Law Commons^™

Minding The Empagran Gap, Maggie Gardner

Cornell Law Faculty Publications

No abstract provided.

Abstention At The Border, Maggie Gardner

Cornell Law Faculty Publications

The lower federal courts have been invoking “international comity abstention” to solve a range of problems in cross-border cases, using a wide array of tests that vary not just across the circuits, but within them as well. That confusion will only grow, as both scholars and the Supreme Court have yet to clarify what exactly “international comity abstention” entails. Meanwhile, the breadth of “international comity abstention” stands in tension with the Supreme Court’s recent reemphasis on the federal judiciary’s obligation to exercise congressionally granted jurisdiction. Indeed, loose applications of “international comity abstention” risk undermining not only the expressed preferences of …

Congressional Power To Strip State Courts Of Jurisdiction, Michael C. Dorf

Cornell Law Faculty Publications

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal …

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are …

Retiring Forum Non Conveniens, Maggie Gardner

Cornell Law Faculty Publications

When it comes to transnational litigation in the federal courts, it is time to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to promote international comity and protect defendant fairness. But it is not well-designed for the former purpose, and given recent developments at the Supreme Court, it is dangerously redundant when it comes to the latter. This Article seeks to demythologize forum non conveniens, to question its continuing relevance, and to encourage the courts and Congress to narrow its …

Rjr Nabisco And The Runaway Canon, Maggie Gardner

Cornell Law Faculty Publications

In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed an opportunity to …

Data Institutionalism: A Reply To Andrew Woods, Zachary D. Clopton

Cornell Law Faculty Publications

In "Against Data Exceptionalism," Andrew K. Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests, the legal challenges presented by the cloud have analogies in age-old puzzles of public and private international law.

Identifying these connections is a conceptual advance, and this contribution should not be understated. But, to my mind, the most telling statement in Woods’s excellent article comes …

Governing Law On Forum-Selection Agreements, Kevin M. Clermont

Cornell Law Faculty Publications

The task of determining which law governs a contractual choice-of-forum clause is an enigma to courts. The key to its solution lies at the very heart of the subject, where one encounters its most celebrated riddle: Which law governs when the parties have also agreed to a choice-of-law clause-that is, does a court first test the forum-selection clause under the law of the seised forum, or does one first look at the parties' choice of law to apply the chosen law to the forum-selection clause?

This chicken-or-egg mystery throws courts into contortions. Prior commentators have opted for the chosen law. …

Kiobel And The Law Of Nations, Zachary D. Clopton

Cornell Law Faculty Publications

Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court justices addressed not the substance of ATS cases but the reach of that statute.

At least at the time of the Judiciary Act of 1789, the law of nations included not only …

Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton

Cornell Law Faculty Publications

The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest …

Extraterritoriality And Extranationality: A Comparative Study, Zachary D. Clopton

Cornell Law Faculty Publications

International lawyers are familiar with the concept of extraterritoriality the application of one country's laws to persons, conduct, or relationships outside of that country. Yet the transborder application of law is not limited to international cases. In many states, the presence of indigenous peoples, often within defined borders, creates an analogous puzzle. This Article begins a comparative study of foreign- and native-affairs law by examining the application of domestic laws to foreign facts ("extraterritoriality") and to indigenous peoples, often called "nations" ("extranationality"). Using a distinctive double-comparative perspective, this Article analyzes extraterritoriality and extranationality across three countries: the United States, Canada, …

Piracy Prosecutions In National Courts, Maggie Gardner

Cornell Law Faculty Publications

At least for the time being, the international community must rely on national courts to prosecute modern-day pirates. The first wave of domestic piracy prosecutions suggests, however, that domestic courts have yet to achieve the necessary consistency and expertise in resolving key questions of international law in these cases. This article evaluates how courts trying modern-day pirates have addressed common questions of international law regarding the exercise of universal jurisdiction, the elements of the crime of piracy, and the principle of nullum crimen sine lege. In doing so, it evaluates five decisions issued in 2010 by courts in Kenya, the …

Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …

Sealand, Havenco, And The Rule Of Law, James Grimmelmann

Cornell Law Faculty Publications

In 2000, a group of American entrepreneurs moved to a former World War II anti-aircraft platform in the North Sea, seven miles off the British coast, and launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo's founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a "data haven" for unpopular speech, safely beyond the reach of any other …

The Repressible Myth Of Shady Grove, Kevin M. Clermont

Cornell Law Faculty Publications

This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule's coverage, …

Israel's Supreme Court Appellate Jurisdiction: An Empirical Study, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

This Essay reports the results of an empirical study of the Israel Supreme Court (ISC). It covers the outcomes of 3,562 cases (as of this writing), all decided in 2006 and 2007, and describes the cases by subject area, litigant-pair characteristics, and source of jurisdiction - mandatory or discretionary. In mandatory-jurisdiction cases ending with clear affirmances or reversals, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and about 67% of district court civil case appeals. In discretionary- jurisdiction cases, the ISC rarely granted review. It agreed to review about 6 % of petitions …

Bowman Lives: The Extraterritorial Application Of U.S. Criminal Law After Morrison V. National Australia Bank, Zachary D. Clopton

Cornell Law Faculty Publications

No abstract provided.

The Market For Contracts, Geoffrey P. Miller, Theodore Eisenberg

Cornell Law Faculty Publications

Recent empirical work has established that New York supplies the law and forum in nearly half the material commercial contracts of public firms. In this respect New York plays a role for commercial contracts analogous to the role played by Delaware with respect to corporate charters. Is the revealed preference for New York law and forum merely the result of choices made by the contracting parties, or does New York actively compete for this business? This paper describes ways in which New York seeks to attract and retain corporate contracts in competition with other potential providers of law and forum. …

The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Complete Preemption And The Separation Of Powers, Trevor W. Morrison

Cornell Law Faculty Publications

This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which …

Jurisdictional Fact, Kevin M. Clermont

Cornell Law Faculty Publications

What kind of factual showing must the plaintiff make in order to establish, say, personal jurisdiction? While that question may seem simple enough, real difficulties in regard to the standard of proof arise when there is a similarity of the facts entailed in the jurisdictional determination and those on the merits. Surely, the plaintiff has to do more than allege that the defendant is the author of state-directed acts or omissions. Yet, almost as surely, the plaintiff should not have to prove the cause of action in order to establish jurisdiction. The plaintiff thus must have to show something between …

Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …

Overlooked In The Tort Reform Debate: The Growth Of Erroneous Removal, Theodore Eisenberg, Trevor W. Morrison

Cornell Law Faculty Publications

Disputes over forum often center on whether a case should proceed in state or federal court. Removal to federal court can trigger a costly forum struggle. When a state case is removed to federal court only to be sent back to state court, the time and resources incurred in the detour are a toll on the judicial system and waste parties’ resources. We find erroneous removal to be an increasing problem. From 1993 to 2002, a period when state tort filings noticeably decreased, the number of removed diversity tort cases increased by about 10 percent to about 8,900 per year. …

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 …

Who Decides The Arbitrators' Jurisdiction? Separability And Competence-Competence In Transnational Perspective, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.

Jurisdictional Salvation And The Hague Treaty, Kevin M. Clermont

Cornell Law Faculty Publications

The United States' law of territorial jurisdiction in civil cases is a mess. Many commentators, here and abroad, have said so for a long time. The United States' treatment of foreign judgments, however, stands in contrast. As a well-behaved member of the international community of nations, the United States eagerly gives appropriate respect to foreign judgments, despite sometimes getting no respect in return.

Now, ongoing negotiations at the Hague have generated a prospect for an international agreement on the reciprocal treatment of foreign judgments. The envisaged treaty would ensure mutual respect of judgments among contracting countries, but it would also …

Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

General Observations on Interpreting Win-Rate Data Properly. Many empirical legal studies use data on plaintiffs' rate of success, because of those data's ready availability and apparent import. Yet these "win rates" are probably the slipperiest of all judicial data. Win rates are inherently ambiguous because of the case-selection effect. The litigants' selection of the cases brought produces a biased sample from the mass of underlying disputes. The settlement process, usually conducted by rational and knowledgeable persons who take into account and thereby neutralize the very factor that one would like to study, produces a residue of litigated cases for which …

Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …