Jurisdiction Commons^™

The United States Dropped The Atomic Bomb Of Article 16 Of The Icc Statute, Mohamed E. Zeidy

Vanderbilt Journal of Transnational Law

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States--a major proponent of Resolution 1422--desires to immunize its leaders and soldiers from the International Criminal Court's jurisdictional powers. The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it violates …

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

Lawyer Ethics In The Twenty-First Century, Dr. Julian Lonbay

Vanderbilt Journal of Transnational Law

This Article surveys multijurisdictional legal practice in the European Community. It details some of the types of lawyers and law practices that can be found across Europe and describes the variety of activities in which these lawyers engage. The Article then examines the regulatory regime that controls the legal industry. Specifically, it considers Article 49, Article 43, Directive 89/48/EEC, and Directive 98/5/EC. The Article concludes with a discussion of how conflicts in the regulation of lawyers may be resolved.

Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer

Vanderbilt Law Review

A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. …

The Demise Of Hypothetical Jurisdiction In The Federal Courts, Scott C. Idleman

Vanderbilt Law Review

Recent years have witnessed a modest but expanding Supreme Court effort to return the national government to its structural first principles.' Foremost among these is that federal power, although vast, is neither inherent nor unbounded, but consists only of that granted by the Constitution. In 1998, the Court remained steadfast to this precept, thwarting yet another attempt by a federal branch to exceed its limited and enumerated constitutional powers. This time, however, the perpetrator was none other than the Article IH judiciary itself. In Steel Co. v. Citizens for a Better Environment, the Court formally denounced the federal court practice …

Beyond "Marbury": Jurisdictional Self-Dealing In "Seminole Tribe", Laura S. Fitzgerald

Vanderbilt Law Review

In Seminole Tribe v. Florida, the Supreme Court held that the Constitution's Article III embodies a principle of state sovereign immunity which so constrains the federal judicial power that it prohibits Congress from granting federal courts subject matter jurisdiction over private lawsuits to enforce Article I legislation against states. At the same time, however, and again in Idaho v. Coeur d'Alene Tribe, the Court reaffirmed its own Ex parte Young doctrine, under which the Court itself unilaterally granted federal courts subject matter jurisdiction over private lawsuits to coerce states to comply with federal law despite state sovereign immunity. Neither in …

Extra-Statutory Discovery Requirements: Violating The Twin Purposes Of 28 U.S.C. Section 1782, Christopher W. Sanzone

Vanderbilt Journal of Transnational Law

This Note analyzes Section 1782 of United States Code Chapter 28 and its role in the realm of international judicial assistance. The twin aims of Section 1782 are: (1) to provide efficient means of assistance to participants in foreign litigation, and (2) to encourage foreign countries by example to provide similar assistance to U.S. litigants in court. This Note posits that these goals are violated when a district court, considering a request for documents, imposes a threshold, extra-statutory requirement that the material requested be discoverable in the foreign jurisdiction where the litigation is pending.

After analyzing the legislative history of …

Judicial Jurisdiction In The Conflict Of Laws Course: Adding A Comparative Dimension, Linda J. Silberman

Vanderbilt Journal of Transnational Law

In this Article, Professor Silberman suggests that comparative law materials can usefully be introduced in the conflict of laws course. She proposes the subject of adjudicatory jurisdiction as a good place to start. She argues that a comparison of the U.S. approach with the English and European approaches (particularly under the Brussels Convention) is evidence of the desirability of a jurisdictional system grounded more on rules and/or discretion rather than on a constitutional standard of reasonableness. She takes issue with the contention of her colleague Professor Andreas Lowenfeld that "reasonableness" has been accepted as an international standard for the assertion …

Professor Lowenfeld Responds, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.

This brief response is addressed only to …

Ashley V. Abbott Laboratories: Reconfiguring The Personal Jurisdiction Analysis In Mass Tort Litigation, Julia C. Bunting

Vanderbilt Law Review

The Supreme Court has struggled for over one hundred years to articulate a workable standard for determining whether a court may exercise personal jurisdiction, over a defendant without violating the Due Process Clause of the Fourteenth Amendment. Despite a substantial body of precedent, the Court has been unable to enunciate a consistent, intelligible test to govern personal jurisdiction. The Court's pronouncements swing between two bases: the territoriality, sovereignty, and power concerns established by Pennoyer v. Neff, and the defendant-centered fairness analysis announced in International Shoe Co. v. Washington. As a result of this inconsistency, lower courts adhere to vastly different …

Conflict Of Laws And Accuracy In The Allocation Of Government Responsibility, Joel P. Trachtman

Vanderbilt Journal of Transnational Law

The field of conflict of laws suffers from a lack of theoretical coherence, and therefore fails to provide a satisfactory basis for discourse, adjudication, legislation, and inter-governmental negotiation regarding issues of prescriptive scope. This Article advances a law and economics-based approach to conflict of laws for use in both the domestic and international context. The Article first assesses the theoretical coherence of some principal conflict of laws approaches, analyzing their resolution of four tensions: predictability and adminstrability versus accuracy, unilateralism versus multilateralism, private interest versus public interests, and courts versus legislatures. It refers to Professor Baxter's "comparative impairment" methodology as …

The Scattered Remains Of Sovereign Immunity For Foreign States After Republic Of Argentina V. Weltover,Inc., Sarah K. Schano

Vanderbilt Journal of Transnational Law

The globalization of the United States economy in the latter half of the twentieth century has fostered greater interaction between the United States and foreign states and their instrumentalities. As a result, the likelihood of legal disputes arising between United States entities and foreign states has increased. Traditionally, foreign states have been immune from suit in United States courts. However, the Foreign Sovereign Immunities Act (FSIA), enacted in 1976, specifies instances in which United States courts may deny immunity to foreign states and exercise jurisdiction over them. Under one provision of the FSIA, a foreign state may forfeit its immunity …

In The Wrong Place, At The Wrong Time: Problems With The Inter-American Court Of Human Rights Use Of Contentious Jurisdiction, Michael J. Corbera

Vanderbilt Journal of Transnational Law

The Inter-American region has a history of widespread human rights abuse. To combat this problem the Organization of American States has developed a regional system for the protection of human rights. The system's adjudicatory body is the Inter-American Court of Human Rights (the Court). In recent years the Court has expanded its power through its exercise of contentious jurisdiction. Certain factors, however, that are unique to the Inter-American region weigh against the Court's use of contentious jurisdiction.

Tracing the development of the Inter-American human rights system in general and the Court in particular, this Note evaluates the Court's powers and …

Maritime Jurisdiction And The Secession Of States: The Case Of Quebec, Jonathan L. Charney

Vanderbilt Journal of Transnational Law

In this Article, Professor Charney discusses the maritime boundary delimitation issues that result from the creation of a new state through secession. While the author uses Quebec's maritime boundary concerns as an exemplar, the issues discussed are not unique to Quebec. The author notes that one cannot predict the ultimate resolution of maritime boundary disputes precisely, but certain factors will often affect the outcome. These factors include the geographical configuration of the disputed area, the viability of pre-secession boundaries, historic water claims, the doctrine of uti possidetis, and basic equity. The author concludes that maritime boundaries are so vital to …

Multijurisdictional Estates And Article Ii Of The Uniform Probate Code, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The prefatory note to the 1990 revisions of article II of the Uniform Probate Code ("UPC") indicates that the changes wrought are a response to several developments since the promulgation of the UPC in 1969. The prefatory note emphasizes the decline of formalism, the proliferation of will substitutes, the multiple-marriage society, and the rise of the partnership/marital sharing theory as stimulative of the revisions introduced. The theme of this article is that one other crucial development has been essentially ignored. No serious attempt has yet been made by the drafters to address the immensely complex yet commonplace issues associated with, …

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley, Otto Lagodny

Vanderbilt Journal of Transnational Law

This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

Bringing Meaning To Interest Balancing In Transnational Litigation, Spencer W. Waller

Vanderbilt Journal of Transnational Law

This Article contends that the current state of the debate over the balancing of interests in the extraterritorial application of United States law is outmoded and in need of serious reexamination. Most commentators and scholars continue to focus on the area of jurisdiction to prescribe, the acceptability of the effects test, and the development of lists of United States and foreign interests to be balanced by a United States court before exercising jurisdiction.

Professor Waller contends that this debate is no longer productive. Extraterritoriality, with some limitations for the interests of other states, is an accepted feature of United States …

The Ker-Frisbie Doctrine: A Jurisdictional Weapon In The War On Drugs, Andrew B. Campbell

Vanderbilt Journal of Transnational Law

This Note addresses the ongoing use of extra legal apprehension, as applied under "Ker v. Illinois" and "Frisbie v. Collins," as a viable alternative to extradition in obtaining custody over those accused of exporting drugs to the United States. The author outlines the cultural and political reasons for the production of illicit drugs, examines the purposes and structures of formal extradition treaties and their effectiveness in bringing drug traffickers to trial, and considers the alternatives to formal extradition. The author concludes that extralegal apprehension, in both of its two forms--abduction and irregular rendition--should remain an alternative means of securing custody …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MCCARRAN-WALTER ACT PROVISIONS ALLOWING FOR THE DEPORTATION OF ALIENS WHO ADVOCATE WORLD COMMUNISM VIOLATE THE FIRST AMENDMENT

American-Arab Anti-Discrimination Committee v. Meese 1989 U.S. Dist. LEXIS 1327 (C.D. Cal. Jan. 26, 1989)

PHILIPPINE ACTION AGAINST FORMER PRESIDENT MARCOS NOT BARRED BY ACT OF STATE DOCTRINE AND INJUNCTION ALLOWED TO FREEZE ASSETS WORLDWIDE

Republic of the Philippines v. Marcos 862 F.2d 1355 (9th Cir. 1988) (en banc).

THE FOREIGN SOVEREIGN IMMUNITES ACT OF 1976 PROVIDES THE SOLE BASIS FOR OBTAINING JURSIDICTION OVER A FOREIGN STATE

Argentine Republic v. Amerada Hess Shipping Corp. 109 S. Ct. 683(1989).

ASLYUM APPLICANT WHO FAILS TO …

Book Review, Michael C. Doland

Vanderbilt Journal of Transnational Law

The book is divided into two parts. The first part addresses those subjects that the Foreign Sovereign Immunities Act covers in detail, including the definition of foreign states and foreign government-owned corporations, judicial competence, jurisdiction, immunity, service of process, venue, and execution of judgments. The second part addresses those subjects that the Act covers in a cursory fashion, including burden of proof, rights of discovery, available remedies, and jury trials. In addition, the book treats those topics that received virtually no discussion under the Foreign Sovereign Immunities Act but that are essential to its understanding and enforcement, including the act …

Removal, Remand, And Review In Pendent Claim And Pendent Party Cases, Joan Steinman

Vanderbilt Law Review

This Article examines the removability of civil actions that include either pendent claims or pendent parties joined in addition to parties against whom federal questions are alleged. It discusses the remandability of those civil actions or segments of them, and comments on the law governing appellate review of district court remands to state court.' In an effort to reach the wisest resolutions of the various issues posed, it confronts issues of statutory construction, interprets Supreme Court cases, especially Thermtron Products, Inc. v. Hermansdorfer,'and wades in the murky waters of federalism. In the course of this enterprise, the Article analyzes and …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Alien Tort Statute Grants Federal Court Subject Matter Jurisdiction Over Foreign Sovereign for Tort Committed in Clear Violation of International Law and Foreign Sovereign Immunities Act is not Exclusive Jurisdictional Grant Over Sovereign-- Amerada Hess Shipping Corp. v. Argentina Republic 830 F.2d 421 (2nd Cir. 1987)

Jurisdiction By Necessity: Examining One Proposal For Unbarring The Doors Of Our Courts, Tracy L. Troutman

Vanderbilt Journal of Transnational Law

Although the usually proclaimed goals of the United States legal system are "fair play and justice," a person who is injured in some way, who feels that he has had his rights violated, or who seeks to enforce a business agreement, may not necessarily have a remedy in its judicial system. Often a court may claim it lacks power to hear a case because it does not have jurisdiction over the defendant or the subject matter of the suit. Another motive of a court for refusing to hear the case may be simply the necessity to clear its docket. One …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Private Citizens Do Not Have a Cause of Action to Enforce Judgments of the International Court of Justice--Committee of United States Citizens in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988)

The Foreign Sovereign Immunities Act Precludes Domestic Court Jurisdiction Over a Cause of Action Arising Out of Airplane Crash in a Foreign Country When the Airplane Is Owned by an Instrumentality of the Foreign Government -Compania Mexicana de Aviacion v. U.S. Dist. Court, 859 F.2d 1354(9th Cir. 1988).

An Unrecognized Panamanian Regime Lacks Standing to Intervene in an Action Brought by the Recognized Panamanian Government to Enjoin the …

A Comparison Of Soviet And American Maritime Arbitration, Timothy A. Power

Vanderbilt Journal of Transnational Law

Maritime arbitration has a long history both in the United States, where it dates from the late 19th century, and in the Soviet Union, where the permanent arbitration body known as the Maritime Arbitration Commission (MAC or Commission) has existed since 1930. Although both countries have similar procedures for maritime arbitration, the history, ideology, and commercial goals of each country have created systems that differ markedly in approach and style. The American experience has fostered an ad hoc system where the parties establish arbitration panels as disputes arise and where the parties have almost unlimited discretion in choosing arbitrators and …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Picketing Outside Foreign Embassies is Protected Speech Under the First Amendment and Restrictions on this Speech Must Serve a Compelling Government Interest and be Narrowly Tailored to the Specific Situation--Boos v. Barry, 108S.Ct. 1157 (1988).

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Notions of Comity and the Act of State Doctrine Preclude U.S. Federal Courts from Exercising Jurisdiction over the Actions of Foreign Corporations when Those Actions Constitute a Violation of U.S. Antitrust Laws but are Protected by Legislation in a Foreign Country--O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449 (2d Cir.1987).

Considering New Issues On Appeal: The General Rule And The Gorilla Rule, Robert J. Martineau

Vanderbilt Law Review

One aspect of the appellate process that most bedevils judges and lawyers occurs when a party attempts to raise an issue in the appellate court that it did not present to the trial court. This question creates problems for the following reasons: (1) the general rule against considering new issues on appeal; (2) the perception that it is unfair to the appellant if the new issue is not considered, yet it is unfair to the appellee if the new issue is considered; and (3) the failure or inability of appellate courts to articulate any principled basis for determining when and …

Peace And The World Court: A Comment On The Paramilitary Activities Case, Robert F. Turner

Vanderbilt Journal of Transnational Law

One of the most painful experiences of my government service occurred on January 18, 1985, when as Acting Assistant Secretary of State for Legislative and Intergovernmental Affairs I was called on to sign letters informing Congress of the President's decision "not to participate further in the case brought by Nicaragua before the International Court of Justice." I felt deeply that the United States approach was mistaken--not so much on legal as on political grounds'--and in advocating my views I pushed strongly against the proper limits of legitimate dissent within the bureaucracy.

Having defended the Court against speculative criticism from lawyers …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE EXTENDS TO FOREIGN CRIMINAL INVESTIGATIONS WHERE UNITED STATES NARCOTICS AUTHORITIES REASONABLY RELIED ON FOREIGN LAW ENFORCEMENT OFFICERS' REPRESENTATIONS THAT SEARCH COMPLIED WITH THE FOREIGN COUNTRY'S LAW--United States v. Peter-son, 812 F.2d 486 (9th Cir. 1987).

ASSETS OF A WHOLLY-OWNED FOREIGN INSTRUMENTALITY ARE NOT SUBJECT TO ATTACHMENT TO SATISFY JUDGMENT AGAINST A FOREIGN STATE UNLESS PLAINTIFF OVERCOMES PRESUMPTION OF INDEPENDENT STATUS--Hercaire Int'l, Inc. v. Argentina, 821 F.2d 559(11th Cir. 1987).

UNITED STATES DISTRICT COURT HAS SUBJECT MATTER JURISDICTION OVER MEXICAN CONSULAR OFFICIALS FOR THEIR ALLEGED ATTEMPTS TO SUPPRESS CRITICAL DEMONSTRATIONS OUTSIDE MEXICAN CONSULATE IN …

United States-Based Multinational Corporations Should Be Tried In The United States For Their Extraterritorial Toxic Torts, Dianna B. Shew

Vanderbilt Journal of Transnational Law

When a foreign plaintiff sues a United States-based multinational for damages resulting from an extraterritorial toxic tort, the case should be tried in United States courts. The courts are assured of personal jurisdiction as long as there are sufficient contacts between the foreign subsidiary and the United States. Dismissal on grounds of forum non conveniens is not desirable because the United States has a vested interest in monitoring and even influencing the behavior of multinationals that do business within its borders. The requisite "adequate alternative forum" is simply not available in some countries. In addition, despite their case backload, United …