Law Commons^™

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

Personal Jurisdiction And The Fairness Factor(S), Megan La Belle

Scholarly Articles

It has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington, yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Roberts Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court, a case decided in 2021 that addressed an issue related to specific jurisdiction. What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation’s registration to do business constitutes consent to personal jurisdiction in that state. This …

Statutory Jurisdiction And Constitutional Orthodoxy In Mcculloch, Cohens, And Osborn, Kevin C. Walsh

Scholarly Articles

This essay examines the underappreciated element of statutory jurisdiction in McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United States. One objective is to identify more precisely the Marshall Court’s jurisdictional innovations in these three foundational decisions. A close look at the question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn reveals a kind of constitutional magnetism at work. In constitutional avoidance, a court adopts an interpretation in order to stay away from a constitutional problem. In contrast, the Marshall Court in Cohens and Osborn expanded the jurisdictional statutes at issue in order …

The Case Against Federalizing Trade Secrecy, Christopher B. Seaman

Scholarly Articles

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing …

Brief Of Thirty-Four Law Professors As Amici Curiae In Support Of Appellants: Altera Corp. V. Papst Licensing Gmbh, Christopher B. Seaman

Scholarly Articles

The amici curiae are law professors who teach and write on civil procedure and/or patent law and policy. As such, amici are interested in the effective functioning of the courts and the patent system in general. Amici believe that this Court’s rigid rule restricting personal jurisdiction in patent declaratory judgment actions both flouts Supreme Court precedent and frustrates the public policy of clearing invalid patents. Although amici hold different views on other aspects of modern patent law and policy, they are united in their professional opinion that this Court should overturn its inflexible jurisdictional rule.

Personal Jurisdiction And The "Interwebs", Alan M. Trammell, Derek E. Bambauer

Scholarly Articles

For nearly twenty years, lower courts and scholars have struggled to figure out how personal jurisdiction doctrine should apply in the Internet age. When does virtual conduct make someone amenable to jurisdiction in any particular forum? The classic but largely discredited response by courts has been to give primary consideration to a commercial Web site’s interactivity. That approach distorts the current doctrine and is divorced from coherent jurisdictional principles. Moreover, scholars have not yielded satisfying answers. They typically have argued either that the Internet is thoroughly exceptional and requires its own rules, or that it is largely unexceptional and can …

A Tale Of Two Jurisdictions, Alan M. Trammell

Scholarly Articles

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 …

Isolating Litigants: A Response To Pamela Bookman, Alan M. Trammell

Scholarly Articles

In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation. And it makes …

Jurisdictional Sequencing, Alan M. Trammell

Scholarly Articles

Jurisdictional sequencing taps into fundamental questions about the nature and role of subject matter jurisdiction and what, if anything, a court may do before it has established jurisdiction. Because the Supreme Court has not rooted the doctrine in a clear theory, jurisdictional sequencing has engendered confusion among judges and scholars, who have been at a loss to explain it. Although a number of courts have embraced the leeway that the doctrine offers—the ability to dismiss a case on easier grounds before taking up harder jurisdictional questions—most scholars have criticized it as illegitimate or incoherent. This Article is the first to …

Or A Treaty Of The United States: Treaties And The Alien Tort Statute After Kiobel, Geoffrey R. Watson

Scholarly Articles

The decision in Kiobel v. Royal Dutch Petroleum Co. left open a number of questions about the scope of the Alien Tort Statute (ATS). One such question is the extent to which Kiobel ’s holding on extraterritoriality applies to the oft-neglected final words of the ATS: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” What if one such treaty obliged the United States to provide a civil forum for litigation ofhumanrights violations that occurred abroad …

The Future Of Internet-Related Personal Jurisdiction After Goodyear Dunlap Tires V. Brown And J. Mcintyre V. Nicastro, Megan M. La Belle

Scholarly Articles

For the past two decades, courts have struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. Some courts have utilized the traditional minimum contacts framework of International Shoe v. Washington , while others have devised new tests to accommodate this technological evolution. So when the US Supreme Court granted certiorari in two personal jurisdiction cases last term— Goodyear Dunlap Tires v. Brown and J. McIntyre v. Nicastro — many believed these unsettled questions of Internet related personal jurisdiction would finally be resolved. Disappointingly for litigants, lower courts, and academics, however, Goodyear and McIntyre …

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart …

Virtual Contacts In Patent Cases: How Should Internet-Related Contacts Affect The Personal Jurisdiction Analysis?, Megan M. La Belle

Scholarly Articles

In the 1990s, when the Internet was still considered novel, courts struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. So when Zippo Manufacturing v. Zippo DOT Com established an apparently easy-to-apply test for deciding whether a defendant’s virtual contacts are sufficient for personal jurisdiction, many courts embraced it . To date, however, the Federal Circuit has neither adopted nor rejected the Zippo approach, leaving litigants and lower courts in patent cases with little guidance on the issue. Although a recent decision suggests that the Federal Circuit recognizes the limitations of Zippo, it …

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Scholarly Articles

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states. This limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …

The Push To Criminalize Aggression: Something Lost Amid The Gains?, Mark A. Drumbl

Scholarly Articles

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Work- ing Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve inter- state armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the …

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Scholarly Articles

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray.A s a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Scholarly Articles

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches - which emphasize a website's "interactivity" and "target audience" - are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This Article argues that courts …

May A Foreign Plaintiff Sue A Foreign Defendant For Conduct Outside The U.S. That Caused Antitrust Injury Outside The U.S.?, Antonio F. Perez

Scholarly Articles

May the respondents, five foreign companies that purchased goods outside the United States from other foreign companies, pursue Sherman Act claims seeking recovery for overcharges paid in transactions occurring entirely outside U.S. commerce under the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. § 6a? Do such foreign plaintiffs lack standing under Section 4 of the Clayton Act, 15 U.S.C. § 15(a)?