Law Commons^™

Assessing The State Of State Constitutionalism, Jim Rossi

Vanderbilt Law School Faculty Publications

State constitutions are terribly important legal documents, but their interpretation is remarkably understudied (and, of course, highly undertheorized) in the academic literature. This review essay discusses Robert Williams’s welcome new book, The Law of American State Constitutions (Oxford University Press, 2009). After summarizing the content of Williams’s book, it discusses the normative significance of his work, focusing especially on his discussion of independent state constitutions and the positive theory of interpretation he advances. The essay concludes by highlighting some areas where the field of state constitutional law is in need of further advancement, including research that positions state constitutions within …

The Girl Next Door: A Comparative Approach To Prostitution Laws And Sex Trafficking Victim Identification Within The Prostitution Industry, Gail M. Deady

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

The results of our comparison of U.S. and Australian contracts offer some interesting contrasts with several earlier studies that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that U.S. CEOs' compensation is significantly higher than U.K. CEOs' compensation. What is interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in comparison to Australia. On the other hand, U.S. contracts are much more likely to include restricted stock and stock option features, which generally require payment after a CEO remains at the firm a fixed number of years, typically …

Standing On A Spectrum: Third Party Standing In The United States, Canada, And Australia, Gwendolyn Mckee

Barry Law Review

This article examines third party standing cases in the United States, Canada, and Australia. It demonstrates that third party standing can only be understood with reference to the role of modern courts in broad-based, constitutional style rights protection. This type of protection has been the main factor driving courts to create exceptions to the traditional standing requirements. It is only once these exceptions have been established that a court begins to consider allowing third party standing in cases that do not involve rights. The effects of this theory can be seen in the three countries examined in this article.

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.

Jurisdiction Issues In International Arbitration, Mitchell L. Lathrop

Global Business Law Review

Arbitration, and particularly international arbitration, involves jurisdictional issues beyond those normally encountered in traditional judicial proceedings. This article will describe prominent jurisdictional issues in international arbitration based on recent pronouncements of judicial and arbitral authorities. From effecting notice of the arbitration proceedings to the improper composition of the arbitral authority, this article will discuss jurisdictional issues that can arise at any time during an arbitration proceeding, and how they can affect the enforcement of an award.

Internet Contracting And E-Commerce Disputes: International And U. S. Personal Jurisdiction , Anne Mccafferty

Global Business Law Review

In cases involving international defendants, a variety of bases have been deemed appropriate for a U.S. court to assert personal jurisdiction, including nationality, domicile, “purposeful availment,” and a number of federal statutes. With the explosion of the Internet and the resulting expansion of international business transactions via the Web, courts have struggled to adapt traditional modes of adjudication consistent with established common, statutory and international law. Internet transactions—now known as e-commerce—involve the “practice of buying and selling goods and services through online consumer services on the Internet.” In a sphere of commerce apparently limitless in its reach, this article explores …

Symposium Introduction – Beyond Borders: Extraterritoriality In American Law, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Faculty Publications

The Sierra Leone war, which lasted between 1991 and 2002, gained notoriety around the world for “blood" or "conflict" diamonds and some of the worst atrocities ever perpetrated against civilians in a modern conflict. On January 16, 2002, the United Nations and the Government of Sierra Leone signed an historic agreement to establish the Special Court for Sierra Leone (SCSL). In setting up a new type of ad hoc criminal tribunal, the parties sought to achieve two key objectives. First, to dispense credible justice by enabling the prosecution of those bearing greatest responsibility for the wartime atrocities based on international …

Memorandum: Accommodating The Uccjea And The 1996 Hague Convention, Robert G. Spector

Oklahoma Law Review

No abstract provided.

Global Child Welfare: The Challenges For Family Law, Ann Laquer Estin

Oklahoma Law Review

No abstract provided.

Exit Costs -- A New Paradign For The Treatment Of International Conflicts Over Matrimonial Property Regimes?, David S. Rosettenstein

Oklahoma Law Review

No abstract provided.

'Til Death Do Us Part: Why Personal Jurisdiction Is Required To Issue Victim Protection Orders Against Nonresident Abusers, Bevan J. Graybill

Oklahoma Law Review

No abstract provided.

Undermining Kulko At Home And Abroad, John J. Sampson

Oklahoma Law Review

No abstract provided.

Common Procedural And Jurisdictional Pitfalls To Avoid In Practicing Before The Arkansas Supreme Court, Megan Hargraves

University of Arkansas at Little Rock Law Review

No abstract provided.

Morrison, The Effects Test, And The Presumption Against Extraterritoriality: A Reply To Professor Dodge, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

If You're Hurt, Where Is Home? Recently Drafted Minor League Baseball Players Are Compelled To Bring Workers' Compensation Action In Team's Home State Or In Jurisdiction More Favorable To Employers, James T. Masteralexis, Lisa P. Masteralexis

Marquette Sports Law Review

None.

New First Principles? Assessing The Internet’S Challenges To Jurisdiction, Teresa Scassa, Robert Currie

Articles, Book Chapters, & Popular Press

The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate “space” and many refer to state jurisdiction over Internet activities as “extraterritorial.” This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on …

Prosecuting Federal Crimes In State Courts, Michael G. Collins, Jonathan R. Nash

Faculty Articles

Despite the ancient maxim that the courts of one sovereign will not “execute the penal laws of another,” they sometimes do. For example, federal courts can hear state-law criminal prosecutions of federal officers for acts taken in the course of their duties that are brought initially in state court and are then removed to federal court. In addition, some states now open their courthouse doors to officials from other states to pursue tax enforcement actions against delinquent taxpayers. But states still do not (and perhaps cannot) entertain prosecutions of fugitives solely for crimes committed in another state because the Constitution …

The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis

Journal Articles

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, …

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

Faculty Works

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

International Law And The U.S. Common Law Of Foreign Official Immunity, Curtis A. Bradley, Laurence R. Helfer

Faculty Scholarship

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits “may still be barred by foreign sovereign immunity under the common law.” At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the …

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

Extraterritorial Intellectual Property Enforcement In The European Union, Marketa Trimble

Scholarly Works

This paper was prepared for the 2011 ABILA International Law Weekend – West volume of the Southwestern Journal of International Law. It addresses extraterritorial enforcement of intellectual property rights in the European Union. The maximum length of the paper was set by the Journal.

The problems associated with extraterritorial enforcement of intellectual property rights in the European Union (the “EU”) may be divided into three categories: enforcement of unitary EU-wide rights, enforcement of multiple national rights, and enforcement of rights based on one national law with extraterritorial effects on activities in other countries. Although these are three distinct categories of …

"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan

Scholarly Works

No abstract provided.

Crow Water Rights Settlement Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Title IV: Crow Tribe Water Rights Settlement - Crow Tribe Water Rights Settlement of 2010 in the Claims Resolution Act of 2010 (PL111-291| 124 Stat 3097). The Act ratifies, authorizes, and confirms the water rights 1999 Compact between the Crow Tribe and MT. The DOI Secretary shall promptly execute the Compact and comply with applicable environmental acts and regulations. The Act provides for: 1) the Tribe to a) rehabilitate and improve the Crow Irrigation Project; and b) Reclamation to construct the municipal, rural, and industrial water system; 2) creates a Project Management Committee made up of the Tribe, …

2009 Legislative And Juridical Developments In Telecommunications, Kamil Kosmala

Yearbook of Antitrust and Regulatory Studies

This article assesses the 2009 amendments to the Polish Telecommunications Law and the most significant executive regulations that have been passed in its context. The amendments are discussed considering their compliance with EU law, taking into account the rulings of the European Court of Justice on the conformity of some of the Polish provisions with the set of directives constituting the European telecommunications regulatory framework of 2002. The analyzed amendments relate to, in particular, the manner in which ex ante regulation should be implemented, the principles of telecoms services provision to end-users and the performance of state security and defense …

Bifurcation Of Civil Trials, John P. Rowley Iii, Richard G. Moore

University of Richmond Law Review

Despite its widespread and long-standing recognition as a valuable docket-control device, the bifurcation of issues in civil trials has generated considerable debate among legal scholars and judges. The state and federal courts both utilize bifurcation, andthe Supreme Court of Appeals in Virginia recognized the advantages of the procedural device as early as 1915. Nonetheless, authority for the bifurcation of issues in civil trials in Virginia has remained clouded. The Supreme Court of Virginia lifted at least some of the clouds when it decided Allstate Insurance Co. v. Wade, thereby rejecting the position taken in an amicus curiae brief filed …