Law Commons^™

Political Question Disconnects, Elizabeth Earle Beske

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Borders And Bits, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …

Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer

Maine Law Review

Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …

The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor

Chicago-Kent Law Review

No abstract provided.

The Case For Restricting Diversity Jurisdiction: The Undeveloped Arguments, From The Race To The Bottom To The Substitution Effect, David Crump

Maine Law Review

Diversity jurisdiction is an idea whose time has come--and gone. In its present form, it serves its alleged purpose so inconsistently that its benefits are minimal, if they exist at all. And the costs that it imposes are significant. The traditional arguments for and against diversity are well known, but the traditional arguments against it actually understate its disadvantages. Therefore, the purpose of this Article is to construct the arguments against diversity that traditional scholarship has left underdeveloped. These include the proposition that today, in the twenty-first century, there are more reasons than ever to authorize diversity jurisdiction more selectively. …

Emerging From Daimler's Shadow: Registration Statutes As A Means To General Jurisdiction Over Foreign Corporations, Nicholas D'Angelo

St. John's Law Review

(Excerpt)

This Note argues for the increased exercise of general jurisdiction based on registration statutes. Carefully drafted state statutes, explicitly stating that corporations registering to do business in a state thereby consent to general jurisdiction, not only solve the consequences of Daimler, but also fully comport with traditional values of fairness.

Part I outlines the jurisprudential history related to general jurisdiction. Section A begins with the concept of territoriality introduced in Pennoyer and the minimum contacts analysis in International Shoe, then discusses the modern doctrine in Perkins, Helicopteros, and Goodyear, culminating with Daimler. Section …

Debugging Software Patents After Alice, Jonathan Stroud, Derek M. Kim

South Carolina Law Review

No abstract provided.

Context At The International Criminal Court, Hassan Ahmad

Pace International Law Review

In this article, I propose a contextual approach to ICC jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Procedurally, …

Doscher: The Second Circuit Frees Itself From Its Prior Look Through Approach, Fueling A Circuit Split, Peter Nelson

Arbitration Law Review (2009 - Present)

No abstract provided.

Adverse Interests And Article Iii: A Reply, James E. Pfander, Daniel Birk

Northwestern University Law Review

Scholars and jurists have long sought an explanation for why the Framers of Article III distinguished “Cases” from “Controversies.” In a previous article that cataloged the exercise of federal jurisdiction over uncontested matters, such as pension claims, warrant applications, and naturalization proceedings, we tried to provide an answer to this question. We suggested that, at least as to “cases” arising under federal law, the federal courts could exercise what Roman and civil lawyers called non-contentious jurisdiction or, in the words of Chief Justice Marshall, could hear uncontested claims of right in the form prescribed by law. As for “controversies,” by …

Where Should They Go? Why The United States Should Have Jurisdiction Over Those Being Charged In The Fifa Corruption Scandal, Mike Leary

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Brief Amici Curiae On Behalf Of International And Constitutional Law Experts In Support Of Petition For Certiorari, Al Bahlul V. United States , 840 F.3d 757 (D.C. Cir. 2016) (En Banc), Robert D. Sloane, Foley Hoag Llp

Faculty Scholarship

Amici curiae, legal experts in international and constitutional law, believe that a majority of the en banc panel in Bahlul v. United States, 840 F.3d 757 (D.C. Cir. 2016) (en banc), mistakenly affirmed Ali Hamza Ahmad Suliman al Bahlul’s conviction by a military commission for a non-international war crime. The main concurring opinion in that case misconceived how international law defines the jurisdiction of law-of-war military commissions. As amici argue below, it is the Constitution—not international law—that limits the jurisdiction of lawof-war military commissions.

In Re Davis Family Heritage Trust, 133 Nev. Adv. Op. 26 (May 25, 2017)., Ping Chang

Nevada Supreme Court Summaries

No abstract provided.

Dueling Grants: Reimagining Cafa’S Jurisdictional Provisions, Tanya Pierce

Georgia State University Law Review

More than a decade after Congress passed the Class Action Fairness Act of 2005 (CAFA), courts continue to disagree as to its application and meaning in a variety of situations, many of which have wide-ranging effects. This article considers a fundamental issue that arises after a certification decision is reached: whether a court’s subject matter jurisdiction under CAFA depends on a class being certified. Specifically, the article considers what happens when a federal court’s subject matter jurisdiction derives solely from CAFA’s minimal diversity jurisdiction provision and a request for class certification under Federal Rule of Civil Procedure 23 (Rule 23) …

When Is It Necessary For Corporations To Be Essentially At Home?: An Exploration Of Exceptional Cases, Priscilla Heinz

University of Richmond Law Review

No abstract provided.

Drawing Lines Of Sovereignty: State Habeas Doctrine And The Substance Of States' Rights In Confederate Conscription Cases, Withrop Rutherford

University of Richmond Law Review

No abstract provided.

Is It Safe To Speak Up Now? Evaluating The Expansion Of Whistleblower Protection Act Jurisdiction, Gil Landau

Journal of the National Association of Administrative Law Judiciary

Whistleblowers have uncovered billions of dollars of fraud and severe national security threats. Nonetheless, for many years, federal employee whistleblowers faced retaliation and termination. Congress passed the Whistleblower Protection Act (WPA) in an attempt to protect federal employee whistleblowers. But, the exclusive court for WPA appeals, the Federal Circuit, ignored Congressional intent and limited the WPA’s protections. In 2013, Congress responded by creating a five year experiment, known as “all circuit review,” to determine if WPA claims should also be appealable to the regional circuits. Over the past three years, all circuit review has led to modest changes in WPA …

Original Intent: Understanding The Supreme Court's Original Jurisdiction In Controversies Between States, Kristen A. Linsley

The Journal of Appellate Practice and Process

No abstract provided.

Undemocratic Restraint, Fred O. Smith, Jr.

Vanderbilt Law Review

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch's avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine. The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not …

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

The Stream Of Violence: A New Approach To Domestic Violence Personal Jurisdiction, Cody Jacobs

Faculty Scholarship

There is a split among state courts about whether personal jurisdiction over an alleged domestic violence perpetrator is required in order to obtain a civil protection order preventing the defendant from contacting the victim. Some courts have held that such orders interfere with the defendant’s liberty interests, and therefore the Due Process Clause requires personal jurisdiction for the issuance of such orders. Other courts have held that personal jurisdiction is not required because such protection orders are analogous to custody and divorce orders, which, under the “status exception,” courts have historically entered without establishing personal jurisdiction over the other party. …

Federal Research, Yolanda Patrice Jones Phd, Mls

Faculty Books and Book Contributions

Finding legal information in the United States can be difficult and/or confusing for the layperson. Electronic databases such as LexisNexis or Westlaw may only be accessible for those who can afford it. Even with access to these databases, those without legal training may find them to be overwhelming. This chapter aims to shed some light on the process of doing federal legal research as well as recommend Internet sites where the layperson can get access to free legal resources.

The Asymmetry Problem: Reflections On Calvin Massey’S Standing In State Courts, State Law, And Federal Review, John M. Greabe

The University of New Hampshire Law Review

This paper is based on remarks delivered at a symposium to honor my University of New Hampshire School of Law colleague Calvin Massey, who passed away in the fall of 2015. The paper discusses an asymmetry in federal standing law. The asymmetry lies in the fact that, when a state’s highest court decides the merits of a federal claim brought in circumstances where the claimant has standing under state law but not federal law, the United States Supreme Court has jurisdiction to review the decision only if the state supreme court upholds the federal claim. This asymmetry was the subject …

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

Corporate Criminal Responsibility For Human Rights Violations: Jurisdiction And Reparations, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Cross-Border Evidence Gathering In Transnational Criminal Investigation: Is The Microsoft Ireland Case The 'Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material which the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas

Articles, Book Chapters, & Popular Press

Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

"Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

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

Scholarly Works

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 …