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The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

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So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

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The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

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The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

Native Youth & Juvenile Injustice In South Dakota, Addie C. Rolnick

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In this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can …

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

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Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …

The Territoriality Referendum, Marketa Trimble

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Many Internet users have encountered geoblocking tools – tools that prevent users from accessing certain content on the Internet based on the location from which the users are connecting to the Internet. Because at least some users want to access such content, they turn to tools that enable them to evade geoblocking, to appear on the Internet as if they were located in another location, and to access the content that is available in this other location. So far these activities appear to be under the radar of intellectual property (“IP”) owners, perhaps because geoblocking evasion by users for the …

Shady Grove And The Potential Democracy-Enhancing Benefits Of Erie Formalism, Jeffrey W. Stempel

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No abstract provided.

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

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The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

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The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

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The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

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Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

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

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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 …

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

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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 …

Ruminations On Terrorism & Anti-Terrorism In Law And Literature, Christopher L. Blakesley

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Discussing terrorism in light of the September 11 atrocities is daunting. It requires one to wonder how to maintain an equilibrium in the face of a menace that wishes its own death as long as it flows from the slaughter of ‘the enemy.‘ How is it possible to combat this menace without falling into a trap of hatred or blind fear that leads to the use of terror to fight terrorism? The overarching issues relating to September 11, terrorism, and counter-terrorism include: whether oppression can provide any justification for that atrocity; similarly, whether that attack calls for or allows self-defense …

The Autumn Of The Patriarch: The Pinochet Extradition Debacle And Beyond- Human Rights Clauses Compared To Traditional Derivative Protections Such As Double Criminality, Christopher L. Blakesley

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This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, …

Association Of American Law Schools Panel On The International Criminal Court, Christopher L. Blakesley

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Professor Blakesley participates in this panel discussion on the International Criminal Court. The Association of American Law Schools sponsored the panel.

Comparativist Ruminations From The Bayou On Child Custody Jurisdiction: The Uccja, The Pkpa, And The Hague Convention On Child Abduction, Christopher L. Blakesley

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Interstate and international jurisdictional problems are often vexing. They are worse in matters of child custody. In the past, jurisdiction to obtain custody or to modify a custody decree required only presence or domicile. The United States population is transient and custody decisions are subject to modification. The volatility of child custody disputes and the tendency of parents to move to different and separate jurisdictions traditionally caused and continue to cause difficult problems for children, parents, and the legal system. Before the promulgation of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), it was …

La Preuve Pénale Et Des Tests Génétiques: United States Report, Christopher L. Blakesley

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A major problem for those analyzing U.S. criminal law and procedure is that it does not fit the Continental or British mold. There is no one single system, but parallel federal and 50 state systems each with its own legislature, laws, courts (including trial, appellate, and supreme courts), police, prosecutors and prisons. The authorities who enact and implement these laws are sovereign within their respective jurisdictions. Each state has police power over its people. The 10th amendment to the U.S. Constitution controls allocation of federal and state authority. It provides that whatever the Constitution has not designated as being within …

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

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Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

Who's Afraid Of Henry Hart?, Michael Wells

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No law book has enjoyed greater acclaim from distinguished commentators over a sustained period than has Hart & Wechsler's The Federal Courts and the Federal System. Indeed, the praise seems to escalate from one edition to the next. Reviewing the first edition, published forty-three years ago, Philip Kurland called it "the definitive text on the subject of federal jurisdiction." Paul Mishkin added that "the analysis is of an order difficult to match anywhere." In his review of the second edition, published in 1973, Henry Monaghan began by praising the first for having "deservedly achieved a reputation that is extraordinary among …

Jurisdiction, Definition Of Crimes, And Triggering Mechanisms, Christopher L. Blakesley

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The opportunity to create an international court that provides fair, equitable, and efficient justice is rare and important. It requires expertise in comparative and international law. Problems are serious, however. Failure to address the formidable problems could cause the Court to run a risk of failure that could be disastrous for international law, for the victims of the horrors that have occurred and that will occur, and for the world. Failure could come in at least two forms: (1) the Court could merely be a conduit for retribution after a pro-forma kangaroo court or (2) it will not have sufficient …

Original Intent And Article Iii, Michael L. Wells, Edward J. Larson

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Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts law is …

Two Cheers For Specialization, Jeffrey W. Stempel

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Professor Dreyfuss adopts what might be termed the more conservative and deferential view of the efficacy of Delaware corporate law in her paper and her presentation. This approach generally views the market as making a statement with which one should not lightly quarrel. Because Delaware continues to attract incorporations, this view posits that the state's attraction is the superiority of its corporate law compared to other states, which lack a semi-specialized Chancery Court. Consequently, in a race to the top of corporate standards, legal rules and adjudications, Delaware's success in the market suggests that Delaware's legal product is good.

Other …

Democratic Responses To International Terrorism, Christopher L. Blakesley

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This volume provides a multidisciplinary study of terrorism. The editor notes at the outset the difficulty of definition: "Terrorism is not a one-dimensional problem; it transcends many frontiers: political, jurisdictional, institutional, disciplinary and methodological. So approaching the problem from only one perspective may lead to only partial understanding and an incomplete strategy for developing constructive responses” (p. 3). Note the tendency of even this careful statement to assume that terrorism is always committed by others, Also, although legal definition and consideration may be implied by the terms polical, jurisdictional, institutional and disciplinary, which are indicated as various dimensions of …

Prosecuting And Defending Violations Of Genocide And Humanitarian Law: The International Tribunal For The Former Yugoslavia, Christopher L. Blakesley

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A symposium discussing the international war crimes tribunal for the former Yugoslavia, established by the United Nations Security Council’s . Christopher L. Blakesley discussed the procedural aspects of the War Crimes Tribunal.

Obstacles To The Creation Of A Permanent War Crimes Tribunal, Christopher L. Blakesley

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Individual liability for war crimes is difficult to enforce and is unlikely to be accepted uniformly by states.

Individual criminal responsibility is the cornerstone of any international war crimes tribunal. Nuremberg Principle I provides that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Acts by heads of state or other government officials, even if committed in an official capacity, may not constitute an immunity defense to or mitigate criminality. These officials, therefore, could also be held responsible for offenses committed pursuant to their orders. Additionally, liability for criminal …

State Support Of International Terrorism: Legal, Political And Economic Dimensions, Christopher L. Blakesley

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In this piece, Professor Blakesley reviews “State Support of International Terrorism: Legal, Political, and Economic Dimensions” by John F. Murphy.

The Need For An International Criminal Court In The New International World Order, Christopher L. Blakesley

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Any inquiry into the merits of an international criminal court must start with resolving three basic issues:

1. Can the tribunal improve international cooperation in law enforcement, add to the capabilities of the various nations in matters of international criminal law, or contribute in any incremental way to the solution of international and transnational criminal law problems by improving the current practice and enhancing the effectiveness of all concerned?

2. Will the recommended system have a better or equal chance of operating as effectively as the best existing systems of national criminal justice?

3. Will the recommended system improve efficiency …

Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells

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Whether there is parity between federal and state courts has become a central question in the law of federal courts, dividing judges and commentators into two well-defined camps. Although the issue rarely arose thirty years ago, it now enters into virtually every discussion of the rules concerning access to federal court for constitutional claims. On one side of the debate, advocates of broad federal jurisdiction over constitutional challenges to state action claim that federal courts are better than state courts at adjudicating these controversies. On the other side, advocates of state court jurisdiction insist that state courts are fully adequate …