Law Commons^™

The Court And The Private Plaintiff, Elizabeth Beske

Articles in Law Reviews & Other Academic Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …

Brief Of Amicus Curiae Professor Susan Carle In Support Of The Plaintiffs Arguing For Affirmance In Johnson And Tinker V. City Of Boston, Ma, Susan Carle

Amicus Briefs

This brief is being submitted by a law professor, Susan D. Carle, with more than 30 years of expertise in federal employment and antidiscrimination law, and especially the history and purposes of disparate impact law. She submits this brief to share her expertise with this Court. She is currently Professor of Law and Vice Dean of American University Washington College of Law (organizational affiliation is offered for identification purposes only).

Solving The Emerging Technology And National Security Conundrum, Shabbir Hamid

Upper Level Writing Requirement Research Papers

No abstract provided.

The Friendly Skies Are Not Always So Friendly, Rachel Reid

Upper Level Writing Requirement Research Papers

No abstract provided.

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Political Question Disconnects, Elizabeth Earle Beske

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Borders And Bits, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Court Capture, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Un-Territoriality Of Data, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

Hitting A Home Run In Your Writing, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Foreign Investments And The Market For Law, Susan Franck

Articles in Law Reviews & Other Academic Journals

In this Article, Professors O'Hara O'Connor and Franck adapt and extend Larry Ribstein's positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policy-making discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Patent Dialogue, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.

Appreciating the unique nature of patent dialogue has important …

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

Significance Of The Fujimori Trial, Juan E. Mendez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Assessing The Impact Of Federal Law On Public Health Preparedness, Lindsay Wiley, Ben Berkman, Susan C. Kim

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Problem Of Jurisdictional Non-Precedent, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

Most critiques of the Supreme Court's June 2008 decision in Boumediene v. Bush (including Justice Scalia's dissent in the same) have at their core the argument that Justice Kennedy's majority opinion is inconsistent with prior precedent, specifically the Supreme Court's 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal …

Brief Of Law Professors As Amici Curiae In Support Of Respondents, Summers V. Earthisland Inst., No. 07-463 (U.S. June 27, 2008), Amanda Leiter

Amicus Briefs

No abstract provided.

Contract Regulation, With And Without The State: Ruminations On Rules And Their Sources, David Snyder

Articles in Law Reviews & Other Academic Journals

This paper, commenting on the work of Jýrgen Basedow, addresses the legal regulation of economic relations in the context of globalization. The paper applies the idea of the mixed jurisdiction, traditionally focused on legal systems that partake of both the common law and the civil law, to the complex of privately made law and publicly made law that governs contemporary economic relations. Differing criteria that might be used to assess and choose between competing rules or competing systems of rule generation are evaluated, and normative considerations are raised. The paper proposes a model to demonstrate how privately made law, though …

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Catching Up With The Past: Recent Decisions Of The Inter-American Court Of Human Rights Addressing Gross Human Rights Violations Perpetrated During The 1970-1980s, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Deconstructing Hirota: Habeas Corpus, Citizenship, And Article Iii, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the “war on terrorism” has been a popular topic for courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In a series of recent cases, the US government has invoked the Supreme Court’s obscure (and obtuse) 1948 decision in Hirota v. MacArthur (338 US 197) for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the “Multinational …

The Role Of International Arbitrators, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes.' Arbitration has taken on such prominence in the international context that commentators express "little doubt that arbitration is now the first-choice method of binding dispute resolution" and has "largely taken over litigation."'

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Keep Your Hands Off My (Dead) Body: A Critique Of The Ways In Which The State Disrupts The Personhood Interests Of The Deceased And His Or Her Kin In Disposing Of The Dead And Assigning Identity In Death, Mary Clark

Articles in Law Reviews & Other Academic Journals

No abstract provided.