Law Commons^™

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of efficiency of judicial proceedings and fairness to nonresidents than the immunity from service of process doctrine. The article proposes that the immunity from service of …

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …

No More Free Easements: Judicial Takings For Private Necessity, John Martinez

John Martinez

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592 (2010), the United States Supreme Court was one vote short of recognizing "judicial takings" as viable federal constitutional claims. If such claims become available, then we must identify with precision those circumstances in which judicial takings claims should apply. The full panoply of remedies--forced condemnation, injunction, and interim damages--must be considered. This article begins the discussion with what perhaps are the easy cases, in which governmental judicial conduct imposes a permanent physical occupation on private land based solely on the private necessity of the benefitted …

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

John Martinez

A Proposal for Establishing

Specialized Federal and State "Takings Courts"

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

Takings doctrine is a mess. This article proposes that we just accept that -- and establish specialized federal and state "takings courts" for adjudicating takings claims.

In 1978 the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. And in 2005, the Court abrogated a test for takings which it had followed for 25 years. Indeed, some scholars have even resigned themselves to embracing vagueness as a virtue in takings …