Law Commons^™

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Blatant Bribery Or Locally Lawful?: Is The Foreign Corrupt Practices Act’S “Local Laws” Defense Extinct?, Erik J. King

Erik J King

Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other …

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 …

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Arthur D. Wolf

Attorneys frequently have the choice of filing a complaint in state or federal court because of concurrent jurisdiction. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file. …

Juries, The Law, And The Original Function Of The Full Faith And Credit Clause, Hugo D. Leith

Hugo D Leith

No abstract provided.

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

The Word Commons And Foreign Laws, Thomas O. Main

Thomas O Main

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

My Space Or Theirs? Trying To Reconcile The Messy Judicial Doctrine For Off-Campus Student Expression, Ryan C. Tuck

Ryan C Tuck

The Supreme Court's student expression jurisprudence is notoriously muddled, but regarding one major question, the Court basically has remained silent: whether and when schools can regulate student expression that originates physically beyond the campus and lacks any indicia of school sponsorship. The Court has included some suggestive language in its four landmark student expression cases, including its most recent decision in 2007, but the Court never has resolved this issue. And after denying a pair of petitions for certiorari earlier this year, the Court appears unlikely to do so anytime soon. (The Court denied a similar petition the previous term.) …

Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld

Adina Rosenfeld

The purpose of this paper is to compare the differences and similarities in the evidentiary rules for DNA in Italy and in the United States in the light of their two different legal traditions. This note will compare American and Italian rules of evidence and procedure for the admissibility of DNA in criminal trials and analyze the most relevant differences between the two systems. Based on this comparison, the note will argue that Amanda Knox would not have been convicted of murdering her roommate in American lower court because the DNA evidence would not have been admissible. In Italy, Knox …

The Myth Of Cross-Border Cooperation: Mutual Assistance For The Collection Of Tax Claims In Cross-Border Insolvencies, Mathews Vattamala

Mathews Vattamala

“No country is an island to itself.” Cross-border tax cooperation and compliance are crucial to the health of the United States economy and the protection of its tax base. Yet, foreign courts administering cross-border insolvencies may deny a U.S. tax claim, even when such claims are treated as secured claims under local law. In a similar vein, a U.S. bankruptcy court recently refused to recognize the tax claim of a foreign government in reliance of the anachronistic common law doctrine, known as the “revenue rule.” To ensure other governments extend the U.S. the necessary cooperation it will need to collect …

Umbrella Clauses, Will Theory And Forum Selection Clauses, Wenxiong Zhuang

WenXiong Zhuang

Umbrella clauses in investment treaties ostensibly give rise to second-order derivative treaty obligations to observe first-order obligations. The interpretation of the ambit of umbrella clauses has proven to be highly controversial, with a marked jurisprudential split between two lines of arbitral decisions. In this paper, I utilize H.L.A. Hart’s distinction between core and penumbra meanings and the will theory of contract to show that umbrella clauses should be read widely to include contractual obligations. I then go on to analyze forum selection clauses in underlying contracts, which exemplify the intersection between the international and municipal legal orders and potentially lead …

Expressing Faith In And Giving Credit To State Courts: The Erie Doctrine And Interjurisdictional Preclusion, Jonathan S. Ross

Jonathan S Ross

The Full Faith and Credit Clause and statute require federal and state courts to give the same effect to a state court’s judgment as would the state court that rendered the judgment. Thus, the provisions promote national unity and prevent litigants from resorting to other courts after incurring adverse judgments. While the full faith and credit provisions do not acknowledge exceptions, the Court has long recognized that exceptions to them exist. However, the Court has not set forth the limits of many of these exceptions. Absent Supreme Court guidance, state and federal courts have considered and applied various novel full …

Expressing Faith In And Giving Credit To State Courts: The Erie Doctrine And Interjurisdictional Preclusion, Jonathan S. Ross

Jonathan S Ross

The Full Faith and Credit Clause and statute require federal and state courts to give the same effect to a state court’s judgment as would the state court that rendered the judgment. Thus, the provisions promote national unity and prevent litigants from resorting to other courts after incurring adverse judgments. While the full faith and credit provisions do not acknowledge exceptions, the Court has long recognized that exceptions to them exist. However, the Court has not set forth the limits of many of these exceptions. Absent Supreme Court guidance, state and federal courts have considered and applied various novel full …

Forum Shopping And The Cost Of Access To Justice: Cost And Certainty In International Commercial Litigation And Arbitration, Ali Assareh

Ali Assareh

International commercial transactions sometimes give rise to disputes. Resolving these disputes requires access to justice (whether through litigation or arbitration), and access to justice costs money⎯in some cases, enough money to overshadow the substance of the underlying dispute. Knowing this, international commercial parties almost always include a “dispute resolution” clause in their contracts. Yet, despite their prevalence and importance in managing future arbitration and litigation costs, dispute resolution clauses are often poorly negotiated and hastily drafted, perhaps because some factors that affect the cost of resolving future disputes are not known by the parties ex ante. But, while some factors …

Stare Decisis And Conflicts Between The Divisions Of Washington State Court Of Appeals: Resolving A Problem At The Trial Court Level, Mark Deforrest

Mark DeForrest

The Washington Court of Appeals is a single court that sits in three geographically distinct divisions. A case from a division is binding on trial courts throughout the state, but not on the other divisions within the court of appeals. Conflicts between the divisions occur, placing trial courts in a Catch-22 situation when faced with conflicting authorities from the court of appeals. This article identifies and explains the problem, and provides background information on the history and function of Washington's junior appellate court. The article also identifies and critiques four possible solutions of the problem facing trial courts. Ultimately, the …

An Historical Reassessment Of Full Faith And Credit, Jeffrey M. Schmitt

Jeffrey M Schmitt

The Defense of Marriage Act (“DOMA”) has generated a great deal of academic debate over Congress’s power under the Full Faith and Credit Clause. Although modern scholars have advanced a range of different interpretations, recent scholarship has argued that the Clause was originally understood to have granted Congress virtually unlimited power to prescribe how state acts and judgments would apply in other states. Under this prevailing historical view, DOMA would thus be consistent with the original meaning of the Full Faith and Credit Clause.

This Article offers a new account of the historical understanding of the Full Faith and Credit …

Making Non-Competes Unenforceable, Viva R. Moffat

Viva R. Moffat

The law of employee non-competition agreements is a mess. Differing standards, unpredictability, and uncertainty within and between jurisdictions is the norm. The variability in state law provides a significant incentive on both sides to forum shop when a dispute over a non-compete arises. This forum shopping leads to conflicts of law, and choice of law doctrine does not resolve these disputes in a satisfactory way. Because non-compete law is often a matter of fundamental public policy, the use of escape valves from the operation of conflicts principles means that there is no predictability or certainty in non-compete litigation. The search …

Conflict In The Court? Supreme Court Recusal From Marbury To The Modern Day, James Sample

James Sample

For justices of the U.S. Supreme Court, controversies pitting personal conflicts ¬¬— whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison. For all its seminal import, in Marbury, Chief Justice John Marshall adjudicated a case involving, inter alia, the validity of judicial commissions Marshall had himself signed and sealed while serving simultaneously as the outgoing Secretary …

Do Japanese Trade Secret Laws Finally Work? A Comparative Analysis Of Japanese And U.S. Trade Secret Law, Travis A. Flynn

Travis A Flynn

This paper will explore and analyze trade secret law in Japan, and how the recent revisions to Japanese trade secret law compares to the doctrine generally followed in the United States. This analysis begins with a very brief examination of the historical differences between the two regions with respect to trade secret protection. The paper then goes into a comparative statutory analysis of the Japanese Trade Secret law, examining each of the “elements” of trade secret misappropriation and comparing those to how they are applied in the United States. The next section examines the remedies and penalties available in Japan …

Law Of The Intermediated Information Exchange, Jacqueline Lipton

Jacqueline D Lipton

When Wikipedia, Google and other online service providers staged a ‘blackout protest’ against the Stop Online Piracy Act in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could – and should – be reconceputalized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries – the …

Governing The Final Frontier: A Polycentric Approach To Managing Space Weaponization And Debris, Scott Shackelford

Scott Shackelford

Effective space governance has become increasingly important to spacefaring and non-spacefaring powers alike given the interrelated problems of space weaponization and debris management, but thus far the applicable legal regimes remain amorphous and outdated. For example, the 1967 Outer Space Treaty (OST) establishes space as being free from national appropriation, while setting out certain property rights. But legal ambiguities persist, such as regarding what weapons are permitted in space since the military use of space has not been forbidden, only the placement of weapons of mass destruction in orbit and the establishment of military bases on the moon or other …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

The Equity Of The M/S Bremen And Its Extraordinary Influence, Graydon S. Staring

Graydon S. Staring

It is rare that an admiralty case will be widely influential in other fields of law. Such a one was the case of The Bremen. The Supreme Court unanimously renounced the past hostility to forum selection clauses and held them enforceable in Equity by way of admiralty, a precedent soon widely copied as a reform in common law. Note: The intention to publish a larger article on this subject has been abandoned.

A Call For Stricter Appellate Review Of Decisions On Forum Non Conveniens, Nicholas A. Fromherz

Nicholas A Fromherz

Forum non conveniens has been criticized as anachronistic and unfair. Critics say that it amounts to little more than economic protectionism, serving as a pretext for the dismissal of suits brought against domestic corporate defendants. Even if one does not view the doctrine as inherently flawed, it is undeniable that its application has been extremely uneven owing to the broad discretion exercised by district courts ruling on the issue. Troubling in any circumstances, the misapplication of forum non conveniens is all the more so because of the high stakes pertaining to the matter. When a case is dismissed on forum …