Jurisdiction Commons^™

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Questioning Quirin, Carl W. Tobias

Law Faculty Publications

Louis Fisher's new work, Nazi Saboteurs on Trial: A Military Tribunal and American Law3 (Nazi Saboteurs), and his valuable contribution to illuminating Ex parte Quirin merit scrutiny. In this Review, I first descriptively assess Nazi Saboteurs. The Review then treats the monograph's numerous beneficial features and ascertains that it enhances understanding of the important decision in Quirin. I conclude with several recommendations for future analysis of Quirin's impact.

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Faculty Publications

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches-which emphasize a Web site's "interactivity" and "target audience" -are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This article argues that courts should reinstitute …

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos

Faculty Scholarship

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …

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

ExpressO

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

Congress Gave And Congress Hath Taken Away:1 Jurisdiction Withdrawal And The Constitution, Travis Christopher Barham

Washington and Lee Law Review

No abstract provided.

After El-Shifa: The Extraterritorial Availability Of The Takings Clause, Nathaniel Segal

Cardozo Journal of International and Comparative Law

The note examines the extraterritorial application of the Fifth Amendment's Takings Clause to foreign nationals, focusing on the case of El-Shifa Pharmaceutical Industries Co. v. U.S.. It argues that the Takings Clause should apply to alien-owned property abroad, emphasizing natural rights theory and the influence of John Locke on U.S. constitutional law. The analysis critiques the U.S. Court of Federal Claims' dismissal of Salah Idris's claim, which denied compensation for the destruction of his pharmaceutical plant in Sudan during a U.S. military strike. The author advocates for extending the clause's protections to foreign property owners, aligning U.S. law with …

In The Wake Of Gratz V. Bollinger: Standing On Thin Ice, 38 J. Marshall L. Rev. 1037 (2005), Zubaida Qazi

UIC Law Review

No abstract provided.

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …

Avoidable Due Process Confusion: Special Use Hearings In Illinois After Klaeren, 38 J. Marshall L. Rev. 609 (2004), James C. Munson, Christi J. Guerrini

UIC Law Review

No abstract provided.

Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers

Seattle University Law Review

This Article focuses upon abstention in the context of the Federal Declaratory Judgment Act ("FDJA"). Part I will discuss the various forms of abstention and the historical progression and development of the abstention doctrine in federal case law, setting the background for the expansive holding in Huth v. Hartford Insurance Company of the Midwest. Part II of the article will discuss the procedural history of Huth and the respective rulings of the district court and the Ninth Circuit Court of Appeals as it relates to their application of the abstention doctrine. Part III will then analyze the numerous, and potentially …

The Secret Life Of The Political Question Doctrine, 37 J. Marshall L. Rev. 441 (2004), Louis Michael Seidman

UIC Law Review

No abstract provided.

Marbury V. Madison As The First Great Administrative Law Decision, 37 J. Marshall L. Rev. 481 (2004), Thomas W. Merrill

UIC Law Review

No abstract provided.

The Boundary Of Personal Jurisdiction: The "Effects Test" And The Protection Of Crazy Horse's Name, 38 J. Marshall L. Rev. 381 (2004), Scott Fruehwald

UIC Law Review

No abstract provided.

State Sovereign Immunity And The Plaintiff State: Does The Eleventh Amendment Bar Removal Of Actions Filed In State Court?, 38 J. Marshall L. Rev. 513 (2004), Virginia F. Milstead

UIC Law Review

No abstract provided.

Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004), Mark Tushnet

UIC Law Review

No abstract provided.

A Legacy Of Public Law 280: Comparing And Contrasting Minnesota’S New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin K. Washburn, Chloe Thompson

William Mitchell Law Review

Tribal court dockets across the country have been growing steadily, and tribal courts are becoming an important part of the judicial fabric of the United States. To acknowledge this reality, state courts and legislatures across the United States have begun to address the important issues of how and whether to recognize tribal court judgments in state courts. The Minnesota Supreme Court adopted a rule that took effect in January of 2004 that provides guidelines for the recognition and enforcement of tribal court orders and judgments. The Minnesota Supreme Court Rule on the Recognition and Enforcement of Tribal Court Orders and …

Aliens, The Internet, And "Purposeful Availment": A Reassessment Of Fifth Amendment Limits On Personal Jurisdiction, Wendy Collins Perdue

Georgetown Law Faculty Publications and Other Works

This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level. This Article is built on two …

Legislative Supremacy: Myth Or Reality?, James Oakes

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.