Law Commons^™

To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.

This Article contends that the current approach to democratization is …

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …

Brief Of Amici Curiae Law Professors & Indian Law Experts In Support Of Petition For A Writ Of Certiorari, Smith V. United States, Barbara L. Creel, Verónica Gonzales-Zamora, Marc-Tizoc Gonzaléz

Faculty Scholarship

The decision reached by the United States Court of Appeals for the Ninth Circuit, permitting the application of state criminal law to punish a tribal member whose alleged criminal conduct occurred on an Indian reservation and caused no harm to another person—solely based on the Assimilative Crimes Act (ACA), 18 U.S.C. § 13 is contrary to numerous treaties, acts of Congress, and foundational principles
of tribal sovereignty as construed and upheld by this Court’s federal Indian law jurisprudence. Allowing the Ninth Circuit decision to stand renders express
congressional authorizations and limitations on federal and state criminal jurisdiction over Indians in …

When Judges Were Enjoined: Text And Tradition In The Federal Review Of State Judicial Action, Alexandra Nickerson, Kellen R. Funk

Faculty Scholarship

It is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime. In such cases, injunctive relief against judicial officers may be the only or most effective remedy against constitutional violations, but federal courts from the trial level up to …

Running On Empty: Ford V. Montana And The Folly Of Minimum Contacts, James P. George

Faculty Scholarship

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability …

Jurisdictional Elements And The Jury, G. Alexander Nunn

Faculty Scholarship

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, …

The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, Robin Effron, John F. Coyle

Faculty Scholarship

No abstract provided.

Automating Fairness? Artificial Intelligence In The Chinese Court, Rachel E. Stern, Benjamin L. Liebman, Margaret Roberts, Alice Z. Wang

Faculty Scholarship

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Facilitating Money Judgment Enforcement Between Canada And The United States, Paul George

Faculty Scholarship

The United States has attempted for years to create a more efficient enforcement regime for foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019, when the Hague Conference on Private International Law (with U.S. participants, including the Uniform Law Commission) promulgated the new Hague Judgments Convention which harmonizes judgment recognition standards but leaves the domestication process to the enforcing jurisdiction. In August 2019, the Uniform Law Commission took a significant step to fill that gap, though limited to Canadian judgments. The Uniform Registration of Canadian Money Judgments Act provides a registration process similar to that for …

Argument Analysis: On First Day Of New Term, Supreme Court Seems Skeptical Of Texas’ Arguments In Interstate Water Dispute With New Mexico, Reed D. Benson

Faculty Scholarship

Find out more information regarding Texas v. New Mexico at SCOTUSblog.

Read more about Professor Reed Benson's involvement on the UNM Law News Page.

Case Preview: In Newest Chapter In Long-Running Water Dispute, Court Will Hear First-Ever Challenge To Ruling By Interstate River Master, Reed D. Benson

Faculty Scholarship

Find out more information regarding Texas v. New Mexico at SCOTUSblog.

Read more about Professor Reed Benson's involvement on the UNM Law News Page.

Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates potential mischief. And …

Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar

Faculty Scholarship

A key question at the intersection of state and federal law is whether corporations can use their charters or bylaws to restrict securities litigation to federal court. In December 2018, the Delaware Chancery Court answered this question in the negative in the landmark decision Sciabacucchi v. Salzberg. The court invalidated “federal forum provisions” (“FFPs”) that allow companies to select federal district courts as the exclusive venue for claims brought under the Securities Act of 1933 (“1933 Act”). The decision held that the internal affairs doctrine, which is the bedrock of U.S. corporate law, does not permit charter and bylaw provisions …

"Spain For The Spaniards": An Examination Of The Plunder & Polemic Restitution Of The Salamanca Papers, Emily T. Behzadi

Faculty Scholarship

Throughout the Spanish Civil War, General Francisco Franco assembled numerous task forces to seize thousands of documents, photographs, prints, and artworks from private citizens and institutions that were politically adverse to his totalitarian regime. The majority of these so-called “Salamanca Papers” were taken from Catalonia, an autonomous community with a particularly contentious history with the Spanish government. Under existing principles of Spanish and international law, it is difficult to determine whether the Spanish State or Catalonia are the bona fide owners of this historical archive. The case over the ownership of the Salamanca Papers is one rarely discussed outside of …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic …

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Faculty Scholarship

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

Rising Confusion About 'Arising Under' Jurisdiction In Patent Cases, Paul Gugliuzza

Faculty Scholarship

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young

Faculty Scholarship

No abstract provided.

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

The Sources Of Immunity Law – Between International And Domestic Law, Lori Fisler Damrosch

Faculty Scholarship

The immunities regimes covered by this volume presuppose the existence of juridically equal States whose interactions are governed by international law. States engage in international relations with each other through a variety of agents, who could be individuals or legal persons; and States likewise establish international organizations for carrying out shared purposes. Each State has a domestic legal system through which State actors generate various sorts of executive, judicial and legislative practice, all of which can in principle be evidence of the international law of immunities.

The several regimes relevant to the immunities of the State itself, and of international …

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Faculty Scholarship

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, such as enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland v. Kraft Foods illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically measure …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.