Law Commons^™

Two Countries In Crisis: Man Camps And The Nightmare Of Non-Indigenous Criminal Jurisdiction In The United States And Canada, Justin E. Brooks

Vanderbilt Journal of Transnational Law

Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Preventing Foreign-Judgment Country Hopping With A New Transnational Recognition And Enforcement Standard, Ryan Everette

Vanderbilt Journal of Transnational Law

Since the 1990s, a group of plaintiffs from Ecuador has been involved in litigation with what is presently the Chevron Corporation. During the lawsuit in Ecuador’s courts, the plaintiffs’ lawyers took part in deceptive activities that led to an unreliable judgment against Chevron and has resulted in civil liability for the lawyers and an inability to enforce the judgment against Chevron in the United States for the plaintiff class. Over the better part of the last decade, the plaintiffs’ lawyers have sought and failed to enforce the judgment in several countries outside of the United States, leading to a prolonging …

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

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 receiving …

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 not …

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

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

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 a …

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 the …

Strange Bedfellows, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

With the maximum rate of federal income tax at 39.6 percent, the Medicare surtax on investment income of 3.8 percent, and some state income tax rates exceeding 9 percent, taxpayers in the highest brackets have been seeking to develop strategies to lessen the tax burden. One strategy that has been receiving increased attention is the use of a highly specialized trust known as the NING, a Nevada incomplete gift nongrantor trust, which eliminates state income taxation of investment income altogether without generating additional federal income or transfer taxes. A major obstacle standing in the way of accomplishing this objective, however, …

Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law …

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

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 with …

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 …

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 holdings: …

Assessing The State Of State Constitutionalism, Jim Rossi

Vanderbilt Law School Faculty Publications

State constitutions are terribly important legal documents, but their interpretation is remarkably understudied (and, of course, highly undertheorized) in the academic literature. This review essay discusses Robert Williams’s welcome new book, The Law of American State Constitutions (Oxford University Press, 2009). After summarizing the content of Williams’s book, it discusses the normative significance of his work, focusing especially on his discussion of independent state constitutions and the positive theory of interpretation he advances. The essay concludes by highlighting some areas where the field of state constitutional law is in need of further advancement, including research that positions state constitutions within …

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 agencies to …

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 …

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.

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 framework …

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 …

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

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 its …

The Puzzle Of State Constitutions, Jim Rossi

Vanderbilt Law School Faculty Publications

In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System, steps beyond his study of specific issues in state constitutionalism to lay out an ambitious theory about how state constitutions should be interpreted based on their function within a federal system. Gardner's book is a significant scholarly effort to take state constitutions seriously, in a way that transcends any one jurisdiction or constitutional provision. Gardner's …

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?

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.

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 violates …

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

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. …