Courts Commons^™

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 …

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 …

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

Cardozo Law Review

No abstract provided.

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.

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 …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

An Unfair Cross Section: Federal Jurisdiction For Indian Country Crimes Dismantles Jury Community Conscience, Alana Paris

Northwestern Journal of Law & Social Policy

Under the Sixth Amendment to the United States Constitution, federal jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under …

A Balanced Consideration Of The Federal Circuit’S Choice-Of-Law Rule, Jennifer E. Sturiale

Utah Law Review

The Federal Circuit’s jurisdiction is unique. Unlike the jurisdiction of all other U.S. courts of appeals, the Federal Circuit’s jurisdiction is defined not by its geographical boundaries, but rather by the subject matter of the original claims and compulsory counterclaims. The court has appellate jurisdiction over final decisions from all U.S. district courts if a plaintiff’s claim or a party’s counterclaim arises under the patent laws. From this unusual jurisdictional grant, the Federal Circuit has concluded that, as a policy matter, it should apply and develop its own law only if the legal issue pertains to patent law. For all …

Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky

Faculty Scholarship

No abstract provided.

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Law School News: Inside Rwu Law's Small 'Admiralty Empire' 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Scholarship

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …

Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove

Faculty Publications

A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This Article …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Stern Claims And Article Iii Adjudication - The Bankruptcy Judge Knows Best, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh

Osgoode Hall Law Journal

“General jurisdiction” refers to a court’s competence to adjudicate disputes arising out of a defendant’s activities anywhere in the world. Absent consent or submission, international instruments reserve general jurisdiction over corporations to the states in which the corporation has its registered office, centre of administration, or principal place of business. The bases of general jurisdiction under the Court Jurisdiction and Proceedings Transfer Act (CJPTA) are far broader and include simply having a place of business in the forum or even registering to carry on business there. This article locates the conceptual roots of the CJPTA approach in the traditional common …

Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker

Osgoode Hall Law Journal

In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force. Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction. In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada. This article provides …

Three Objections To Forum Of Necessity: Global Access To Justice, International Criminal Law, And Proper Party, Sagi Peari

Osgoode Hall Law Journal

In civil procedure, the plaintiff is the one who initiates the litigation process. In which forum can he or she initiate this process? In very general terms, the Canadian rules of judicial jurisdiction provide the plaintiff with three options for jurisdiction acquisition. First, the jurisdiction can be acquired based on explicit agreement between the plaintiff and the defendant as to the identity of the forum to adjudicate the case. Second, the plaintiff can initiate the litigation in the forum that has the so-called “real and substantial connection” between it and the parties’ specific interaction under the given ground of liability …

Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier

Osgoode Hall Law Journal

This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Hague Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court of Canada decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the …

Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin

Osgoode Hall Law Journal

Under section 6 of the CJPTA, a court may hear a case for which it lacks territorial competence under the statute if it is satisfied that: (1) there is no other court outside the province in which the plaintiff can commence the proceeding; or (2) the commencement of the proceeding outside the province cannot reasonably be required. Courts in provinces that have not enacted the CJPTA have grafted a similar discretion on to the common law rules of jurisdiction. This article seeks to determine the intentions of the drafters of the CJPTA in providing for this power and to discuss …

The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom

Osgoode Hall Law Journal

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia, and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …

Jurisdiction Motions And Access To Justice: An Ontario Tale, Gerard J. Kennedy

Osgoode Hall Law Journal

This article investigates the access to justice concerns surrounding jurisdiction motions in Ontario, having analyzed one hundred and forty-seven jurisdiction motions decided in Ontario between 2010 and 2015. The author challenges the previously expressed view that jurisdiction motions are presently being “abused” by defendants and their counsel. He also suggests that trends in jurisdiction motions this decade point to some improvement from an access to justice perspective. Nonetheless, jurisdiction motions are frequently presenting an impediment to access to justice, with uncertainty in the law likely being the primary reason for this. The author considers potential proposals to address the access …

Cross-Border Transfers Of Court Proceedings, Vaughan Black

Osgoode Hall Law Journal

The Court Jurisdiction and Proceedings Transfer Act might easily have been two statutes rather than one. There could have been a pair of uniform acts, one delineating the territorial competence of the provinces’ superior courts and the other implementing a regime for the cross-border transfer of court proceedings. After all, these two matters are neither logically interdependent nor especially tightly linked. Part 3 of the CJPTA, dealing with transfers of proceedings, is not confined to lawsuits where the initial court takes jurisdiction under Part 2. It applies regardless of whether the initial court bases its jurisdiction on the CJPTA or …

Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel

Osgoode Hall Law Journal

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.

The Federal–State Standing Gap: How To Enforce Federal Law In Federal Court Without Article Iii Standing, Peter N. Salib, David K. Suska

William & Mary Bill of Rights Journal

You, too, can sue Donald Trump under the Emoluments Clause!

Since Inauguration Day, several lawsuits have been filed against President Trump because of his refusal to divest certain assets. They assert that Trump’s business interests conflict with the Emoluments Clause of Article I. That arcane provision forbids certain federal officials from accepting any perquisite or gain from a foreign monarch or state. The suits contend, for example, that a foreign dignitary’s booking of a room at the Trump International Hotel in Washington, D.C. would constitute an unlawful emolument.

Most commentators quickly threw cold water on the prospect of any plaintiff …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Certification Of Legal Questions To The Utah Supreme Court, David Nuffer

Duke Law Master of Judicial Studies Theses

For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court.

The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to …