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Articles 1 - 9 of 9
Full-Text Articles in Law
The Hague Convention On The Civil Aspects Of International Child Abduction And The Latent Domestic Relations Exception To Federal Question Jurisdiction, Sam F. Halabi
Faculty Publications
This article explores the discrepancy in the law of federal jurisdiction as it has developed under the Hague Child Abduction Convention. In contrast to return claims where the remedy is discrete, finite, and closely tied to fundamental international obligations under the treaty, orders to enforce access rights are, or would be, amorphous, ongoing, and subject to other administrative structures codified in the convention as well as, in the U.S. system, adding responsibilities for federal judges more generally associated with those undertaken by state judges. Even in the one federal appellate decision that explicitly acknowledged a judicially enforceable right to ensure …
The Supreme Court's Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley
The Supreme Court's Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley
Faculty Publications
Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional. "In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong
Faculty Publications
This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.
Jurisdictional Discovery In United States Federal Courts, S. I. Strong
Jurisdictional Discovery In United States Federal Courts, S. I. Strong
Faculty Publications
The article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes …
In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell
In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell
Faculty Publications
The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to …
Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff
Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff
Faculty Publications
In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong
Faculty Publications
Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …
The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi
Faculty Publications
The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …
Personal Jurisdiction After Asahi: The Other (International) Shoe Drops, R. Lawrence Dessem
Personal Jurisdiction After Asahi: The Other (International) Shoe Drops, R. Lawrence Dessem
Faculty Publications
This articles analyzes the growth and development of the doctrine of personal jurisdiction and the Supreme Court's consideration and application of that doctrine in the recent case of Asahi Metal Industry Co. v. Superior Court. Asahi is significant both because of the nature of the suit and the nationality of the third-party defendant. The Supreme Court for the first time directly addressed the constitutionality of the ‘stream of commerce’ doctrine of personal jurisdiction, a jurisdictional theory that has been employed increasingly in recent years in products liability actions. Asahi also is one of the few cases in which the Court …