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Articles 31 - 60 of 67
Full-Text Articles in Jurisdiction
Fighting The Probate Mafia: A Dissection Of The Probate Exception To Federal Court Jurisdiction, Peter Nicolas
Fighting The Probate Mafia: A Dissection Of The Probate Exception To Federal Court Jurisdiction, Peter Nicolas
Articles
Despite the complexity and confusion surrounding the probate exception to federal court jurisdiction-or perhaps because of it-it has been given scant attention in the literature. This Article seeks to fill the gap. Part II of this Article sets forth the current application of the probate exception in the lower federal courts. Part III of this Article examines the statutory and constitutional constraints on the federal courts' exercise of subject matter jurisdiction over probate and probate related matters. Part III concludes that the probate exception is a mere gloss on the statutory grants of subject matter jurisdiction to the federal courts …
In Rem Jurisdiction In Cyberspace, Thomas R. Lee
In Rem Jurisdiction In Cyberspace, Thomas R. Lee
Washington Law Review
"Cyberpirates" incorporating variations on famous trademarks in Internet domain names often attempt to insulate themselves from service of process by providing false and incomplete information in registration materials. Holders of prominent trademarks are often left without an effective remedy because of the logistical difficulty of identifying cyberpirates and personally serving a multitude of complaints in far-flung jurisdictions. This Article examines a potential solution to the problem, whereby the trademark holder files an in rem action against the Internet domain names themselves on the theory that domain names incorporating their famous trademarks violate the Lanham Act and are subject to cancellation …
The Use Of Preclusion Doctrine, Antisuit Injunctions, And Forum Non Conveniens Dismissals In Transnational Intellectual Property Litigation, Peter Nicolas
Articles
Conflicting standards among the federal circuits over the applicability of inherent powers in the transnational intellectual property context and the divided authority regarding the jurisdiction of U.S. federal courts over foreign intellectual property claims severely hamper the ability of federal district courts to use these tools in such a manner so as to prevent parties in transnational intellectual property suits from engaging in strategic behavior. This Comment seeks to reconcile these conflicts where possible and, where irreconcilable, to demonstrate that the text and history of federal statutes conferring subject matter jurisdiction on federal courts and placing limits on their issuance …
Forum Selection Agreements In The Federal Courts After Carnival Cruise: A Proposal For Congressional Reform, Patrick J. Borchers
Forum Selection Agreements In The Federal Courts After Carnival Cruise: A Proposal For Congressional Reform, Patrick J. Borchers
Washington Law Review
Once the object of American judicial loathing, forum selection agreements recently have enjoyed a far more favored status. Forum selection agreements promote certainty in commercial relationships and reduce transaction costs arising from litigation of threshold issues such as personal jurisdiction and venue. In 1988, in Stewart Organization, Inc. v. Ricoh, the Supreme Court confused several central issues, including whether state or federal law governs enforcement in diversity actions, the mechanism for enforcing forum selection agreements, and the consequences of seeking to enforce an agreement by transferring the matter from one federal court to another. More recently, in Carnival Cruise Lines, …
Is 28 U.S.C. § 1404(A) A Federal Forum-Shopping Statute?, Michaael B. Rodden
Is 28 U.S.C. § 1404(A) A Federal Forum-Shopping Statute?, Michaael B. Rodden
Washington Law Review
In 1948, Congress enacted section 1404(a) of Tit;e 28 to allow transfers between federal district courts. Congress intended the statute to promote convenience in the federal courts. The statute does not specify which state's law applies following a transfer, but in 1964, in Van Dusen v. Barrack, the Supreme Court determined that the state law of the transferor court must apply following defendant-initiated transfers. The Van Dusen Court reasoned that application of the statute should promote convenience and uniformity and discourage forum-shopping in the federal courts. In 1990, in Ferens v. John Deere Co., the Supreme Court held that the …
An Easy Case Makes Bad Law—Burnham V. Superior Court Of California, 110 S. Ct. 2105 (1990), Robert Taylor-Manning
An Easy Case Makes Bad Law—Burnham V. Superior Court Of California, 110 S. Ct. 2105 (1990), Robert Taylor-Manning
Washington Law Review
In Burnham v. Superior Court of California, the United States Supreme Court considered the continued vitality of transient jurisdiction. Although the Court unanimously held that the defendant was subject to state court jurisdiction, it failed to agree on the issue of transient jurisdiction, issuing three plurality opinions. This Note examines Burnham and concludes that the Court should invalidate transient jurisdiction as a violation of due process rights. It proposes that the Court evaluate all state court assertions of jurisdiction against a minimum contacts standard.
Forum-Selection Clauses: Should State Or Federal Law Determine Validity In Diversity Actions?—Stewart Organization, Inc. V. Ricoh Corp., 108 S. Ct. 2239 (1998), Eric Fahlman
Washington Law Review
Forum-selection clauses are contractual provisions that confine future litigation to particular courts. Such clauses are common in interstate contracts despite uncertainty concerning their validity. Before Stewart Organization, Inc. v. Ricoh Corp., the circuit courts were divided as to whether federal courts with diversity jurisdiction were compelled to determine forum-selection clause validity in accordance with state law, as directed by Erie R.R. Co. v. Tompkins. In Stewart, the United States Supreme Court ruled that federal courts did not have to apply state law. Instead, the court held that the federal transfer statute, 28 U.S.C. § 1404(a), governed forum-selection clause validity. A …
Supreme Court Voting Patterns Related To Jurisdictional Issues, John R. Leathers
Supreme Court Voting Patterns Related To Jurisdictional Issues, John R. Leathers
Washington Law Review
The past decade of development by the United States Supreme Court of constitutional law related to jurisdiction has been one of amazingly swift occurrences. Although progress in the area has traditionally been glacial, the Court has produced a consistent flow of opinions over the last ten years. With the flow has come a virtual flood of commentary. A consensus is emerging among scholars, perhaps shared by some members of the Court, that the current developmental framework for judicial jurisdiction dating from International Shoe Co. v. Washington may be ripe for revamping, and that the process may produce a new framework. …
The Parental Kidnaping Prevention Act: Is There An Enforcement Role For The Federal Courts?, Ann T. Wilson
The Parental Kidnaping Prevention Act: Is There An Enforcement Role For The Federal Courts?, Ann T. Wilson
Washington Law Review
The number of divorced parents has increased dramatically since 1970. Consequently, the number of custody disputes has risen. In our increasingly mobile society, it is not surprising that many of these disputes occur across state lines. Extended litigation creates additional uncertainty and instability for children involved in these disputes. In response to this growing problem, Congress enacted the Parental Kidnapping Prevention Act of 1980 (PKPA). The PKPA requires that state courts enforce and not modify the child custody determinations of other states. The duty to enforce arises if the initial custody determination meets certain conditions. 6 Despite the existence of …
Sin, Scandal, And Substantive Due Process: Personal Jurisdiction And Pennoyer Reconsidered, Wendy Collins Perdue
Sin, Scandal, And Substantive Due Process: Personal Jurisdiction And Pennoyer Reconsidered, Wendy Collins Perdue
Washington Law Review
As part of the attempt to understand modem doctrine, this article first reexamines Pennoyer v. Neff. This reexamination goes beyond the Supreme Court opinion and looks both at the underlying story of the case and the lower court opinion. The story of Pennoyer v. Neff is of considerable interest in and of itself. The cast of characters includes a bigamous United States Senator who was elected under an alias, a governor of Oregon who used his inauguration as a platform to decry his loss in the case, and an illiterate but litigious settler. In addition, the lower court opinion, all …
Rethinking The Act Of State Doctrine: An Analysis In Terms Of Jurisdiction To Prescribe, David C.K. Chow
Rethinking The Act Of State Doctrine: An Analysis In Terms Of Jurisdiction To Prescribe, David C.K. Chow
Washington Law Review
This article proposes a new conception of the act of state doctrine. The basic approach of this new conception is that the act of state doctrine should be analyzed in terms of international law principles governing a sovereign state's jurisdiction to prescribe rules of law. As used here, jurisdiction to prescribe refers to the appropriate authority of a state "to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things." In analyzing questions of prescriptive jurisdiction, this article employs the useful and important approach set forth by the recently adopted Restatement …
Quest For A Bright Line Personal Jurisdiction Rule In Contract Disputes—Burger King Corp. V. Rudzewicz, 105 S. Ct. 2174 (1985), Paul Eric Clay
Quest For A Bright Line Personal Jurisdiction Rule In Contract Disputes—Burger King Corp. V. Rudzewicz, 105 S. Ct. 2174 (1985), Paul Eric Clay
Washington Law Review
The United States Supreme Court has returned to a personal jurisdiction methodology similar to that used a century ago. Under the traditional nineteenth century doctrine, the Court applied concrete and mechanical rules in jurisdiction disputes. With increased social mobility and technological advancements, however, these rules became inadequate. Responding to the deficiencies of its doctrine, the Supreme Court formulated a flexible test for personal jurisdiction in International Shoe Co. v. Washington. Gradually, the Court's flexible test turned into a vague doctrine, incapable of consistent application by lower courts. The inconsistency caused by the Court's rule also affected businesses that desired predictability …
Personal Jurisdiction In The Post-World-Wide Volkswagen Era—Using A Market Analysis To Determine The Reach Of Jurisdiction, Gregory Trautman
Personal Jurisdiction In The Post-World-Wide Volkswagen Era—Using A Market Analysis To Determine The Reach Of Jurisdiction, Gregory Trautman
Washington Law Review
This Comment proposes that courts should apply a market analysis to all "stream of commerce" cases. The proper question in such cases is whether the market for the defendant manufacturer's or dealer's products includes the forum state. If so, the defendant should be subject to jurisdiction in the forum state. The Comment begins with a look at the recent history of the doctrine of personal jurisdiction. It then proposes a market analysis approach as an alternative to the rigid unilateral contacts test, and discusses the market analysis approach in the context of several recent consumer-based contact cases. Finally, the Comment …
Implied Limitation On The Jurisdiction Of Indian Tribes, Richard B. Collins
Implied Limitation On The Jurisdiction Of Indian Tribes, Richard B. Collins
Washington Law Review
In 1978 the Supreme Court in Oliphant v. Suquamish Indian Tribe held that the retained sovereignty of Indian tribes over tribal reservations does not include the power to punish non-Indians who commit offenses against tribal law.' Based on a number of facts and premises, the Court concluded that it had been assumed from the beginning that the tribes lack this authority except where expressly recognized or conferred by treaty provision or act of Congress. The Court also relied on the fact that during the formative years few Indian tribes had the governmental structure necessary to comply with Anglo-American requirements of …
Tribal Preemption, Eric R. Biggs
Tribal Preemption, Eric R. Biggs
Washington Law Review
This comment analyzes the sources for the tribal preemption doctrine and the application of the doctrine. Because preemption necessarily involves a conflict between entities which seek to assert jurisdiction over the same subject matter, the general contours of jurisdiction over Indians must first be examined. The comment then discusses the federal preemption doctrine in order to explain more fully the aspects of tribal preemption which rest upon federal preemption. After an examination of how tribal preemption is applied in various settings, the comment will briefly look at the possibilities of partial tribal preemption. Finally, the comment concludes that a two-step …
Jurisdiction To Zone Indian Reservations, Robert D. Wilson-Hoss
Jurisdiction To Zone Indian Reservations, Robert D. Wilson-Hoss
Washington Law Review
This comment will examine one of the most critical aspects of the civil jurisdiction issue—tribal jurisdiction to exercise land use planning and zoning control. With such jurisdiction, a tribe may regulate or prohibit the development of reservation lands, and thus exercise a measure of control over the future of its reservation. Without zoning jurisdiction, most tribes would be forced to submit to the judgments of non-Indians about the uses of reservation lands. An introduction to the history and patterns of land ownership on Indian reservations is important to an understanding of the clashes between Indian and non-Indian reservation residents. Equally …
Washington's Public Law 280, Jurisdiction On Indian Reservations, Allan Baris
Washington's Public Law 280, Jurisdiction On Indian Reservations, Allan Baris
Washington Law Review
In April 1977 a Ninth Circuit panel in Yakima I 5 ruled that R.C.W. ch. 37.12 violates the equal protection clause of the fourteenth amendment. The Supreme Court, in accepting review, has instructed the parties to prepare briefs on both the equal protection challenge and the issue of Washington's compliance with PL-280.17 Several Washington tribes have contended that R.C.W. ch. 37.12 fails to comply with PL-280 because (1) Washington failed to amend its constitution in order to remove a disclaimer of jurisdiction on Indian lands 18 and (2) PL-280 does not permit the assumption of partial jurisdiction by a state. …
Jurisdiction—A Methodological Analysis: Implications For Presence And Domicile As Jurisdictional Bases—Shaffer V. Heitner, 433 U.S. 186 (1977), Steven E. Cummings
Jurisdiction—A Methodological Analysis: Implications For Presence And Domicile As Jurisdictional Bases—Shaffer V. Heitner, 433 U.S. 186 (1977), Steven E. Cummings
Washington Law Review
A shareholder in Greyhound Corporation, a Delaware corporation, brought a derivative action against corporate officers and directors alleging that certain actions by the defendants in Oregon had caused substantial harm to the corporation. The suit was initiated in a Delaware state court with jurisdiction based only on the statutory presence of property in that state. The defendants contested this attempt to assert quasi in rem jurisdiction on due process and other grounds, but their arguments were rejected by the trial court and the Delaware Supreme Court. The United States Supreme Court reversed. Held: The minimum contacts test developed in International …
Formalism And Nonformalism In Choice Of Law Methodology, William C. Powers, Jr.
Formalism And Nonformalism In Choice Of Law Methodology, William C. Powers, Jr.
Washington Law Review
This article presents an analysis of choice of law methodologies in terms of their formal and nonformal characteristics. In Part I, formal and nonformal decisionmaking processes are defined, and their benefits and detriments are examined. In Part II, two concrete choice of law problems—the New York experience with host-guest statutes and the policy of validation in contractual and testamentary transactions—are studied to highlight the pitfalls of both formal and nonformal choice of law approaches. In Part III, the shift from formalism to nonformalism in choice of law methodology is analyzed from the perspective of a general theory of judicial shifts …
Long-Arm Jurisdiction And Quasi In Rem Jurisdiction In Washington, Philip A. Trautman
Long-Arm Jurisdiction And Quasi In Rem Jurisdiction In Washington, Philip A. Trautman
Washington Law Review
During the past decade and a half considerable change has occurred on a national basis in the areas of choice of law and judicial jurisdiction. In Washington, while there has been some change in choice of law principles, it has been relatively modest. On the other hand, Washington has been in the forefront of the development of jurisdiction concepts. There has been an unusual amount of significant litigation under the Washington long-arm statute. That litigation and its meaning will constitute the major topic of discussion in this article. In addition, recently there has been an important curtailment of quasi in …
A Jurisdictional Basis Of Nonstatutory Judicial Review In Suits Against Federal Officers—Jurisdictional Amount, The Administrative Procedure Act And Mandamus, Mark William Pennak
A Jurisdictional Basis Of Nonstatutory Judicial Review In Suits Against Federal Officers—Jurisdictional Amount, The Administrative Procedure Act And Mandamus, Mark William Pennak
Washington Law Review
This comment examines the possible sources of subject matter jurisdiction for the federal district courts in nonstatutory judicial review suits. Specifically, the comment will explore the limits of the general federal question jurisdiction provision of 28 U.S.C. § 1331 (Section 1331) and then focus on the mounting confusion and conflict among the circuits as to the jurisdictional nature of the judicial review provisions of the APA. The proper scope of review under the 1962 mandamus statute, 28 U.S.C. § 1361 (Section 1361), will also be scrutinized. The comment concludes that despite the growing acceptance of the APA as an independent …
Laird V. Nelms: A Call For Review And Revision Of The Federal Tort Claims Act, Cornelius J. Peck
Laird V. Nelms: A Call For Review And Revision Of The Federal Tort Claims Act, Cornelius J. Peck
Washington Law Review
Despite the Federal Tort Claims Act's explicit purpose to make state law determinative of recovery for governmental wrongs, the United States Supreme Court in Laird v. Nelms held that liability under the Act may not be predicated on a state statute imposing absolute or strict liability. Professor Peck challenges the Court's rationale in reaching this decision, concluding that Laird v. Nelms makes legislative revision of the Federal Tort Claims Act imperative. To guarantee that the Act will not insulate the government from strict liability for its ultrahazardous activities, Professor Peck proposes several basic changes to the Federal Tort Claims Act, …
Assignments And Transfers Affecting Federal Diversity Jurisdiction, Barry E. Wolf
Assignments And Transfers Affecting Federal Diversity Jurisdiction, Barry E. Wolf
Washington Law Review
This comment examines the application of section 1359 to assignments and transfers which affect federal diversity jurisdiction. Throughout the following discussion, the focus is directed toward the determination of more uniform standards for the interpretation of the statute. The purpose of section 1359, from which general guidelines may be drawn, is examined in part I. Part II includes a survey of cases which have dealt with assignments and transfers to invoke or defeat federal diversity jurisdiction. Certain factors the courts have relied on, and certain rules they have developed, in attempting to answer the questions posed above will be explained, …
Original Jurisidiction—Interstate Water Pollution: Alternatives To The Original Jurisdiction Of The United States Supreme Court—Ohio V. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), Anon
Washington Law Review
Ohio, alleging that foreign corporations were polluting Lake Erie's waters by discharging mercury into tributaries of Lake Erie, sought to invoke the original jurisdiction of the United States Supreme Court by moving for leave to file a bill of complaint. Ohio desired a decree declaring the alleged pollution a public nuisance, granting injunctive relief, ordering removal of the mercury, and requiring payment of damages. The Court denied the motion for leave to file the bill of complaint. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971).
Public Utilities Regulation—Jurisdiction Of The Federal Power Commission: Factual Determination Of Interstate Power Flow Required. Florida Power & Light Co. V. Fpc, 430 F.2d 1377 (5th Cir. 1970), Cert. Granted, 91 S. Ct. 873 (1971), Anon
Washington Law Review
The Florida Power and Light Company (FPL) generates, transmits, distributes and sells electric energy in the State of Florida. It is the largest electric utility in that state. FPL is directly connected with four other Florida electric systems in a "power pool" arrangement. One of the other systems is connected (in a similar pooling arrangement) to a further system across the state line. FPL has no direct interstate connections. The electric power on all these systems is supplied as alternating current at a frequency of 60 cycles. Frequency control and synchronization are maintained by all the systems. This permits an …
The Allocation Of Jurisdiction Between State And Federal Courts In Patent Litigation, Donald Shelby Chisum
The Allocation Of Jurisdiction Between State And Federal Courts In Patent Litigation, Donald Shelby Chisum
Washington Law Review
A proper jurisdictional balance between state and federal court systems has long been a goal of federal statutes granting jurisdiction over patent matters to the federal courts. Prompted by the recent decision of the United States Court of Appeals for the Ninth Circuit in Koratron Co. v. Deering Milliken, Inc., Professor Chisum considers the general problem of the jurisdiction of federal and state courts over cases concerning questions of federal law and then focuses on the specific problem of jurisdiction over cases involving federal patent law. The article begins with a discussion of the history of statutes granting patent jurisdiction …
A New Approach To Jurisdictional Analysis?, Anon
A New Approach To Jurisdictional Analysis?, Anon
Washington Law Review
Plaintiff, a Washington corporation, is a general insurance broker procuring "hard-to-get" insurance exclusively for other brokers. Defendant, a California corporation, telephoned plaintiff requesting it to obtain insurance for Cisco Aircraft, Inc., a customer negotiating a crop and forest dusting contract. Plaintiff obtained high-risk, high-premium coverage through its London broker and wired defendant a binder. Cisco defaulted and coverage was cancelled. Plaintiff paid its London broker the earned premiums and sought recovery from defendant. Defendant was served pursuant to the Washington long arm statute. Defendant unsuccessfully challenged the jurisdiction of the court. Plaintiff received a $41,275.15 judgment because the jury found …
A New Approach To Jurisdictional Analysis?, Anon
A New Approach To Jurisdictional Analysis?, Anon
Washington Law Review
Plaintiff, a Washington corporation, is a general insurance broker procuring "hard-to-get" insurance exclusively for other brokers. Defendant, a California corporation, telephoned plaintiff requesting it to obtain insurance for Cisco Aircraft, Inc., a customer negotiating a crop and forest dusting contract. Plaintiff obtained high-risk, high-premium coverage through its London broker and wired defendant a binder. Cisco defaulted and coverage was cancelled. Plaintiff paid its London broker the earned premiums and sought recovery from defendant. Defendant was served pursuant to the Washington long arm statute. Defendant unsuccessfully challenged the jurisdiction of the court. Plaintiff received a $41,275.15 judgment because the jury found …
Unincorporated Association—A Legal Entity For Purposes Of Diversity Jurisdiction, Anon
Unincorporated Association—A Legal Entity For Purposes Of Diversity Jurisdiction, Anon
Washington Law Review
Plaintiff, a citizen of New Jersey, commenced a personal injury action in the federal district court for the Southern District of New York against American Express Company, an unincorporated joint stock association organized under New York laws. Jurisdiction was alleged solely on the basis of diversity of citizenship. The district court held that the defendant association was itself incapable of being a citizen and, since some member shareholders were shown to be citizens of plaintiff's state, the complaint was dismissed for lack of total diversity.' On appeal to the Court of Appeals for the Second Circuit, reversed. Held: An unincorporated …
Jurisdiction—Service Of Process On Foreign Corporation, Anon
Jurisdiction—Service Of Process On Foreign Corporation, Anon
Washington Law Review
Alaska statutory provisions for service of process on foreign corporations have been given long-arm effect. The purchaser of a road scraper sued his vendor, the distributor, for breach of warranty as to the condition of the scraper. The distributor filed a third party complaint against a non-resident manufacturer from which it had ordered and received equipment over the course of several years under an exclusive distribution sales and service agreement for the state of Alaska. Because the manufacturer had no agent in Alaska on whom process could be served, copies of the complaint and summons were delivered by the retailer …