracted significant attention from the academic community. Much of this attention has focused on the merits of the judgment, but one commentator has suggested that the Genocide case will be remembered mostly “for the wider impact it will have on issues of res judicata and evidence.” While the important evidentiary issues in the Genocide case have started to generate their own commentary, the issue of res judicata has received …

Wedging Open The Courthouse Doors: Federal Employee Access To Judicial Review Of Constitutional And Statutory Claims, Barbara A. Atkin, Elaine Kaplan, Gregory O'Duden

Barbara A. Atkin

This article addresses, in a comprehensive fashion, jurisdictional barriers that federal employees face in obtaining judicial review of statutory and constitutional claims. Many statutory claims that employees had previously brought in federal court are now precluded entirely by the Civil Service Reform Act of 1978. Courts, however, retain jurisdiction where there are independent jurisdictional bases for review. They also traditionally have preserved their jurisdiction to grant equitable relief for constitutional violations. Determination of those types of government action for which Congress intended the CSRA remedies to be exclusive has been hotly litigated. In addition, even when the claims are not …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein

Christine A. Klein

As a metaphor for the interaction of law and culture, a crystal-clear bottle of water is striking in its simplicity and purity. Bottled water has spawned a rich subculture of beverage drinkers, united by the truths and myths of bottled water that they embrace. More recently, an equally fertile subculture of bottled water protest has begun to coalesce. Notably, the cultural norms evidenced by supporters and detractors go far beyond mere hydration, touching upon such far-flung notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast, the legal narrative is surprisingly sparse, overlooking an important opportunity to …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline Lipton

Jacqueline D Lipton

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Do Courts Create Moral Hazard? When Judges Nullify Employer Liability In Arbitrations: An Empirical Analysis, Michael H. Leroy

Michael H LeRoy

State courts are creating conditions for moral hazard in the arbitration of employment disputes. The problem begins when employers compel individuals to arbitrate their legal claims, denying them access to juries and other benefits of a trial. This empirical study identifies a disturbing trend. State courts vacated many arbitration wins for employees, but not for employers. My database has 443 federal and state court rulings from 1975-2007. Remarkably, state appellate courts confirmed only 56.4% of employee wins in arbitration. But when the same courts ruled on employer victories, they confirmed 86.7% of awards. The difference in rates was statistically significant. …

“Better The Devil You Know”: Home State Approaches To Promoting Transnational Corporate Accountability, Christen L. Broecker

Christen L Broecker

Liberal International Relations theory provides a dynamic account of lawmaking, implementation and enforcement at the individual, State, and international levels. In many respects, that account is reflected in the recent global effort to enhance business respect for human rights. However, in the area of State involvement and regulation, the business and human rights (BHR) effort has been extremely lacking. This article argues that while past efforts to enhance corporate respect for human rights at the individual and international levels have been absolutely critical and will continue to be so in the future, the era of State restraint must – and …