Jurisdiction Commons^™

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Justice & Foreign Affairs: Taking The European Neighbourhood Partner Countries To The European Court Of Justice, Lior Zemer, Sharon Pardo

Cardozo Journal of International and Comparative Law

The article argues that the European Union (EU) should extend the jurisdiction of the European Court of Justice (ECJ) to cover disputes arising from agreements with Neighborhood Partner Countries (NPC) under the European Neighbourhood Policy (ENP). This extension is essential for upholding the EU's constitutional principles, ensuring judicial review, and maintaining the coherence of EU external relations. The authors advocate for the ECJ as the most suitable judicial forum to address these disputes, emphasizing its role in reinforcing the EU's legal identity and capacity building.

Multi-Tiered Marriage: Ideas And Influences From New York And Louisiana To The International Community, Joel A. Nichols

ExpressO

This Article contends that American society needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end -- both within and without the United States -- which might serve as the framework for further discussions.

Within the United States, the relatively new covenant marriage …

Essay For The In-Print Symposium On The Myth Of Moral Justice, Stuart A. Scheingold

Cardozo Public Law, Policy & Ethics Journal

Stuart Scheingold responds to Thane Rosenbaum's The Myth of Moral Justice, agreeing with the aspiration to infuse law with moral imagination but critiquing Rosenbaum's oversight of existing moral energy within the legal profession, particularly through cause lawyering. Scheingold argues that Rosenbaum's approach is overly simplistic, failing to account for institutional obstacles and the contested nature of moral discourse, which can lead to conflict rather than harmony. He emphasizes that while moral advocacy, as seen in cause lawyering, can drive positive change, it also faces significant challenges and backlash.

"Never Again" Promise Broken Again. Again. And Again., Kelly Dawn Askin

Cardozo Law Review

No abstract provided.

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S. I. Strong

Faculty Publications

Britain's Lord Denning once said that “as a moth is drawn to the light, so is a litigant drawn to the United States.” Certainly, as a pro-arbitration state and a signatory to various international conventions concerning the enforcement of foreign arbitral awards, the United States seems a natural place to bring an action to enforce an arbitral award against a foreign state or state agency. However, suing a sovereign has not traditionally been a simple task in the United States or elsewhere. Most nations grant foreign states the presumption of immunity, thus denying that their domestic courts have jurisdiction to …

Two Paradigms Of Jurisdiction, Ralf Michaels

Michigan Journal of International Law

Globalization causes convergence of legal orders. Or so it is argued. Law and economics scholars predict that legal orders will move towards the same efficient end state. They argue that the requirements of globalization will pressure legal orders to converge on the level of economic efficiency, because regulatory competition between legal orders makes it impossible for individual legal systems to maintain suboptimal solutions. Many comparative lawyers predict a similar convergence. In particular traditional functionalist comparatists have long held that unification of law was both desirable and unavoidable. Their basic argument is based on functional equivalence and can be summarized as …

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto

San Diego International Law Journal

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures an implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms-law enforcement and conflict management. Part III oves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. This part offers a discussion of the …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

ExpressO

No abstract provided.

"Strangers In A Strange Land" -- Transnational Litigation, Foreign Judgment Recognition, And Enforcement In Ontario, Antonin I. Pribetic

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Lessons For The Hague: Internet Jurisdiction In Contract And Tort Cases In The European Community And The United States, 23 J. Marshall J. Computer & Info. L. 1 (2004), Moritz Keller

UIC John Marshall Journal of Information Technology & Privacy Law

With the increasing use of the Internet, all on-line users, web site owners, e-commerce companies and consumers alike, feel the need to be able to rely on clear standards for a potential contract or tort lawsuit following the Internet presence that could lead to multinational litigation. This goal could be achieved if the negotiations of the Hague Convention on international jurisdiction and enforcement of foreign judgments in civil and commercial matters succeed in harmonizing the rules of the different legal systems around the globe, or at least create a minimum standard for legal cases which would benefit greatly e-commerce and …

The Past Is Another Country: Against The Retroactive Applicability Of The Foreign Immunities Act To Pre-1952 Conduct, 37 J. Marshall L. Rev. 1337 (2004), Andrzej R. Niekrasz

UIC Law Review

No abstract provided.

Global Antitrust Enforcement: The Sherman Act Does Not Apply Without Any Direct Domestic Effect, But Discovery Assistance May Be Available To Aid A Foreign Tribunal, According To The U.S. Supreme Court, 38 J. Marshall L. Rev. 495 (2004), Sue Ann Mota

UIC Law Review

No abstract provided.

Belgium's Universal Jurisdiction Law: Vindication Of International Justice Or Pursuit Of Politics?, Malvina Halberstam

Cardozo Law Review

No abstract provided.

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger

Law Faculty Scholarly Articles

In May 2000, a French court decided that a French law banning the display of Nazi materials for sale applies to an auction website hosted by the California-based company Yahoo! Inc. The following year, at the request of Yahoo! Inc., a U.S. District Court declared that the French judgment was unenforceable in the United States because enforcing it would violate an important public policy-the First Amendment. These two cases have attracted considerable attention because they crystallize a difficult problem. The Internet is global. Every website potentially reaches every home on the planet. Thus, website content or activity that may be …

Criminal Jurisdiction Under The U.S.-Korea Status Of Forces Agreement: Problems To Proposals, Yoon-Ho Alex Lee

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Multilateral Management As A Fair Solution To The Spratly Disputes, Wei Cui

All Faculty Publications

The Spratlys are a scattered group of islands in the South China Sea over which China, the Philippines, Vietnam, Malaysia, and Brunei have made conflicting jurisdictional claims. Although there has been significant academic discussion of this dispute, the Author argues that much of it is hampered by a discourse obsessed with the regional balance of power and security-related strategies that are only tenuously related to each nation's specific legal claims in the Spratlys. In this Article, the Author suggests that a more productive approach to the Spratly disputes is one focused on finding a solution that is fair to all …

The Draft Hague Convention On Jurisdiction And Enforcement Of Judgments And The Internet-A New Jurisdictional Framework, 36 J. Marshall L. Rev. 223 (2002), Kristen Hudson Clayton

UIC Law Review

No abstract provided.

An International Antitrust Dilemma: An Analysis Of The Interaction Of Antitrust Laws In The United States And The European Union, 36 J. Marshall L. Rev. 271 (2002), Sandra Ferson Young

UIC Law Review

No abstract provided.

Recognition And Enforcement Of Foreign Judgments In The United States: The Need For Federal Legislation, 37 J. Marshall L. Rev. 229 (2003), Violeta I. Balan

UIC Law Review

No abstract provided.

A Choice Among Values: Theoretical And Historical Perspectives On The Defence Of Necessity, Benjamin Berger

Articles & Book Chapters

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a …

Organized Corporate Criminality: The Creation Of A Organized Crime Smuggling Market: Tobacco Smuggling Between Canada And The Us, Margaret E. Beare

Articles & Book Chapters

The intention of this paper is to serve in part as a warning to the international community concerned about corruption, to keep the focus based on the critical analysis of empirically verifiable information. In ways similar to how theorists spoke about organized crime in the 1960s and 1970s, articles today attempt to refer to corruption as if there were one agreed upon definition. However, like the concept “organized crime”, the term “corruption” involves diverse processes which have different meanings within different societies. Corruption (or a focus on corruption), may be the means toward very diverse ends and each may have …