Law Commons^™

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

SMU Law Review

The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which …

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

Don’T “Estop” Me Now: Estoppel, Government Contract Law, And Sovereign Immunity If Congress Retroactively Repeals Public Service Loan Forgiveness, Michael J. Cole

Lewis & Clark Law Review

This Article discusses whether Direct Loan borrowers can obtain recourse against the federal government using either promissory or equitable estoppel theories if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. The Article addresses various hurdles, including sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article also contends that most, if not all, equitable estoppel claims would likely fail before a court. The Article then offers …

Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer

Touro Law Review

The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world.

Is Partisan Gerrymandering Unconstitutional? Rethinking Rucho V. Common Cause, Barnett J. Harris

University of San Francisco Law Review

No abstract provided.

Arbitration Case Law Updates 2021–2022 (June 2022), Sandra D. Grannum, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner. There appears to be a move away from compelling arbitration and federal jurisdiction of motions to confirm or vacate. The courts have decided several cases specifically involving FINRA arbitrations, discussing who can bring them and what courts have jurisdiction over them.

In addition, the Federal Arbitration Act was amended by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the title of which speaks for itself.

Extraordinary Writ Or Ordinary Remedy? Mandamus At The Federal Circuit, Jonas Anderson, Paul R. Gugliuzza, Jason Rantanen

Utah Law Faculty Scholarship

Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if, among other things, the ruling was indisputably wrong and the party seeking mandamus has no other way to get relief. This exacting standard stems from mandamus’s origin as one of the common law’s “extraordinary” writs. Federal courts of appeals typically issue mandamus once or twice per year at most. 

In patent cases, however, mandamus is a remarkably ordinary form of …

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

Notre Dame Law Review

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Article Iii And The Political Question Doctrine, Scott Dodson

Northwestern University Law Review

Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such …

Many Minds, Many Mdl Judges, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

My focus here is on a cost that has been surprisingly neglected by scholars but may be the greatest cost of them all: the accurate adjudication of legal claims and defenses. I suspect it is intuitive to most of us that asking one person to decide something instead of inviting many other people to weigh in probably reduces the quality of the resulting decision. There is a literature that formalizes this intuition called "many-minds" scholarship. It proceeds from a famous mathematics proof known as the Condorcet Jury Theorem. Although some people have questioned the applicability of many-minds theories to legal …

The Survey On Cross-Border Collection Of Digital Evidence By Representatives From Polish Prosecutors’ Offices And Judicial Authorities, Paweł Olber Dr

Journal of Digital Forensics, Security and Law

Dynamic development of IT technology poses new challenges related to the cross-border collection of electronic evidence from the cloud. Many times investigators need to secure data stored on foreign servers directly and then look for solutions on how to turn the data into a legitimate source of evidence. To study the situation and propose solutions, I conducted a survey among Polish representatives of public prosecutors' offices and courts. This paper presents information from digital evidence collection practices across multiple jurisdictions. I stated that representatives from the prosecution and the judiciary in Poland are aware of the issues associated with cross-border …

Winning, Defined? Text-Mining Arbitration Decisions, Charlotte S. Alexander, Nicole G. Iannarone

Cardozo Law Review

Who wins in consumer arbitration? Historically, this question has been nearly impossible to answer, as most arbitration proceedings are a private black box, and arbitral forums release only limited summary statistics. One exception is the Financial Industry Regulatory Authority (FINRA), which arbitrates virtually all disputes between investors and stockbroker-dealers, and makes all of its nearly 60,000 written arbitration decisions publicly available in an online database. This Article is the first to use computational text analysis tools to study these decisions, and to construct a measure of the claimants’ win, loss, and settlement rates. It is the first installment in an …

Legalizing Undocumented Work, Jennifer J. Lee

Cardozo Law Review

No abstract provided.

23rd Annual Open Government Summit: Attorney General State Of Rhode Island : Access To Public Records Act & Open Meetings Act July 30, 2021, Office Of The Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Bell V. Goggles, 19-Ap-02 (Blkfet. Tr. Ct. App., July 19, 2021), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court dismissed a case for lack of jurisdiction over the parties. The case concerned child support obligations arising from the State of Wyoming, Wind River Indian Reservation. Neither the petitioner nor respondent are Blackfeet, nor the children concerned. While the Blackfeet Nation Honors full faith and credit, the respondent does not reside on the Blackfeet Reservation, therefore relief in this matter does not apply to the decision of the Blackfeet Tribal Court.

Enforcing Outbound Forum Selection Clauses In State Court, John Coyle, Katherine Richardson

Indiana Law Journal

Forum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.

This Article aims to fill that gap. …

The District Of South Carolina's Approach To Post-Removal Damage Stipulations: The Need For One Less "Controversy" In The Amount-In-Controversy Analysis, Samuel C. Williams

South Carolina Law Review

No abstract provided.

Slow And Steady Saves The Whales: Preventing Vessel Strikes On Whales In The Santa Barbara Channel, Anthony Cusato

William & Mary Environmental Law and Policy Review

“While in the life the great whale’s body may have been a real terror to his foes, in his death his ghost becomes a powerless panic to a world.” In the past, whales and humans (in boats) fought on the high seas. The humans fought for precious whale oil while the whales fought for their rights not to be murdered and turned into oil. While those days are mostly long gone, whales still face a serious threat of harm from humans in the form of vessel strikes, which is when a whale is struck by a vessel. Vessel strikes are …

Exhausting Comity-Based Abstention In The Fsia’S Expropriation Exception, Avi Rosskamm

Cardozo Law Review

No abstract provided.

The Essentially-At-Home Requirement For General Jurisdiction: Some Embarrassing Cases, David Crump

Catholic University Law Review

In Daimler AG v. Baumann, the Supreme Court held that general jurisdiction does not exist unless the defendant is “essentially at home” in the forum. It offered two examples of places fitting this description but gave little further guidance or justification. A metaphor, such as essentially at home, is a bad way to express a legal standards, because the essence of a metaphor is that it substitutes one reality for another, creating a deliberate confusion. The Court also equated general jurisdiction with what it called all-purpose jurisdiction, which is wrong because it is easy to pose cases in which general …

Greening The Trust: Enforcing Pennsylvania's Environmental Rights And Duties To Combat Climate Change, Julia E. Sappey

William & Mary Law Review

Over the last century, humans have warmed the planet by approximately 1.0°C. Pennsylvania’s average temperature has risen 1.8°F in the last hundred years, and climate scientists predict it will warm an additional 5.4°F by 2050. These rising temperatures create feedback loops, leading to warming that will eventually become irreversible. Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Significance Of Arbitration Islamic Jurisprudence-Dr. Abdul Majeed Al-Susuah

UAEU Law Journal

The significance of the concept of arbitration in Islam stems Form the fact that the verdict that the arbitrator reaches is considered binding for both adversaries. That is, his ruling cannot be rebutted, unless a legitimate justification calls for a rebuttal. Both adversaries can dismiss the arbitrator before he reaches his verdict. However, an opponent cannot dismiss the arbitrator after he listened to the case unless the other opponent agrees. The adversaries' approval of the arbitrator's decision is not required as long as it conforms with the Islamic Jurisdiction.

The convict has the right to file a petition, rebutting the …

The Civil Liability Claim Arising Out Of The Infringement Of The Privacy Right A Study In Jordanian Private International Law, Nour Hamed Al-Hajaya

UAEU Law Journal

Protection of privacy right is vital. Therefore, the injured person is entitled to claim damages for any infringement of his privacy right. However, claiming damages face some difficulties pertaining to the determination of the competent court and the applicable law in case where the infringement involves a foreign element. This Article is devoted to tackle these two issues in two chapters and a conclusion. Chapter one will tackle the issue of competent court through the application of the criteria stated in Articles 27 and 28 of the Jordanian Law of Civil Proceedings on the International Jurisdiction of Jordanian Courts to …

The Rationale For The Executive Authority To Resort To The Judiciary, Mohamed Farouk Mohammed

UAEU Law Journal

Selecting the state for direct execution is not free from restrictions, as it is imagined; disobeying to every limit, but it has conditions and restrictions the executive power must fulfill before selecting this approach, the executive power recognized this matter recently, so it began to waive practicing this direct execution for condition it estimated in the light of general interest preferring resorting to jurisdiction firstly in spite of bad sense of some police administration that foreign from this field of law supremacy due to effects of this practice.

The administration may refuse resorting to administrative methods to exigent its right …

The Tax And Zakat Appeal System In The Kingdom Of Saudi Arabia: An Overview, Ahmed A Altawyan

UAEU Law Journal

The competent judicial authority for adjudicating tax disputes differs from state to state. Some laws allow general court’s jurisdiction to adjudicate tax disputes. Others allow administrative court’s jurisdiction over taxation and zakat disputes because one of the parties involved in most such disputes is the competent government authority vested with administrative decision-making powers for assessment and collection of taxes. Therefore, it is natural for the administrative judiciary to be vested with the adjudication of tax disputes. However, there is a different legal system in the Kingdom of Saudi Arabia (KSA) to address such disputes. This study examines the differences between …

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …