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Full-Text Articles in Law

Identity Federalism In Europe And The United States, Vlad Perju Jan 2020

Identity Federalism In Europe And The United States, Vlad Perju

Vanderbilt Journal of Transnational Law

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives, too, have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional ...


Who Owns A Joke? Copyright Law And Stand-Up Comedy, Scott Woodard Jan 2019

Who Owns A Joke? Copyright Law And Stand-Up Comedy, Scott Woodard

Vanderbilt Journal of Entertainment & Technology Law

Copyright laws are touted as the highest legal authorities by which artists can protect their works against all comers. However, when an artist's work fails to fit neatly into the statutory parameters needed to acquire copyright protection, that artist could receive no safeguards to ensure that their works will not be misappropriated by others.

This article undertakes a comparative analysis of two copyright regimes--from the United States and the United Kingdom--and measures their relative similarities and differences. From this comparison, this article explains how stand-up comedians, a group of artists who have traditionally believed their work was incapable of ...


Undemocratic Restraint, Fred O. Smith, Jr. Apr 2017

Undemocratic Restraint, Fred O. Smith, Jr.

Vanderbilt Law Review

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch's avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine. The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has ...


You're It! Tag Jurisdiction Over Corporations In Canada, Tanya J. Monestier Jan 2017

You're It! Tag Jurisdiction Over Corporations In Canada, Tanya J. Monestier

Vanderbilt Journal of Transnational Law

In September 2015, the Supreme Court of Canada released its decision in Chevron v. Yaiguaje, a case that legal commentators had been keeping an eye on for years. The Chevron case has spanned several decades as well as several continents, and the enforcement action in Ontario was the latest in a series of procedural moves aimed at enforcing a nearly $10 billion Ecuadorian judgment against the oil giant. In Chevron, the plaintiffs sought to have the judgment enforced in Ontario against both Chevron (the judgment debtor) and Chevron Canada (a seventh-level indirect subsidiary of the judgment debtor). The Chevron case ...


Agencies' Obligation To Interpret The Statute, Aaron Saiger Oct 2016

Agencies' Obligation To Interpret The Statute, Aaron Saiger

Vanderbilt Law Review

Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpretation. That is wrong, jurisprudentially and ethically. An agency that commands deference bears a duty to adopt what it believes to be the best interpretation of the relevant statute. Deference assigns to the agency, rather than to a court, power authoritatively to declare what the law is. That power carries with it a duty to give the statute the best reading the agency can ...


A Tale Of Two Jurisdictions, Alan M. Trammell Mar 2015

A Tale Of Two Jurisdictions, Alan M. Trammell

Vanderbilt Law Review

The Supreme Court has recently clarified one corner of personal jurisdiction-a court's power to hale a defendant into court-and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is permissible. The traditional theory, general jurisdiction, authorizes jurisdiction when there is a tight connection between the defendant and the forum. The modern theory, specific jurisdiction, focuses more on the connection between the lawsuit itself and the forum. Although the two theories should have developed in tandem, the doctrine has become ...


In Search Of The Probate Exception, James E. Pfander, Michael J.T. Downey Nov 2014

In Search Of The Probate Exception, James E. Pfander, Michael J.T. Downey

Vanderbilt Law Review

As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal jurisdiction over ecclesiastical matters, the "law" and "equity" limits of Article III, and the structure of our federal government. The Supreme Court's 2006 decision in Marshall v. Marshall sought to clarify matters, but lower courts continue to debate the breadth of the exception. In this Article, we go in search of ...


On The Efficient Deployment Of Rules And Standards To Define Federal Jurisdiction, Jonathan R. Nash Mar 2012

On The Efficient Deployment Of Rules And Standards To Define Federal Jurisdiction, Jonathan R. Nash

Vanderbilt Law Review

Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but they have not recognized the relationship to the rule-standard distinction, nor more importantly have they considered the importance of where discretion enters the jurisdictional calculus. This Article argues that predictability and efficiency make it normatively desirable to have rules predominate jurisdictional boundaries and thus to ...


The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick Jan 2012

The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent ...


Rethinking Jurisdictional Discovery Under The Hague Evidence Convention, Kathleen B. Gilchrist Jan 2011

Rethinking Jurisdictional Discovery Under The Hague Evidence Convention, Kathleen B. Gilchrist

Vanderbilt Journal of Transnational Law

When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts--applying the balancing test formulated by the Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. District Court and favoring application of the Federal Rules--is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three ...


The International Law Of State Immunity And Its Development By National Institutions, Christian Tomuschat Jan 2011

The International Law Of State Immunity And Its Development By National Institutions, Christian Tomuschat

Vanderbilt Journal of Transnational Law

The proceedings between Germany and Italy currently pending before the International Court of Justice have revived interest in the legal regime of jurisdictional immunity of states. Germany charges Italy with violating the basic rule of state immunity by entertaining reparation claims brought before its civil courts by victims of serious breaches of international humanitarian law committed by Nazi Germany during World War II. Jurisdictional immunity is not absolute, but it remains preserved for truly governmental acts like military operations. None of the generally recognized exceptions apply in the German-Italian dispute. Damages resulting from international armed conflict are not covered by ...


Reconsidering Reprisals, Michael A. Newton Jan 2010

Reconsidering Reprisals, Michael A. Newton

Vanderbilt Law School Faculty Publications

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital bulwark against barbarity. In the words of the International Committee of the Red Cross, the prohibition is absolute, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of ...


Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship Jan 2010

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Vanderbilt Law Review

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as "help[ing] build a cooperative judicial federalism." This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware's recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal ...


Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton Jan 2009

Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the ...


Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie Jan 2009

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.


A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan Nov 2008

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

Vanderbilt Law Review

Section 1331, Title 28 of the United States Code is the general federal question jurisdictional statute, which grants federal district courts with original subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."' This statute grounds the majority of civil actions heard in federal court. Given the weighty doctrinal3 and pragmatic consequences that flow from determining whether a claim falls within the scope of § 1331, it is surprising to learn that we lack a coherent view of what statutory federal question jurisdiction entails. Professor Mishkin famously forwarded the classic theory that § 1331 ...


International Law's Mixed Heritage: A Common/Civil Law Jurisdiction, Colin B. Picker Jan 2008

International Law's Mixed Heritage: A Common/Civil Law Jurisdiction, Colin B. Picker

Vanderbilt Journal of Transnational Law

This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article ...


Deference And Democracy, Lisa Schultz Bressman Jan 2007

Deference And Democracy, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "Chevron, U.S.A. v. Natural Resources Defense Council, Inc.", the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores "Gonzales v. Oregon" as well as an earlier case, "FDA v. Brown & Williamson Tobacco Corp.", in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified ...


Jurisdictional Theory "Made In Japan": Convergence Of U.S. And Continental European Approaches, Akihiro Hironaka Jan 2004

Jurisdictional Theory "Made In Japan": Convergence Of U.S. And Continental European Approaches, Akihiro Hironaka

Vanderbilt Journal of Transnational Law

Recent Japanese cases concerning international jurisdiction illustrate a convergence of two distinct legal approaches to the treatment of jurisdictional issue--a rule-based, inflexible approach in Continental European countries and a standard-based, flexible approach in the United States. Japan's unique framework, as explained in this Article, might provide a useful perspective to solve the difficult question currently imposed on the Hague Conference: How is it possible to achieve comprehensive harmonization of the jurisdictional systems of the world?


The United States Dropped The Atomic Bomb Of Article 16 Of The Icc Statute, Mohamed E. Zeidy Jan 2002

The United States Dropped The Atomic Bomb Of Article 16 Of The Icc Statute, Mohamed E. Zeidy

Vanderbilt Journal of Transnational Law

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States--a major proponent of Resolution 1422--desires to immunize its leaders and soldiers from the International Criminal Court's jurisdictional powers. The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it ...


Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell Jan 2002

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.


Lawyer Ethics In The Twenty-First Century, Dr. Julian Lonbay Jan 2001

Lawyer Ethics In The Twenty-First Century, Dr. Julian Lonbay

Vanderbilt Journal of Transnational Law

This Article surveys multijurisdictional legal practice in the European Community. It details some of the types of lawyers and law practices that can be found across Europe and describes the variety of activities in which these lawyers engage. The Article then examines the regulatory regime that controls the legal industry. Specifically, it considers Article 49, Article 43, Directive 89/48/EEC, and Directive 98/5/EC. The Article concludes with a discussion of how conflicts in the regulation of lawyers may be resolved.


Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer Jan 2000

Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer

Vanderbilt Law Review

A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum ...


The Demise Of Hypothetical Jurisdiction In The Federal Courts, Scott C. Idleman Mar 1999

The Demise Of Hypothetical Jurisdiction In The Federal Courts, Scott C. Idleman

Vanderbilt Law Review

Recent years have witnessed a modest but expanding Supreme Court effort to return the national government to its structural first principles.' Foremost among these is that federal power, although vast, is neither inherent nor unbounded, but consists only of that granted by the Constitution. In 1998, the Court remained steadfast to this precept, thwarting yet another attempt by a federal branch to exceed its limited and enumerated constitutional powers. This time, however, the perpetrator was none other than the Article IH judiciary itself. In Steel Co. v. Citizens for a Better Environment, the Court formally denounced the federal court practice ...


Beyond "Marbury": Jurisdictional Self-Dealing In "Seminole Tribe", Laura S. Fitzgerald Mar 1999

Beyond "Marbury": Jurisdictional Self-Dealing In "Seminole Tribe", Laura S. Fitzgerald

Vanderbilt Law Review

In Seminole Tribe v. Florida, the Supreme Court held that the Constitution's Article III embodies a principle of state sovereign immunity which so constrains the federal judicial power that it prohibits Congress from granting federal courts subject matter jurisdiction over private lawsuits to enforce Article I legislation against states. At the same time, however, and again in Idaho v. Coeur d'Alene Tribe, the Court reaffirmed its own Ex parte Young doctrine, under which the Court itself unilaterally granted federal courts subject matter jurisdiction over private lawsuits to coerce states to comply with federal law despite state sovereign immunity ...


Extra-Statutory Discovery Requirements: Violating The Twin Purposes Of 28 U.S.C. Section 1782, Christopher W. Sanzone Jan 1996

Extra-Statutory Discovery Requirements: Violating The Twin Purposes Of 28 U.S.C. Section 1782, Christopher W. Sanzone

Vanderbilt Journal of Transnational Law

This Note analyzes Section 1782 of United States Code Chapter 28 and its role in the realm of international judicial assistance. The twin aims of Section 1782 are: (1) to provide efficient means of assistance to participants in foreign litigation, and (2) to encourage foreign countries by example to provide similar assistance to U.S. litigants in court. This Note posits that these goals are violated when a district court, considering a request for documents, imposes a threshold, extra-statutory requirement that the material requested be discoverable in the foreign jurisdiction where the litigation is pending.

After analyzing the legislative history ...


Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman Jan 1995

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for ...


Professor Lowenfeld Responds, Andreas F. Lowenfeld Jan 1995

Professor Lowenfeld Responds, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.

This brief response is addressed only to ...


Ashley V. Abbott Laboratories: Reconfiguring The Personal Jurisdiction Analysis In Mass Tort Litigation, Julia C. Bunting Jan 1994

Ashley V. Abbott Laboratories: Reconfiguring The Personal Jurisdiction Analysis In Mass Tort Litigation, Julia C. Bunting

Vanderbilt Law Review

The Supreme Court has struggled for over one hundred years to articulate a workable standard for determining whether a court may exercise personal jurisdiction, over a defendant without violating the Due Process Clause of the Fourteenth Amendment. Despite a substantial body of precedent, the Court has been unable to enunciate a consistent, intelligible test to govern personal jurisdiction. The Court's pronouncements swing between two bases: the territoriality, sovereignty, and power concerns established by Pennoyer v. Neff, and the defendant-centered fairness analysis announced in International Shoe Co. v. Washington. As a result of this inconsistency, lower courts adhere to vastly ...


Conflict Of Laws And Accuracy In The Allocation Of Government Responsibility, Joel P. Trachtman Jan 1994

Conflict Of Laws And Accuracy In The Allocation Of Government Responsibility, Joel P. Trachtman

Vanderbilt Journal of Transnational Law

The field of conflict of laws suffers from a lack of theoretical coherence, and therefore fails to provide a satisfactory basis for discourse, adjudication, legislation, and inter-governmental negotiation regarding issues of prescriptive scope. This Article advances a law and economics-based approach to conflict of laws for use in both the domestic and international context. The Article first assesses the theoretical coherence of some principal conflict of laws approaches, analyzing their resolution of four tensions: predictability and adminstrability versus accuracy, unilateralism versus multilateralism, private interest versus public interests, and courts versus legislatures. It refers to Professor Baxter's "comparative impairment" methodology ...