Law Commons^™

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

A Global Law Of Jurisdiction And Judgments: Views From The United States And Japan, Kevin M. Clermont

Cornell Law Faculty Publications

Japanese and U.S. legal systems, despite surprisingly similar doctrine and outlook on matters of jurisdiction and judgments, often clash: jurisdictions overlap and judgments may go unrespected, while parallel proceedings persist. The current outlook for harmonization through a multilateral Hague convention of general scope is bleak. These two countries are, however, ideally situated to reach a highly feasible bilateral agreement that would provide a better tomorrow in which jurisdiction was allocated appropriately and judgments were respected accordingly.

The Role Of Private International Law In The United States: Beating The Not-Quite-Dead Horse Of Jurisdiction, Kevin M. Clermont

Cornell Law Faculty Publications

Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. …

French Article 14 Jurisdiction, Viewed From The United States, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

French courts have broadly read their Civil Code’s oddly written Article 14 as authorizing territorial jurisdiction over virtually any action brought by a plaintiff of French nationality. This study traces the history of this provision from its genesis two hundred years ago to its extension under the current Brussels Regulation.

Nevertheless, for a number of reasons, French plaintiffs do not use Article 14 all that much, other than in status suits such as matrimonial matters or in situations where the defendant has assets in France (or now, under the Brussels regime, in Europe). The actual use of Article 14 ends …

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

The Securities And Exchange Commission Goes Abroad To Regulate Corporate Governance, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Compagnie Noga D'Importation V. Russian Federation, 361 F. 3d 676 - Court Of Appeals, 2nd Circuit 2004, Roger J. Miner '56

Circuit Court Opinions

In these consolidated appeals, we are confronted with the issue of whether a foreign arbitration award can be confirmed and enforced against a sovereign nation where the arbitration agreement was signed by an organ of that nation's central government and where that organ — and not the nation itself — participated in the underlying arbitration proceedings. Specifically, plaintiff-appellant Compagnie Noga D'Importation et D'Exportation S.A. ("Noga") sought to confirm and enforce a Swedish arbitration award against defendant-appellee Russian Federation. The 678*678 Russian Federation opposed confirmation principally on the ground that it was a party to neither the arbitration agreement nor …

Brief Amici Curiae Of Legal Historians Listed Herein In Support Of The Petitioners, Rasul V. Bush, Nos. 03-334 & 03-343 (U.S. Jan. 14, 2004), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Universal Jurisdiction: Steps Forward, Steps Back, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Tribal Immunity And Tribal Courts, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Whose Justice - Reconciling Universal Juristidiction With Democratic Principles, Diane Orentlicher

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Stolen Art And Sovereign Immunity: The Case Of Altmann V. Austria, Michael D. Murray

Law Faculty Scholarly Articles

Part I of this Article will briefly recount the principal facts of Altmann v. Republic ofAustria. Parts II through IV will then address the principal arguments that Austria has raised against the application of the Foreign Sovereign Immunities Act, namely: 1. That the FSIA would have an impermissible retroactive effect if it were to be applied to Altmann's claims arising from operative facts that occurred before both the effective date of the FSIA and the 1952 Tate Letter; 2. That the conduct of the Nazi regime and its agencies and instrumentalities in World War II, including Austria, in no way …

Jurisdiction Under The Foreign Sovereign Immunities Act For Nazi War Crimes Of Plunder And Expropriation, Michael D. Murray

Law Faculty Scholarly Articles

This article addresses each of these issues regarding the application of jurisdiction under the FSIA to World War II and other pre-1952 war crimes, including claims involving expropriation and plunder of personal property, and concludes that none of these issues prevents the exercise of jurisdiction under the FSIA for resolution of these claims in United States courts. Part II discusses the history of the doctrine of sovereign immunity in the United States prior to the enactment of the FSIA, with particular reference to the development of the restrictive theory of sovereign immunity. Part III discusses the structure and purpose of …

Brief Of Professors Of Federal Jurisdiction And Legal History As Amici Curiae In Support Of Respondents, William S. Dodge

Faculty Scholarship

No abstract provided.

Reparations Decisions And Dilemmas, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

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)?

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

Petitioner's Brief, Richard B. Collins

Publications

No abstract provided.

A Narrative Of Sovereignty: Illluminating The Paradox Of The Domestic Dependent Nation, Sarah Krakoff

Publications

For the last thirty years the Supreme Court has been adjusting the boundaries of American Indian tribal sovereignty. Some cases affirm tribal inherent powers, but recently the trend has been to limit those powers. Yet neither the Court nor the Congress, which can reverse Supreme Court decisions on questions of tribal sovereignty, has been informed about how these alterations to tribal powers actually affect American Indian tribes on the ground. This article provides that information by examining the interplay between Supreme Court decisions and the Navajo Nation's exercise of its sovereign governmental powers from 1970-2003. In the categories of general …

Jurisdictional Conflict In Global Antitrust Enforcement, Hannah Buxbaum

Articles by Maurer Faculty

No abstract provided.

Aedpa's 'Adjudication On The Merits' Requirement: Collateral Review, Federalism, And Comity, Robert D. Sloane

Faculty Scholarship

The modern law of federal habeas corpus is a labyrinth of counterfactuals and arcane procedural hurdles that few state petitioners manage to navigate-as Justice Blackmun once wrote less charitably in dissent, "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights." The convoluted inquiries required arise from the need to reconcile three developments of the past four decades that remain in tension with one another: first, the Warren Court's expansion of federal habeas relief, identified with Fay v. Noia and its progeny; second, the Burger and Rehnquist Courts' curtailment of that expansion, identified with Wainwright …

Doing Right By Charles Alan Wright, Carl W. Tobias

Law Faculty Publications

Review of Charles Alan Wright & Mary Kay Kane, Law of Federal Courts (6th ed. 2002)

A Global Convention On Choice Of Court Agreements, Ronald A. Brand

Articles

This article reviews the work of the Special Commission of the Hague Conference on Private International Law, which meet during the first nine days of December 2003 to consider a Draft Text on Choice of Court Agreements. Negotiations originally sought a rather comprehensive convention on jurisdiction and the recognition and enforcement of judgments, with a preliminary draft convention being prepared in October 1999, and further revised at the first part of a Diplomatic Conference in June 2001. When it became clear that some countries, particularly the United States, could not agree to the convention being considered, negotiations were redirected at …

Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley

Scholarly Works

To cope more effectively with the changed landscape of child exploitation, it is necessary for laws to expand their extraterritorial reach. Some statutes in the “child exploitation arena” have already been ruled to apply extraterritorially. The prime example of this is 18 U.S.C. § 2252 (2004) (certain activities relating to the material involving the sexual exploitation of minors). Two of the more useful statutes in combating online pedophiles are 18 U.S.C. § 1470 (2003) (transfer of obscene materials to minors) and 18 U.S.C. § 2422 (2003) (coercion and enticement). These latter statutes, however, have yet to receive significant or …

International Tax Law As International Law, Reuven S. Avi-Yonah

Articles

Is international tax law part of international law? To an international lawyer, the question posed probably seems ridiculous. Of course international tax law is part of international law, just like tax treaties are treaties. But to an international tax lawyer, the question probably seems less obvious, because most international tax lawyers do not think of themselves primarily as international lawyers (public or private), but rather as tax lawyers who happen to deal with crossborder transactions. And indeed, once one delves into the details, it becomes clear that in some ways international tax law is different from "regular" international law. For …

Minimum Contacts, No Dog: Evaluating Personal Jurisdiction For Nonparty Discovery, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.