Law Commons^™

Calling On Congress: Use The Spending Clause To Keep Juveniles In Juvenile Court, Erin Fitzgerald

Pepperdine Law Review

Recently, juvenile justice reformers have had great success in expanding the reach of the juvenile court. Over the last two decades, many states have raised their age of majority, bringing older teens and young adults under the jurisdictional umbrella of the juvenile court. Likewise, many states have amended their transfer statutes, making transferring juveniles from juvenile court to adult criminal court more difficult. The success of these reforms is largely due to the relentless work of dedicated juvenile justice advocates and scholars. The “raise-the-age” movement and work to limit juvenile transfers has undoubtedly helped to retain more youthful offenders within …

There’S No Place Like Essentially At Home: General Jurisdiction Over Individuals Apart From Domicile And Presence, Jeffrey L. Rensberger

Arkansas Law Review

In personal jurisdiction, an intellectual siloing has prevented some courts from using a basis of jurisdiction over individuals that is available for corporations. This Article explores this question. Jurisdiction in such a case turns on whether general jurisdiction based on a large number of unrelated contacts--contacts-based general jurisdiction--applies to individuals as well as to corporations. The short answer is that despite hesitancy in the cases, such jurisdiction has historically been invoked and this is a correct result as a matter of due process doctrine. One aim of this Article is to dispel the doubt on this point that unnecessarily persists. …

Rudderless And Adrift: States’ Unwarranted Timidity Respecting Stateless Vessels, Andrew Norris

International Law Studies

This article argues that there is no international legal impediment to any State robustly asserting prescriptive, enforcement, or adjudicative jurisdiction over vessels without nationality. It first examines the rules relating to vessel nationality to demonstrate the strong international preference that vessels be properly flagged in a particular State. It then examines the phenomenon of vessels without nationality, with a focus on what constitutes statelessness, and what the contemporary understanding is of the jurisdictional effect of that status. It concludes with a legal analysis, based on the Lotus principle and a recent U.S. appellate court decision that relied upon it, of …

“Major Questions” Malarkey: An Arbitrary And Capricious New Doctrine For Vetoing Controversial Agency Rules, Lars Noah

St. John's Law Review

(Excerpt)

In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled …

Why Did The Lawyer Cross The Road? The Aba's Proposal To Overhaul Model Rule 5.5 And Permit Cross-Border Practice, Paula Frederick

Akron Law Review

The American Bar Association (ABA) is considering a proposal to amend Model Rule 5.5, which would allow lawyers licensed in any U.S. jurisdiction to practice law across state lines under specific conditions. This "driver's license" model aims to address current regulatory barriers by permitting lawyers to provide legal services nationwide, provided they disclose their home jurisdiction, comply with local rules, and meet certain ethical standards. Motivated by the pandemic, technological changes, and the uniform bar exam, the proposal seeks to improve access to legal services, reduce regulatory burdens, and offer clients greater choice of counsel, though it faces potential challenges …

Remote Work's Complication Of Companies' Personal Jurisdiction Standings: Morphing The Historical Analysis To Fit Modern Remote Work Characteristics, Lindarose Piccolo

American University Business Law Review

Personal jurisdiction ensures that the proper forum adjudicates civil disputes to prevent burdening a defendant with litigating in inconvenient forums. International Shoe Co. v. Washington established that defendants must have minimum contacts with the forum state such that exercise of jurisdiction comports with fair play and substantial justice. Following International Shoe, many cases have provided examples of the minimum contacts that would establish personal jurisdiction.

However, the ability for employees to work remotely from their homes using technological devices and software has exponentially increased over the past five years. Because of the increased ability to work remotely from anywhere in …

Web Of Exploitation: The Psychological Need For Comprehensive Federal Law To Combat Cyber Sexual Abuse, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

Cyber sexual abuse inflicts deep and lasting psychological harm on victims, often exacerbating the trauma of traditional sexual abuse due to the permanence and reach of digital content. Survivors may experience depression, anxiety, PTSD, and suicidal ideation as intimate images, videos, or messages resurface indefinitely online. Despite the severity of its impact, current state and federal legal protections are limited and inconsistent, leaving many victims without adequate criminal or civil remedies. This article argues for the creation of comprehensive federal legislation specifically targeting cyber sexual abuse. Such laws would not only provide clearer paths to justice and accountability but also …

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

It’S Not Too Late For States Parties To Fulfill The Promise Of The International Criminal Court: Three Actions They Should Take Now, Leila Nadya Sadat

Scholarship@WashULaw

What to do about a world in which atrocity crimes appear to be occurring with increasing and alarming frequency? Wars are prosecuted using scorched earth tactics that involve the commission of war crimes and crimes against humanity, credible allegations of genocide have been leveled at States in several corners of the globe, and acts and wars of aggression, which will be the subject of discussion at the upcoming International Criminal Court (ICC) Review in July, are on the rise.

The United Nations and other international institutions seem powerless to prevent or contain the violence, and the ICC, which was created …

A Critical Juncture: The Convergence Of Natural Resource Management And Tribal Sovereignty, Anna Aleta Butterfield

Graduate Student Portfolios, Professional Papers, and Capstone Projects

This portfolio reflects the work I’ve done in my four years as a dual degree student, pursuing a Master of Science in Environmental Studies and a juris doctorate degree, and focuses on policies and laws surrounding natural resource management. It touches on how those policies relate to and expand or constrict the exercise of sovereignty by indigenous populations.

This piece first considers the effects of plastic on salmon populations and those indigenous groups that rely on salmon for subsistence and cultural purposes. The remaining three pieces focus on various aspects of the Confederated Salish and Kootenai Tribes - Montana Water …

Erie And Enforceability Of Forum Selection Clauses, Patrick Woolley

American University Law Review

Whether and to what extent state law governs the contractual validity of forum selection clauses in federal court remains highly contested. This Article argues for a two-part answer.

State law should govern whenever a party seeks a § 1404(a) transfer of venue within the federal judicial system. The Court has insisted that the choice-of-law rules of the state to which the suit is transferred govern when transfer is required by a contractually valid clause. That insistence accords with the Erie policy of vertical uniformity between state and federal courts only if the law of the state in which the transferring …

State V. Harding: Municipal Police Authority And The Fresh Pursuit Statute, David S. Schuman

Maine Law Review

As early as 1551, during the reign of King Edward VI, courts held at common law that, except in cases of fresh pursuit, the power of a sheriff or justice of the peace does not extend beyond his jurisdiction. Recognizing the importance of jurisdictional boundaries as limits on a sheriff's authority, the Barons of the Exchequer denounced the possibility of "two several sheriffs in one same county," observing that "in this realm there are divers authorities, and none may exceed his limits or bounds." Modern state statutes setting forth the powers of local police continue to limit the extra-jurisdictional authority …

Dissell V. Trans World Airlines: Constitutional Limitations On The Workers' Compensation Commission's Subject-Matter Jurisdiction, Patricia A. Nelson-Reade

Maine Law Review

To rule upon a workers' compensation claim, the Maine Workers' Compensation Commission must determine that it has both personal and subject-matter jurisdiction. Personal jurisdiction is determined by applying Maine's "long-arm" statute. Subject-matter jurisdiction derives from the Commission's status as an administrative agency authorized to administer the Maine Workers' Compensation Act (MWCA). Although subject-matter determination generally involves a choice-of-law issue, in a workers' compensation claim having extraterritorial aspects, the Commission is not free to apply the compensation acts of other states that have contacts with the claim. Rather, the Commission may determine only if it has authority under the MWCA to …

Rwu Law Alumni Newsletter December 2024, Roger Williams University School Of Law, Pbn Connect, Edward Fitzpatrick, Danna Lorch

RWU Law

No abstract provided.

Gwayak Ateg Onaakonigewi Dibenjigewin: Decolonizing Jurisdiction In Anishinaabe Tribal Courts, Kekek Jason Stark

Faculty Law Review Articles

It is generally understood as a matter of federal Indian law that determinations of tribal law should properly be interpreted by tribal courts. This is because tribal courts do not always adhere to the same legal philosophy as their settler colonial counterparts. Many tribal courts subscribe to traditional law, which is an “essential source” of tribal jurisprudence. Anishinaabe communities have maintained a rich body of traditional tribal law since time immemorial. However, these customary law principles are only recently being included in modern day Anishinaabe tribal court determinations. This article builds upon the Anishinaabe law principles articulated in recent opinions …

Not "Indian" Enough: Freedmen, Jurisdiction, And Equal Protection, Ted Shepherd

Pepperdine Law Review

Beginning in the 17th century, many American Indians owned enslaved African workers. They stopped only at the end of the Civil War, when several Tribal Nations signed treaties with the federal government requiring them to emancipate their enslaved workers. The treaties also required the Nations to enroll these “Freedmen” and their descendants as full Tribal members. The Nations complied for a time, but then withdrew membership from the descendants in the 1970s. In 2017, however, a federal court required the Cherokee Nation to honor its treaty and grant the descendants of Cherokee Freedmen full Tribal membership, which it did. Despite …

Jurisdiction Of The Land Use Regulation Commission Within Baxter State Park, Benjamin P. Townsend

Maine Law Review

Baxter State Park is a 200,000 acre preserve located in north-central Maine that contains, among other natural features, Maine's highest mountain, Katahdin. The park was created through the efforts of a former Governor of Maine, Percival Proctor Baxter, who bought the land himself and then donated it to the people of the State of Maine. His Deeds of Gift, which were accepted by the Maine Legislature, created a trust, under the terms of which the Park is to remain "forever wild." The park is supervised by the three-member Baxter State Park Authority, which is composed of the Attorney General, the …

Power For The People: Recognizing The Constitutional Right To Vote For President, Charlie Martel

Cardozo Law Review

On January 6, 2021, a mob attacked the United States Capitol to overthrow the certification of the legitimately elected president and install the election loser, Donald Trump. Before this, there was another coup attempt. Trump and his team pressured state legislators and officials not to certify legitimately elected presidential electors, and to instead certify fake electors for Trump. This was based on the theory that the Constitution grants states “plenary power” to select presidential electors, even if this means cancelling citizen elections or rejecting their outcome. The coups failed—this time.

There should be no next time. The Supreme Court should …

Office Of Attorney General: Peter F. Neronha, Attorney General: Access To Public Records Act ; Open Meetings Act (Powerpoint Presentation), Office Of The Attorney General Of Rhode Island, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Jurisdictional Issues For Cross-Border Copyright Infringement: A Study On Fansite Products, Naura Nabila Ikhsani Aulia Wibowo

Journal of Private International Law Studies

Korean pop (K-Pop) and its fandom culture have penetrated Indonesia, resulting in a flourishing K-pop product sector. Fansite goods, fan-made merchandise originating in Korea, are one of the most popular merchandise among fans. However, because Indonesian fans' purchasing power is still restricted, many of them resort to copyright infringement of fansite goods in order to either own or gain profit from the merchandise. This article will explain whether fansite goods are protected by copyright from which country, and if so, which jurisdiction and law is applicable to rule on a dispute of fansite goods copyright infringement perpetrated by an Indonesian …

Over-The-Air In Personam: Purposeful Availment Through Over-The-Air Updates, Samuel R. Boyd

South Carolina Law Review

No abstract provided.

Sackett V. Epa: The Narrowing Of "Waters Of The United States" Under The Clean Water Act And Its Downstream Effects On South Carolina Wetland Regulation, Simpson Z. Fant Jr.

South Carolina Law Review

No abstract provided.

Incentivizing Sustainability In American Enterprise: Lessons From Finnish Model, Vasa T. Dunham

Sustainable Development Law & Policy

The disparate climate performances of Finland and the United States, two of the wealthiest countries in the world, bring to light the question of how corporate responsibility has been inspired in each jurisdiction. Having established the urgency of the climate crisis and the importance of corporate behavior in optimizing a given country’s approach to protection of the global environment, an examination of each nation’s legal frameworks may shed light on features of the corporate regime that are effective in advancing sustainability goals and those that are not.22 Part I of this paper establishes a comparative framework by providing background on …

Narrowing From Below: How Lower Courts Can Limit Castro-Huerta, Michaela B. Parks

Arkansas Law Review

This Note will offer a plan for how Indian country can move forward in the wake of what anti-tribal sovereignty entities want to be a devasting decision. This Note advocates for a judicial remedy plan. Specifically, it calls upon lower courts to narrow Castro-Huerta from below to limit the effects of the decision. Part II provides a brief introduction to federal Indian law, a general overview of criminal jurisdiction in Indian country, and concludes with a summary of Castro-Huerta. Part III outlines two approaches to limiting that lower courts can use to narrow Castro-Huerta from below: textual limiting and fact-to-fact …

Shareholder Primacy Versus Shareholder Accountability, William Wilson Bratton

Articles

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance ("ESG") principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter-a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory's central tenet, shareholder primacy. Shareholder primacy builds …

Introduction: Twail And The International Law Of Jurisdiction, Rohini Sen

National Law School of India Review

Introduction: TWAIL and the International Law of Jurisdiction.

“Spread Your Wings And Fly Away” – Reimagining Customary International Law Jurisdiction In Investor- State Disputes, Harshad Pathak

National Law School of India Review

A common assumption in investor-state dispute settlement (ISDS) is that subject to the language of the arbitral provision invoked, an arbitration tribunal can only decide claims that allege a breach of the substantive obligations articulated in the instrument from which it derives jurisdiction. Over time, this assumption has come under challenge, including in cases where an ISDS tribunal derives jurisdiction from a municipal law source, such as an investment contract or legislation. The article addresses this issue by critiquing the Decision on Jurisdiction in Cambodia Power Company v. Cambodia, wherein an ICSID tribunal constituted pursuant to related investment contracts concluded …

A New Research Programme For International Relations And International Law: Jurisdiction, Capitalism, And Imperialist Infrastructures, Maïa Pal

National Law School of India Review

This article argues that Chimni’s proposed framework for historically and theoretically reconceptualising jurisdiction in ‘The international law of jurisdiction: A TWAIL perspective’ has important implications for a much-needed renewed encounter between the disciplines of International Law and International Relations. It begins by summarising the contribution of Chimni’s article in terms of its two historical and theoretical contributions. It then focuses on the theoretical reconceptualization of jurisdiction as structurally interdependent with capitalism and sovereignty, rather than territory and sovereignty as found in mainstream and liberal approaches. Moreover, Chimni’s article fills gaps in critical approaches by thinking of jurisdiction in more material …

Colonialism, Jurisdiction, And Sovereignty In Palestine, Usha Natarajan

National Law School of India Review

Knowledge production is never neutral, and academia – much like international laws and institutions among other social structures – is a key conduit for the efficient operations of power. Israel’s longstanding occupation and settler colonialism in Palestine challenges mainstream accounts of the international laws of jurisdiction, whereas Chimni’s TWAIL analysis better accounts for and predicts the imperial operations of such laws and points to fruitful evolution towards fairness and justice.10 I elaborate by considering firstly the exercise of jurisdiction during occupation and settler colonialism, and secondly the exercise of universal jurisdiction by states. I conclude with some thoughts on jurisdiction …

The Space Between Jurisdiction And Sovereignty, Asha Kaushal

National Law School of India Review

This Comment examines the relationship between jurisdiction and sovereignty in the context of Chimni’s principle of subaltern internationalism. When viewed from the perspective of decolonisation and self-determination, jurisdiction pulls against Third World spaces for governance. Instead, it deploys jurisdiction as a limiting legal instrument. I suggest that mainstream international law has relied upon—exploited, even—the space between jurisdiction and sovereignty to withhold the full realisation of self-determination from developing states. Drawing on the case study of East Timor, the Comment examines the many faces of jurisdiction on the plane of mainstream international law.