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2012

Jurisdiction

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Articles 1 - 30 of 162

Full-Text Articles in Law

Jurisdiction In Nineteenth Century International Law And Its Meaning In The Citizenship Clause Of The Fourteenth Amendment, Robert E. Mensel Dec 2012

Jurisdiction In Nineteenth Century International Law And Its Meaning In The Citizenship Clause Of The Fourteenth Amendment, Robert E. Mensel

Saint Louis University Public Law Review

This article addresses the meaning of the citizenship clauses of the Civil Rights Act of 1866 and the Fourteenth Amendment by augmenting the historical record relevant to those clauses. It argues that the key to understanding their meaning lies in the nineteenth century concept of allegiance, the central concept in the international law of citizenship and subjecthood in the nineteenth century. International law, diplomatic history, and international conflict centered around that concept, reveal complexities not fully explored in the previous scholarly literature on the citizenship clauses. Conflicting national claims to the allegiance of subjects and citizens and to the duties ...


Kiobel V. Royal Dutch Petroleum: Delineating The Bounds Of The Alien Tort Statute, Tara Mcgrath Dec 2012

Kiobel V. Royal Dutch Petroleum: Delineating The Bounds Of The Alien Tort Statute, Tara Mcgrath

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the upcoming Supreme Court case, Kiobel v. Royal Dutch Petroleum Co., in which the Court will address questions regarding the Alien Tort Statute and its applicability to foreign conduct and foreign litigants. The case will require the Court to reexamine the bounds of a long-ago established tort doctrine in light of more modern considerations and developments in international law.


Mcmillan V. Mcmillan: Choice Of Law In A Sinkhole, Doug R. Rendleman Dec 2012

Mcmillan V. Mcmillan: Choice Of Law In A Sinkhole, Doug R. Rendleman

Doug Rendleman

No abstract provided.


Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy Dec 2012

Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy

David T. Hardy

Dred Scott v. John F. A. Sandford was one of the most critical cases in Supreme Court history, “an astonisher,” as Lincoln phrased it. In the “Opinion of the Court,” which was not actually the opinion of the Court (parts of it mustered only three votes), Chief Justice Taney stretched to insulate slavery in every way manageable. The ruling became instead an application of the “law of unintended consequences.” It led to the rise of Abraham Lincoln (who devoted much of his “House Undivided” speech to it), the destruction of Stephen Douglas’ presidential campaign (since it held his core position ...


History Of The Statutory Rules Of Federal Jurisdiction And Procedure, Robert C. Brown Dec 2012

History Of The Statutory Rules Of Federal Jurisdiction And Procedure, Robert C. Brown

Dr Robert Brown

No abstract provided.


Domicile Versus Situs As The Basis Of Tax Jurisdiction, Robert Brown Dec 2012

Domicile Versus Situs As The Basis Of Tax Jurisdiction, Robert Brown

Dr Robert Brown

Address by Robert C. Brown, Professor of Law at Indiana University School of Law, delivered at the National Tax Conference, Indianapolis, Indiana, October, 1936.


Modalities For Advancing Cross-Sectoral Cooperation In Managing Marine Areas Beyond National Jurisdiction, Kristina Gjerde, Jeff Ardron, Sarah Gotheil, Quentin Hanich, Francois Simard, Robin Warner, Patricio Bernal, Serge Garcia, Jihyun Lee, Michael Lodge, Imen Meliane, Jake Rice, Jessica Sanders Dec 2012

Modalities For Advancing Cross-Sectoral Cooperation In Managing Marine Areas Beyond National Jurisdiction, Kristina Gjerde, Jeff Ardron, Sarah Gotheil, Quentin Hanich, Francois Simard, Robin Warner, Patricio Bernal, Serge Garcia, Jihyun Lee, Michael Lodge, Imen Meliane, Jake Rice, Jessica Sanders

Robin Warner

[extract] Introduction 1. This report provides information and advice to the Secretariats and Member States of Regional Seas Conventions & Action Plans (RSCAPs) on modalities for advancing crosssectoral cooperation to progress internationally agreed conservation and sustainable use goals in marine areas beyond national jurisdiction.


Jurisdiction And Nation-Building: Tall Tales In Nineteenth-Century Aotearoa/New Zealand, Nan Seuffert Dec 2012

Jurisdiction And Nation-Building: Tall Tales In Nineteenth-Century Aotearoa/New Zealand, Nan Seuffert

Professor Nan Seuffert

Que.stions of jurisdiction involve the determination of the boundaries of the law. Notions of modern territorial jurisdiction emerged with the development of the modern natioin-state as the bounded territory in which a particular set of laws applIed. These modern notions of both nation-state and jurisdiction facilitated colonisation by determining the territorial boundaries in which colonial law applied, by determing the national space to other nations, and by producing difference within national and jurisdictional boundaries. The production of internal difference, the creation of differences between distinct groupings through the law's jurisdictional speech, is arguably the most important work that ...


Same-Sex Divorce In The Conflict Of Laws, Herma Hill Kay Dec 2012

Same-Sex Divorce In The Conflict Of Laws, Herma Hill Kay

Herma Hill Kay

No abstract provided.


Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky Dec 2012

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens ...


Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger Dec 2012

Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger

West Virginia Law Review

No abstract provided.


Regulatory Conflicts: International Tender And Exchange Offers In The 1990s, John C. Maguire Nov 2012

Regulatory Conflicts: International Tender And Exchange Offers In The 1990s, John C. Maguire

Pepperdine Law Review

No abstract provided.


Cooperative Agreements: Government-To-Government Relations To Foster Reservation Business Development, Joel H. Mack, Gwyn Goodson Timms Nov 2012

Cooperative Agreements: Government-To-Government Relations To Foster Reservation Business Development, Joel H. Mack, Gwyn Goodson Timms

Pepperdine Law Review

No abstract provided.


Law Of Trade In Human Rights: A Legal Analysis Of The Intersection Of The General Trade Agreement Of Tariff’S Article Xx(B) And Labor Rights Of Children., Paul Cook Nov 2012

Law Of Trade In Human Rights: A Legal Analysis Of The Intersection Of The General Trade Agreement Of Tariff’S Article Xx(B) And Labor Rights Of Children., Paul Cook

Paul Cook

China's child labor is on the rise with its 8% annual economic growth. Children are valued for their labor for several reasons: their cheaper price, their ignorance of their legal rights, their dexterous hands, and good eye sight. The use of juvenile labor is most prevalent in the following industries: toy production, textiles, construction, food production, and light mechanical work. Underage laborers are particularly vulnerable to job related hazards resulting in injury and death, and this is because they tend to be less aware of workplace hazards than do adult workers. Children begin work as early as twelve years ...


Federal Judicial And Legislative Jurisdiction Over Entities Abroad: The Long-Arm Of U.S. Antitrust Law And Viable Solutions Beyond The Timberlane/Restatement Comity Approach, Michael G. Mckinnon Nov 2012

Federal Judicial And Legislative Jurisdiction Over Entities Abroad: The Long-Arm Of U.S. Antitrust Law And Viable Solutions Beyond The Timberlane/Restatement Comity Approach, Michael G. Mckinnon

Pepperdine Law Review

No abstract provided.


State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr Oct 2012

State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr

Pepperdine Law Review

No abstract provided.


Political Question Or Judicial Query: An Examination Of The Modern Doctrine And Its Inapplicability To Human Rights Mass Tort Litigation, Nancy S. Williams Oct 2012

Political Question Or Judicial Query: An Examination Of The Modern Doctrine And Its Inapplicability To Human Rights Mass Tort Litigation, Nancy S. Williams

Pepperdine Law Review

No abstract provided.


Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe Oct 2012

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.


Substance And Method In The Year 2000, Akhil Reed Amar Oct 2012

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.


Judicial Review And Deliberative Politics. A Tension In Need Of Analysis., Donald E. Bello Hutt Oct 2012

Judicial Review And Deliberative Politics. A Tension In Need Of Analysis., Donald E. Bello Hutt

Donald E. Bello Hutt

Champions of judicial review of legislation have defended this institution even before John Marshall decided Marbury v. Madison in 1803. Nevertheless, those defenses have to face with several difficulties, both practical and abstract. The aim of this paper is to analyze those difficulties and the context in which the defenses have been successful. We shall discuss the origins of judicial review in the work of James Iredell, Alexander Hamilton and John Marshall in order to introduce not only the first defenses of judicial review, but to fix the political context and dominant constitutional philosophy at their time: departmentalism and popular ...


Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull Oct 2012

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull

Emanwel J Turnbull

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.” This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for ...


Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips Oct 2012

Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips

Roger L Phillips

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms ...


Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity Oct 2012

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over ...


Universal Civil Jurisdiction And The Extraterritorial Reach Of The Alien Tort Statute: The Case Of Kiobel Before The United States Supreme Court, Paul Barker Oct 2012

Universal Civil Jurisdiction And The Extraterritorial Reach Of The Alien Tort Statute: The Case Of Kiobel Before The United States Supreme Court, Paul Barker

University of Miami International and Comparative Law Review

No abstract provided.


How Nations Share, Allison Christians Oct 2012

How Nations Share, Allison Christians

Indiana Law Journal

Every nation has an interest in sharing the gains they help create by participating in globalization. Citizens should be very interested in discovering how well their governments fare in claiming an adequate share of this international income stream, since a government that cannot or will not exert its taxing jurisdiction internationally is potentially missing out on a very large and very productive source of revenue. Yet it is all but impossible for citizens to observe exactly how, or how well, their governments navigate this aspect of economic globalization. The vast majority of international tax law plays out in practice through ...


Erie, Swift, And Legal Positivism, Michael S. Green Sep 2012

Erie, Swift, And Legal Positivism, Michael S. Green

Popular Media

No abstract provided.


Greater And Lesser Powers, Samuel Levin Sep 2012

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to ...


Death To Immunity From Service Of Process Doctrine!, John Martinez Sep 2012

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of efficiency of judicial proceedings and fairness to nonresidents than the immunity from service of process doctrine. The article proposes that the immunity from service of ...


Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton Sep 2012

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework ...


Death To Immunity From Service Of Process Doctrine!, John Martinez Sep 2012

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns ...