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University of Michigan Law School

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Articles 121 - 150 of 682

Full-Text Articles in Jurisdiction

The Czechoslovak Approach To The Draft Convention On Jurisdictional Immunitites Of States And Their Property, Vladimir Balaš, Monika Pauknerová Jan 1991

The Czechoslovak Approach To The Draft Convention On Jurisdictional Immunitites Of States And Their Property, Vladimir Balaš, Monika Pauknerová

Michigan Journal of International Law

This article deals with four issues: (1) The effort of the International Law Commission of the United Nations to codify jurisdictional immunity. (2) The theoretical and practical Czechoslovak approach toward the institution of jurisdictional immunity of States and the Draft Convention, and a prediction of possible change of the Czechoslovak view. (3) The changing views of East European scholars. (4) An analysis of particular provisions of the Draft Convention with respect to their acceptability by States with different socioeconomic systems and especially by Czechoslovakia.

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Coordinated Transnational Interaction In Civil Litigation And Arbitration, Peter F. Schlosser Jan 1990

Coordinated Transnational Interaction In Civil Litigation And Arbitration, Peter F. Schlosser

Michigan Journal of International Law

About fifteen years ago, an English shipowner chartered his vessel, the Mareva, to time charterers. After a while, the charterers discontinued payment on the charter and the shipowner instituted court proceedings against them. The plaintiff, concerned about the ability and willingness of the defendants to satisfy an expected judgment, simultaneously applied for a preliminary injunction restraining the defendants from disposing of a subcharter which had been paid into their London bank account. The injunction was granted. Since then, injunctions of this kind have been denominated "Mareva injunctions," although it was the second, rather than the first, case where such an …

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A Revisionist Theory Of Abstention, Barry Friedman Dec 1989

A Revisionist Theory Of Abstention, Barry Friedman

Michigan Law Review

This article offers a straightforward model for identifying cases in which abstention threatens federal rights - and so is inappropriate and cases in which federal rights are not so threatened and state interests require abstention. Part I provides some background on the abstention doctrines, clarifying· the competing premises that must be reconciled in order to develop a coherent, unified abstention doctrine. Part II then sets out the basis for the revisionist theory and the manner in which it would operate, arguing that a federal trial forum only need be - and only should be - available where necessary to protect …

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Going To Court, Internationally, Detlev F. Vagts May 1989

Going To Court, Internationally, Detlev F. Vagts

Michigan Law Review

A Review of The International Court of Justice at a Crossroads Edited by Lori Fisler Damrosch

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From Cutlass To Cat-O'-Nine Tails: The Case For International Jurisdiction Of Mutiny On The High Seas, George P. Smith Ii Jan 1989

From Cutlass To Cat-O'-Nine Tails: The Case For International Jurisdiction Of Mutiny On The High Seas, George P. Smith Ii

Michigan Journal of International Law

This article will first discuss the historical background of mutiny, describing several of the major mutinies at sea that have been of interest to legal historians. Then will come an analysis of the history of piracy and an exploration of its symbiotic relationship with mutiny. Subsequent analysis will be given over to municipal law provisions outlawing mutiny - with concentration placed on the postures taken by those nation-states which subscribe to or are guided by the common law. A study of those relevant principles of international law regarded as controlling, as a consequence of historical vectors of force and municipal …

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United States V. Palestine Liberation Organization: Continued Confusion In Congressional Intent And The Hierarchy Of Norms, Andrew R. Horne Jan 1989

United States V. Palestine Liberation Organization: Continued Confusion In Congressional Intent And The Hierarchy Of Norms, Andrew R. Horne

Michigan Journal of International Law

This Note concludes that while the court's rationale is disingenuous and misleading, the final decision was an appropriate reaffirmation of the importance which American jurisprudence places on international obligations. In Part One, this Note discusses whether the dispute resolution provisions of the Headquarters Agreement precluded the district court's jurisdiction over the parties and subject matter of this case. Part Two examines the constitutional hierarchy of the ATA and the Headquarters Agreement to determine which should govern this dispute. If the court had concluded that it lacked jurisdiction, the case would have been dismissed from the U.S. court system, leaving the …

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Jurisdiction Over Foregin Flag Vessels And The U.S. Courts: Adrift Without A Compass?, Stefan A. Riesenfeld Jan 1989

Jurisdiction Over Foregin Flag Vessels And The U.S. Courts: Adrift Without A Compass?, Stefan A. Riesenfeld

Michigan Journal of International Law

Jurisdiction of a nation over vessels flying a foreign flag and over persons aboard such vessels should be a relatively simple and well settled matter. The sad fact, however, is that it is not. Moreover, the recent 1986 Maritime Drug Law Enforcement Act has added unnecessary and unexplainable confusion.

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Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo Jan 1989

Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo

Michigan Journal of International Law

This Note examines the rationales behind Filartiga and other cases which have had the opportunity to pass upon its holding, notably the holdings in Tel-Oren v. Libyan Arab Republic and Forti v. Suarez- Mason. It then focuses on the validity of these rationales with respect to the constitutional separation of powers scheme. In so doing, it analyzes Filartiga's conclusions in light of the act of state and political question doctrines, two closely interrelated doctrines which have been at the forefront of the separation of powers criticisms of Filartiga. This Note concludes by suggesting that a clear case exists …

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The Changing Process Of International Law And The Role Of The World Court, J. Patrick Kelly Jan 1989

The Changing Process Of International Law And The Role Of The World Court, J. Patrick Kelly

Michigan Journal of International Law

Two approaches have emerged in recent American literature as to the appropriate United States attitude toward the World Court: (1) the re-acceptance of compulsory jurisdiction with various reservations to preserve vital American interests; and (2) the preservation of the status quo premised on a perception that the World Court is biased or misguided, while promoting the United States government's perspective on international law. This article argues that neither approach comes to terms with the wide disagreements about content and process in the international community. Both fail to promote the goals of an enhanced World Court or a better international legal …

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Divided We Fall: Associational Standing And Collective Interest, Heidi Li Feldman Dec 1988

Divided We Fall: Associational Standing And Collective Interest, Heidi Li Feldman

Michigan Law Review

This Note asserts that associations merit standing when they seek to litigate collective interests they reasonably claim as theirs. Part I of this Note examines the state of judicial doctrine on associational standing, and illustrates how current doctrine hampers associations by refusing to recognize, and thus protect, interests that fit naturally with those the Supreme Court has regarded as associational. Part II reworks the concept of associational standing by formalizing collective interest and arguing for the association as the appropriate legal representative of such interest. Finally, Part III addresses the separation of powers concerns raised by a reworked concept of …

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Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan Jan 1987

Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan

Articles

What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …

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Federal Venue Under Section1392(A): The Problem Of The Multidistrict Defendant, Brent E. Johnson Nov 1986

Federal Venue Under Section1392(A): The Problem Of The Multidistrict Defendant, Brent E. Johnson

Michigan Law Review

This Note argues that a broad construction of section 1392(a) which would allow Aunt Bea to bring suit in the Southern District of California where Mayberry alone resides is preferable to a narrow construction which would restrict Bea to the Northern District where both defendants reside. Part I of this Note maintains that the language of section 1392(a) is ambiguous and does not indicate the clear intent of Congress, despite assertions to the contrary by proponents of both the broad and narrow constructions of the statute. Part II demonstrates that a superficially relevant Supreme Court decision tending to support the …

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Tribal Court Jurisdiction Over Civil Disputes Involving Non-Indians: An Assessment Of National Farmers Union Insurance Cos. V. Crow Tribe Of Indians And A Proposal For Reform, Allison M. Dussias Oct 1986

Tribal Court Jurisdiction Over Civil Disputes Involving Non-Indians: An Assessment Of National Farmers Union Insurance Cos. V. Crow Tribe Of Indians And A Proposal For Reform, Allison M. Dussias

University of Michigan Journal of Law Reform

This Note examines the issue of tribal court jurisdiction over cases in which both Indians and non-Indians are parties and discusses the Supreme Court's most recent statement on the issue. In National Farmers Union Insurance Cos. v. Crow Tribe of Indians, an Indian minor brought a personal injury action in Crow Tribal Court against a Montana school district operating a school on state-owned land within the Crow Reservation. The Supreme Court concluded that the tribal court itself should first determine whether it has the power to exercise civil subject-matter jurisdiction over non-Indian property owners in a tort case. Defendants …

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Erisa: To Sue Or Not To Sue-A Question Of Statutory Standing, Constance L. Bauer Oct 1985

Erisa: To Sue Or Not To Sue-A Question Of Statutory Standing, Constance L. Bauer

University of Michigan Journal of Law Reform

This Note examines the conflicting authority regarding the scope of section 502(a) of ERISA. There is a fundamental split among the United States Courts of Appeals concerning whether parties not specifically enumerated in section 502(a) have standing to bring civil actions to enforce ERISA's provisions. The Ninth Circuit has held consistently that non-enumerated parties are entitled to sue under ERISA. The Second Circuit, however, repeatedly has held that parties not explicitly specified in section 502(a). do not have standing to bring an action under the Act. This Note addresses the question of whether employers and pension funds, as non-enumerated parties, …

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Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review Dec 1984

Claims Of Dual Nationals In The Modern Era: The Iran-United States Claims Tribunal, Michigan Law Review

Michigan Law Review

This Note will discuss the considerations, implicit in the Tribunal's opinion, that support substituting the doctrine of dominant and effective nationality for the rule of state nonresponsibility in cases involving claims of dual nationals. Part I of this Note briefly examines the traditional framework of diplomatic protection and demonstrates that the policies supporting the doctrine of state nonresponsibility are anachronistic and that strict adherence to them leads to inequitable results. Part II argues that the doctrine of dominant and effective nationality is the preferred standard for determining the status of dual national claims. At the core of this doctrine is …

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Judicial Jurisdiction In The United States And In The European Communities: A Comparison, Friedrich Juenger May 1984

Judicial Jurisdiction In The United States And In The European Communities: A Comparison, Friedrich Juenger

Michigan Law Review

Eric Stein deserves our gratitude for making European integration accessible to American students and teachers. He has taught and written widely on this important subject, and the casebook he published with Hay and Waelbroeck is a valuable aid for dispelling what a judge of the Communities' Court of Justice called "splendid mutual ignorance." Following Judge Pescatore's suggestion that it is time to take note of the experience gathered on both sides of the Atlantic, it seems worthwhile to compare the evolution of jurisdictional principles in the United States and in the Common Market.

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The Case For Federalizing Rules Of Civil Jurisdiction In The European Community, Peter Hay May 1984

The Case For Federalizing Rules Of Civil Jurisdiction In The European Community, Peter Hay

Michigan Law Review

The European Community is an "incipient federal structure," even if its scope of operation is limited in subject matter and its creation derives from "a network of treaties rather than [from] a formal constitution." A federal structure at once protects, even nurtures, pluralism and coordinates the constituent units in the interest of a union. Federal legislation promotes the interests of the larger unit; a limitation of powers in the constitutive document preserves the integrity of the members. In the American federation, the United States Supreme Court defines the balance between the reach of state and federal law. The balance, moreover, …

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From Swift To Erie: An Historical Perspective, Gene R. Shreve Feb 1984

From Swift To Erie: An Historical Perspective, Gene R. Shreve

Michigan Law Review

A Review of Harmony & Dissonance: The Swift & Erie Cases in American Federalism by Tony Freyer

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The Contours Of Extraterritorial Jurisdiction In Drug Smuggling Cases, Stephen E. Chelberg Jan 1983

The Contours Of Extraterritorial Jurisdiction In Drug Smuggling Cases, Stephen E. Chelberg

Michigan Journal of International Law

This note examines the contours of U.S. jurisdiction over drug smugglers on the high seas. After a brief discussion of the two principal U.S. drug statutes, the note considers the territorial and protective principles of jurisdiction as defined by U.S. courts. Controversy currently centers around whether U.S. drug laws apply to foreign ships, carrying controlled substances on the high seas, where there has been no showing of an intent to import the drugs into the United States.

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Jurisdictional Bases For Criminal Legislation And Its Enforcement, B.J. George Jr. Jan 1983

Jurisdictional Bases For Criminal Legislation And Its Enforcement, B.J. George Jr.

Michigan Journal of International Law

The doctrine of jurisdiction-the authority of nations or states to create or prescribe penal or regulatory norms and to enforce them through administrative and judicial action- has been a source of difficulty in both international and domestic law for centuries. The last two decades, however, have witnessed more conflicts over the invocation of forum penal laws to reach persons and activities outside national boundaries than had arisen for more than a century before. Moreover, treaties restricting some dimensions of penal jurisdiction based on other than the territorial concept have become increasingly common, and some nations have legislated to prevent their …

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I. Review Of Foreign Laws, Michigan Journal Of International Law Jan 1983

I. Review Of Foreign Laws, Michigan Journal Of International Law

Michigan Journal of International Law

The selection of national law summaries which follows is designed to enable the reader to survey the spectrum of domestic laws governing jurisdiction and judicial assistance. The reader may also find the summaries to be a useful starting point for further research. While the summaries vary somewhat in scope and degree of specificity, the differences are attributable to a desire to provide reasonably authoritative-rather than speculative- synopses of the law.

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Index, Michigan Journal Of International Law Jan 1983

Index, Michigan Journal Of International Law

Michigan Journal of International Law

Index of terms used in this volume.

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The War On Diversity, John W. Reed Jan 1983

The War On Diversity, John W. Reed

Other Publications

Over the past decade or more there have been strong pressures to abolish the diversity jurisdiction of the federal courts. With the strong backing of the prestigious American Law Institute and many scholars, and with the support of the Chief Justice, Senator Kennedy, and others, specific proposals have been introduced in Congress, have been discussed at enormous length, and have passed one or the other House but not both. At the moment, therefore, we still have diversity jurisdiction, and it is safe to predict that abolition of diversity will not occur during the present session of Congress. Nevertheless, the long-term …

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Federal Jurisdiction: The Perils And Rewards Of Pulling Things Together, Gene R. Shreve Mar 1982

Federal Jurisdiction: The Perils And Rewards Of Pulling Things Together, Gene R. Shreve

Michigan Law Review

A Review of Federal Jurisdiction: Tensions in the Allocation of Judicial Power by Martin H. Redish

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Legitimate Interests In Multistate Problems: As Between State And Federal Law, Lea Brilmayer Jun 1981

Legitimate Interests In Multistate Problems: As Between State And Federal Law, Lea Brilmayer

Michigan Law Review

This Article examines that common ground, analyzing the roles of state policy interests and contacts in defining constitutional limits. It concentrates particularly on one paradoxical aspect of the interaction between federal and state law. While the scope of constitutional limits on application of forum law is necessarily a federal issue, constitutional analysis simultaneously defers in some unspecified way to state policy. This is because federal choice-of-law questions frequently tum on the existence of a state policy interest that legitimizes the application of state law. The resulting interdependence of the federal and state issues would seemingly empower state legislatures and courts …

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Bankruptcy Court Jurisdiction To Modify Alimony Payments Of Chapter 13 Debtors, Peter Swiecicki Apr 1981

Bankruptcy Court Jurisdiction To Modify Alimony Payments Of Chapter 13 Debtors, Peter Swiecicki

University of Michigan Journal of Law Reform

This article examines a bankruptcy court's power to modify a chapter 13 debtor's alimony payments. Part I discusses the bankruptcy court's jurisdiction in chapter 13 cases and the connection between the chapter 13 case and alimony modification proceedings. It then outlines the domestic relations limitation and the resulting conflict between bankruptcy courts and state courts with respect to alimony modification. Part II analyzes various arguments for and against allowing bankruptcy courts to hear alimony modification requests in chapter 13 cases. This analysis reveals that any state interests are far outweighed by the substantial benefits to be gained from consolidating the …

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After "Life For Erie--A Reply, Peter Westen May 1980

After "Life For Erie--A Reply, Peter Westen

Michigan Law Review

Erie, having "preoccupied the intellectually dominant group of academic lawyers rising to maturity during the 1940's and 1950's," is reported to be losing its "symbolic centrality" for the newest generation of legal scholars. Professor Redish's prompt and excited response to our essay proves one thing: there is at least one scholar in the country who, having come to legal maturity during the last decade, still remains capable of becoming impassioned about Erie RR v. Tompkins.

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Personal Jurisdiction And Choice Of Law, James Martin May 1980

Personal Jurisdiction And Choice Of Law, James Martin

Michigan Law Review

The time has come for the Supreme Court to declare that a state may not apply its own law to a case unless it has the "minimum contacts" required by International Shoe for the exercise of specific personal jurisdiction over the defendant. Although the present state of the law is less than certain, the Supreme Court has not yet required that a state show it has minimum contacts with a defendant before applying its law. As a result, in some cases where a state has obtained personal jurisdiction because of a defendant's contacts unrelated to the case - contacts such …

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Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish May 1980

Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish

Michigan Law Review

Although the Supreme Court has not spoken in detail on the Erie doctrine since its much-discussed decision in Hanna v. Plumer in 1965, commentary on the doctrine in the literature has undergone something of a "boomlet" in the last several years. Much of it has been stimulated by the groundbreaking article by Professor John Hart Ely in 1974. The latest contribution to the area is the recent article by Professor Peter Westen and Mr. Jeffrey Lehman appearing earlier this year in this journal. Unfortunately, their article does little to advance analysis of the Erie question, and contains numerous fundamental misstatements …

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Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman Jan 1980

Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman

Michigan Law Review

This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …

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