Jurisdiction Commons^™

Where Victims Of Data Breach Stand: Why The Breach Of Personally Identifying Information Should Be Federally Codified As Sufficient Standing For Data Breach Causes Of Action, Gabriela Nastasi

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Modern Waste Law, Bankruptcy, And Residential Mortgages, Jill M. Fraley

Cardozo Law Review

Around the time of the subprime mortgage collapse, lenders began in earnest to sue borrowers by adapting the traditional law of waste. Today, these claims continue to rise in frequency and to expand to more jurisdictions. Lender waste claims provide a "work around" for state mortgage laws that prohibit personal deficiency judgments after foreclosure and are potentially non-dischargeable in bankruptcy.

While a recent wave of scholarship has addressed the problems of how the bankruptcy system handles mortgages, scholars have not yet explored the use of waste actions by lenders and how waste judgments intersect with bankruptcy and foreclosure. Using new …

The Right To Stay: The Suspension Clause, Constitutional Avoidance, And Federal District Court Jurisdiction To Grant Stays Of Removal Despite 8 U.S.C. Sec. 1252(G), Yael Ben Tov

Cardozo Law Review

No abstract provided.

Introductory Remarks From The Festschrift Organizer, Richard Weisberg

Cardozo Law Review

On October 11, 2018, a group of scholars from around the world gathered at Cardozo to celebrate the writings of Professor Arthur Jacobson. A fair sampling of their remarks in his honor follows in this special number of the Cardozo Law Review. Thanks for the event itself and the proceedings of the 11 th of October are due Dean Melanie Leslie, Josephine Tirado, Michael Pantazakos, my research assistants Catherine Weiss and Scott Christopher, and the editors of the Law Review.

The Special Norms Thesis: Why Congress's Constitutional Decisionmaking Should Be Disciplined By More Than The Usual Norms Of Politics, Mark D. Rosen

Cardozo Law Review

Even if we accept that the most basic rules of fair play do not apply to our nation's political representatives when they battle one another in the ordinary lawmaking process, we should demand more when they engage in constitutional decision-making. This Article explains why our constitutional system demands different rules of engagement when constitutional questions are at issue, and exactly what we should expect of members of Congress in these situations.

Festschrift Introduction, Melanie B. Leslie

Cardozo Law Review

It is my pleasure and honor to introduce this published tribute to my esteemed and wonderful colleague, Arthur Jacobson. Arthur has been a member of the Cardozo faculty since 1977, and has had a great deal to do with establishing the Cardozo Law School faculty's reputation for producing serious and deeply intellectual scholarship. He has attracted great thinkers to our school and to our faculty, many of whom have contributed to this volume.

Too Big For Personal Jurisdiction? A Proposal To Hold Companies Accountable For In-State Conduct In Accordance With Due Process Principles, Polina Pristupa

Cardozo Law Review

This Note discusses the potential negative effects that BMS can have on future plaintiffs' ability to sue large corporations in states where the corporations have a major presence but in which they are neither incorporated nor headquartered. Part I outlines the history of personal jurisdiction case law. Part II looks to the different approaches that the majority and dissenting opinions in BMS took in examining the question of jurisdiction. It also looks at the sliding scale test that the California Supreme Court used to allow the nonresident plaintiffs to sue within the state's courts. Section II.B then considers the effect …

Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

Articles

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in …

First Principles For Forum Provisions, Daniel B. Listwa, Bradley J. Polivka

Cardozo Law Review de•novo

In this Essay, the authors argue that the Delaware Chancery Court's opinion in Sciabacucchi v. Salzberg, which appeals to territoriality as a decisive “first principle,” is deeply misguided. The notion that each state’s legislative jurisdiction is bounded by its territorial limits is a formalist and arbitrary notion that has been broadly rejected by various jurisdictions, including Delaware. Moreover, an opinion truly grounded in “first principles” would take comity—the basic framework for choice of law in the early Republic—as its lodestar, necessitating a functionally and strategically sensitive approach to determining the validity of the federal forum provisions. In this case, comity …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cyberbullying: Are You Protected? An Analysis And Guide To Effective And Constitutional Cyberbullying Protections, Mendel Forta

Cardozo Arts & Entertainment Law Journal

No abstract provided.

From Territorial To Universal-The Extraterritoriality Of Trademark Law And The Privatizing Of International Law, P. Sean Morris

Cardozo Arts & Entertainment Law Journal

Legal doctrines, aided and abetted by interpretations of the courts, carry the force of law. The implication is that when courts settle matters, they often go beyond the scope of current intellectual property legislation. Furthermore, global problems in intellectual property may require the participation of private intellectual property rights owners to bring suit. This, in turn, often creates more problems due to the territorial, trans-territorial, and extraterritorial reach of the law, especially with respect private trademark rights. I explore this and other legal conundrums in this Article. The key concern addressed in the Article is how far trademark law is …

Reining In A "Renegade" Court: Tc Heartland And The Eastern District Of Texas, J. Jonas Anderson

Cardozo Law Review

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a "reshuffling" of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced …

Incentivizing Cybersecurity Compliance In The New Digital Age: Prevalence Of Security Breaches Should Prompt Action By Congress And The Supreme Court, Cristiana Modesti

Cardozo Arts & Entertainment Law Journal

No abstract provided.

How A Class Action Plaintiff's Request For Attorney's Fees Can Prevent Mootness Despite A Defendant's Tender Of Damages, Lyuba Shamailova

Cardozo Law Review

No abstract provided.

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Articles

Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

Investor Corruption As A Defense Strategy Of Host States In International Investment Arbitration: Investors' Corrupt Acts Give An Unfair Advantage To Host States In Investment Arbitration, Margareta Habazin

Cardozo Journal of Conflict Resolution

First, the paper will analyze the issue of corruption in international investment arbitration. Second, the paper will examine the deployment of corruption as a defense strategy by host states in international investment arbitration. Next, it will address the jurisdictional consequences of proving corruption in the making of the investment. Further, it will describe the distinctive features of relevant ICSID awards and key issues that led to the dismissal of claims. The paper will also estimate the possible implications of the awards to future ICSID claims affected by bribery and try to predict the outcome of the MOL v. Republic of …

The Waning Of The Indian Child Welfare Act: How Mediation May Help Save The Act And Preserve Its Original Intent, Alice Wade

Cardozo Journal of Conflict Resolution

This note proposes a solution to the current crisis of the Indian Child Welfare Act, by establishing mediation forums both for parents of Native American children not domiciled on the reservation, and for tribal members and tribes wishing to utilize state courts when seeking to have their children adopted by non-Native American families. Part A of Section II provides clarification on the definitions of Native American for the purpose of the Act. Part B of Section II discusses the common law origins of the Act and court created exceptions to it. Part C of Section II discusses jurisdiction over Non-Native …

Defining Residence For Income Tax Purposes: Domicile As Gap-Filler, Citizenship As Proxy And Gap-Filler, Edward A. Zelinsky

Articles

The states' income tax systems are important repositories of experience which confirm the administrative benefits of citizenship-based taxation. Domicile today plays an important role in state tax systems as a gap-filler when more objective statutory residence laws fail to assign any state of residence to the taxpayer. Citizenship is an administrable proxy for domicile and serves a similar gap-filling role in the federal taxation of individuals whose income and activities straddle across national boundaries.

The states' difficulties enforcing domicile-based taxation highlight the administrative benefits of citizenship-based taxation. As long as residence is understood for tax purposes in terms of domicile, …

How Privacy Distorted Standing Law, Felix T. Wu

Articles

No abstract provided.

The Insular Citizens: America's Lost Electorate V. Stare Decisis, Nathan Muchnick

Cardozo Law Review

The note examines the historical and ongoing implications of the Insular Cases, which established a form of colonial governance over U.S. territories like Puerto Rico, denying residents full citizenship rights. It argues that these cases, rooted in outdated political and racial biases, contradict modern democratic principles and urges the Supreme Court to overturn this precedent to enfranchise Puerto Rican citizens.

The Mann Act And Crossing State Lines: Maybe You Should Have Known, Alison Gross

Cardozo Law Review

No abstract provided.

Closing Impunity Gaps For The Crime Of Aggression, Jocelyn Getgen Kestenbaum

Articles

As stated at Nuremberg, the crime of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” International instruments clearly and repeatedly have outlawed initiating wars of aggression and other illegal uses of armed force. States parties recently have defined and codified the crime in the Rome Statute of the International Criminal Court (ICC) and delineated the scope of the ICC’s jurisdiction over aggression. Although the ICC is an important mechanism for accountability and justice, it is not certain when it will be able to adjudicate …

My Body, My Property, My Baby? The Extension Of Property Rights To Sexual Reproductive Cells And Embryos, Chanel Vegh

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

International Accountability In U.S. Law: A Call For Legislation, Jonah Diamond

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

Fighting The Tofu: Law And Politics In Scholarship And Adjudication, Stephen M. Feldman

Cardozo Public Law, Policy & Ethics Journal

Law professors and political scientists often aim to deny, control, or otherwise tame the dynamic interactions of law and politics that are integral to adjudication. The University of Chicago Law Review recently published an issue containing two such articles: Charles L. Barzun's Impeaching Precedent and Eric A. Posner and Adrian Vermeule's Inside or Outside the System. Both articles sought to police the boundary between law and politics, between the internal and external. The two articles, however, struggled to reach that shared goal in strikingly different and ultimately irreconcilable ways, both of which were unavailing. And that is my point: …

The Broken System Of Parallel Patent Proceedings: How To Create A Unified, One-Judgment System, Christopher Ilardi

Cardozo Law Review

No abstract provided.

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

Articles

No abstract provided.

Internet Protocol Television And The Challenge Of "Mission Critical" Bits, Rob Frieden

Cardozo Arts & Entertainment Law Journal

No abstract provided.