Law Commons^™

Natural Forum And The Elusive Significance Of Jurisdiction Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

The Singapore court's power to stay its proceedings by reason of its not being the appropriate forum the proceedings ought not to be continued is underpinned by the common law principle enunciated in The Spiliada that generally a trial should be heard in its natural forum. The Rainbow Joy adds significantly to Singapore law on forum non conveniens on two important points. First, it establishes that it is not necessary to show that the alternative forum abroad is constituted as a court of law. Secondly, the case establishes that whether there is a defense claim on the merits is an …

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. …

Reform Of Public Company Disclosure In Europa, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

Transnational Legal Practice Developments, Robert E. Lutz, Philip T. Von Mehren, Laurel S. Terry, Peter Ehrenhaft, Carole Silver, Clifford J. Hendel, Jonathan Goldsmith, Masahiro Shimojo

Faculty Scholarly Works

No abstract provided.

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

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

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

International Antisuit Injunctions: Enjoining Foreign Litigations And Arbitrations - Beholding The System From Outside, Marco Stacher

Cornell Law School J.D. Student Research Papers

Antisuit injunctions are issued by a court to prevent a party from bringing suit in another forum. They are a powerful tool available to American courts to implement their decision on jurisdiction. It goes without saying that granting such an injunction de facto affects the capability of the other forum to hear the dispute, which conflicts with the principle of comity. American courts therefore only enjoin a party from proceeding in another forum if certain criteria are satisfied. This paper discusses these criteria in the context of international litigations and arbitrations. It analyzes the case law on this issue and …

Federal Maritime Jurisdiction Pushes Inland,, Benjamin Spruill

Sea Grant Law Fellow Publications

No abstract provided.

Justice And The Outsider: Jurisdiction Over Nonmembers In Tribal Legal Systems, Bethany Berger

Faculty Articles and Papers

Over the last quarter century, the Court has progressively limited tribal jurisdiction over both non-Indians and Indians who are not members of the tribe. The Article examines these decisions to show that they owe less to established Indian law doctrine than to two assumptions: first, that tribal courts will be unfair to outsiders and second, that jurisdiction over outsiders has little to do with tribal self-government. It then tests these assumptions against an examination of all cases decided by the Navajo Nation appellate courts over the last thirty-five years and the history and contemporary situation of tribal legal systems. This …

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi

Faculty Publications

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …

Law Beyond Borders: Jurisdiction In An Era Of Globalization, Introduction To The Symposium, Robert A. Sedler

Law Faculty Research Publications

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.

Jurisdiction And Merits, Howard M. Wasserman

Faculty Publications

Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and …

Rasul V. Bush: Unanswered Questions, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

The New Universal Jurisdiction: In Absentia Signaling Over Clearly Defined Crimes, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

No abstract provided.

Alvarez-Machain Ii: The Supreme Court's Reliance On The Non-Self-Executing Declaration In The Senate Resolution Giving Advice And Consent To The International Covenant On Civil And Political Rights, Malvina Halberstam

Articles

No abstract provided.

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels

Faculty Scholarship

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Symbiotic Federalism And The Structure Of Corporate Law, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

No abstract provided.

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Terrorism: The Politics Of Prosecution, Madeline Morris

Faculty Scholarship

No abstract provided.

The Fda And The Tort System: Postmarketing Surveillance, Compensation, And The Role Of Litigation, Catherine T. Struve

All Faculty Scholarship

The dispute over FDA regulatory preemption is familiar: Preemption advocates assert that products liability suits stifle innovation, and proponents of tort liability counter that the FDA fails adequately to protect the public and that persons injured by defective products deserve compensation. The FDA's premarket approval process cannot detect all potential safety problems with a new drug; postmarketing surveillance is essential, and the FDA's efforts in that regard fall short. Advocates of preemption will find it difficult to establish that FDA regulation should entirely displace the tort system. This article examines whether a case could be made for an intermediate approach …

Resolving Renvoi: The Bewitchment Of Our Intelligence By Means Of Language, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Immunity For Foreign Officials: Possibly Too Much And Confusing As Well, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

In his thoughtful presentation, David Stewart observes from his daily experience that the law of international immunities is a "rather complex body of rules." In analyzing immunity issues, one needs to take into account treaties, laws, and/or cases that include, among others, the Foreign Sovereign Immunities Act, diplomatic and consular immunity, the case law regarding head of state immunity, and international organization law. In addition, there is pending the new UN Convention on Jurisdictional Immunities of States and their Property. Mr. Stewart also posits a general conclusion that in recent decades the general trend has been to limit the scope …

Book Review Of Luc Reydams, Universal Jurisdiciton: International And Municipal Legal Perspectives (2003), David Luban

Georgetown Law Faculty Publications and Other Works

Some crimes are so odious that committing them makes one hostis generis humani (an enemy of all mankind). Intuitively, the idea of a universal enemy implies the possibility of universal criminal jurisdiction (UCJ). As Luc Reydams notes, the notion of UCJ originated in the 16th century with Covarruvias, although the idea is better known through Grotius's famous assertion that every state has jurisdiction over "gross violations of the law of nature and of nations, done to other states and subjects" (De Jure Belli ac Pacis, AC Campbell trans., II.20.VII). For many years piracy was the only recognized UCJ crime, not …

Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow

Articles

The headline-grabbing business failures of late have brought increased attention to the relatively unresolved area of multinational bankruptcies. Parmalat, Global Crossing, and United Airlines are among the few international juggernauts that have foundered. In the financial meltdowns of these cross-border institutions, assets and creditors are dispersed throughout commercial environments that rarely end neatly at national borders. There has been heated debate, both in scholarly literature and the practical battlefield, over how best to resolve these transnational insolvencies, and there is nothing yet approaching a consensus. Reform efforts of various stripes have almost uniformly failed to gain meaningful international support. At …

Transnational Legal Practice Developments, Carole Silver, Robert E. Lutz, Philip T. Von Mehren, Laurel S. Terry, Peter Ehrenhaft, Clifford J. Hendel, Jonathan Goldsmith, Masahiro Shimojo

Articles by Maurer Faculty

No abstract provided.

Prolegomenon To A Pedestrian Cartography Of Mixed Legal Jurisdictions: The Case Of Israel/Palestine, Susan G. Drummond

Articles & Book Chapters

The relationship between cartography and law provides a unique focus through which to examine mixed legal jurisdictions. Through an exploration of the various uses of law, cartography, and nation building, the author postulates that mixed legal jurisdictions are created through the subtle incorporation of the originally unfamiliar “Other”. In Canada, European settlers asserted sovereignty through the mapping and naming of territory in ways that did not accord with traditional Aboriginal patterns of usage or conceptualizations of space. The eventual creation of a legal middle ground between these peoples, as articulated by Richard White, is the basis of the author’s analysis …