Law Commons^™

Explaining Arbitration Law, William W. Park

Faculty Scholarship

Most fields of law provide guidance on how courts decide cases. In contrast, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants.

At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. As we shall see, in applying these principles, the devil lurks in the details of …

Challenging Arbitral Jurisdiction: The Role Of Institutional Rules, William W. Park

Faculty Scholarship

One oft-discussed element in arbitration law relates to the judicial function in monitoring the basic integrity of the arbitral process, so the case will be heard by a tribunal that not listens before deciding, and which stays within its mission. Arbitrators must remain within the contours of confines of their authority, has been the subject of well-known national judicial decisions applying the hard law of statutes and treaties.

Less-often debated, institutional rules play a vital jurisdiction role in complementing national and international legal norms. The 2012 ICC Arbitration Rules provide an intriguing study of how administrative decisions dovetail into jurisdictional …

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Faculty Publications

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now …

Daimler And The Jurisdictional Triskelion, Zoe Niesel

Faculty Articles

No abstract provided.

Slides: Never Let A Crisis Go To Waste, Lester Snow

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Lester Snow, Executive Director, California Water Foundation

39 slides

Hague Convention On Choice Of Court Agreements 2005: A Singapore Perspective, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

When Singapore joined the Hague Conference on 9 April 2014, it was widely anticipated that it would adopt the Hague Convention on Choice of Court Agreements 2005. This article explores the differences between the Convention regime and the common law position in Singapore, the likely effects of the adoption of the Convention under Singapore law, as well as the considerations that are likely to influence Singapore's approach to the adoption of the Convention.

The Supreme Court's Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley

Faculty Publications

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional. "In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …

The Case Against Federalizing Trade Secrecy, Christopher B. Seaman

Scholarly Articles

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing …

Fletcherian Standing, Merits, And Spokeo V. Robins, Howard Wasserman

Faculty Publications

This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication of …

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging …

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Law Faculty Publications

Time and again, the U.S. Supreme Court has declared that the federal cause of action is "analytically distinct" from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modem usage in the federal courts. This history demonstrates that the federal cause of action is …

The Other Side Of The Rabbit Hole: Reconciling Recent Supreme Court Personal Jurisdiction Jurisprudence With Jurisdiction To Terminate Parental Rights, Joan M. Shaughnessy

Scholarly Articles

This Essay contrasts the jurisdictional regime followed in termination of parental rights and other child custody cases with the regime that has dominated recent Supreme Court personal jurisdiction cases. Jurisdiction in child custody cases has long been based upon the connection of the child, not the defendant parent, to the jurisdiction. Recent Supreme Court cases, on the other hand, have focused nearly exclusively on the defendant’s connection to the forum state. This Essay argues that the Supreme Court cases betray a failure of the Court to provide a consistent constitutional justification for the jurisdictional limitations it has imposed. The Essay …

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 …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.

Children With Gender Dysphoria And The Jurisdiction Of The Family Court, Felicity Bell

Faculty of Law, Humanities and the Arts - Papers (Archive)

Gender dysphoria is described as ‘[m]ental distress caused by unhappiness with one’s own sex and the desire to be identified as the opposite sex’. Gender dysphoria is distinguished from being intersex, the subject of a recent Australian Senate Committee report, which is referable to physical characteristics. It is also distinguished from gender non-conformism, gender diversity or transsexualism as, in addition to identifying and living as one’s non-natal gender, it involves ‘clinically significant distress’. Unfortunately, children with gender dysphoria (and indeed many gender diverse young people) are almost by definition at a high risk of depression and anxiety, as well as …

Marine Protected Areas - Developing Regulatory Frameworks For Areas Beyond National Jurisdiction, Robin M. Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

The increasing intensity and impacts of human activities in the global oceans pose significant threats to the extensive repository of marine species, habitats and ecosystems in the vast marine areas beyond national jurisdiction (ABNJ). This article examines the scope of these threats and the role of areas based management mechanisms such as marine protected areas (MPAs) in addressing those threats. It discusses the law and policy rationale for establishing MPAs in ABNJ and some regional examples of MPA designation in the North East Atlantic, the Mediterranean, Antarctica and the Sargasso Sea. Finally it reviews global initiatives in the United Nations …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Scholarly Works

The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

Understanding Judgments Recognition, Ronald A. Brand

Articles

The twenty-first century has seen many developments in judgments recognition law in both the United States and the European Union, while at the same time experiencing significant obstacles to further improvement of the law. This article describes two problems of perception that have prevented a complete understanding of the law of judgments recognition on a global basis, particularly from a U.S. perspective. The first is a proximity of place problem that has resulted in a failure to understand that, unlike the United States, many countries allow their own courts to hear cases based on a broad set of bases of …

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven M. Davidoff

All Faculty Scholarship

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result …

What Are The Article Iii Limits To Bankruptcy Court Jurisdiction, And Can Parties Consent To Expanded Jurisdiction: Wellness International Network V. Sharif (13-935), Marshall E. Tracht

Articles & Chapters

No abstract provided.

The Viability Of Enterprise Jurisdiction: A Case Study Of The Big Four Accounting Firms, Hannah L. Buxbaum

Articles by Maurer Faculty

One of the boundaries that U.S. courts must observe as they adjudicate regulatory disputes is the limit on their own jurisdictional authority -authority that is measured at the level of the particular forum state. Confronting the expansion of U.S. business activity from the local to the national scale during the second half of the twentieth century, courts consciously broadened jurisdictional standards to address the expanded activities of nationwide corporate groups. Today, by contrast, as the economy continues to expand from the national to the transnational scale, the U.S. Supreme Court has begun a retrenchment. In cases decided during the past …

Judicial Participation In Plea Bargaining: A Dispute Resolution Perspective, Rishi Batra

Faculty Articles

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates …

Five Questions After Atlantic Marine, Stephen E. Sachs

Faculty Scholarship

The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …

The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble

Scholarly Works

From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements.

This Article posits that …

Bypassing Federalism And The Administrative Law Of Negawatts, Sharon B. Jacobs

Publications

Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. This move, which the Article calls "bypassing federalism, " involves using existing jurisdictional authority to work defacto, rather than dejure, reallocations of power. The Article explores agency bypassing through the lens of the Federal Energy Regulatory Commission's ("FERC's") promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or "negawatts," back to the electrical grid. FERC, eager to promote demand-side management programs but stymied …