Jurisdiction Commons^™

Jurisdiction And Merits, Howard M. Wasserman

Faculty Publications

Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and …

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi

Faculty Publications

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Lone Wolf V. Hitchcock: A Little Haiku Essay On A Missed Constitutional Moment, Frank Pommersheim

Faculty Publications

No abstract provided.

Interlocutory Appeals From Orders Denying Qualified Immunity: Determining The Proper Scope Of Appellate Jurisdiction, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

The Persistent Nation State And The Foreign Sovereign Immunities Act, Mark L. Movsesian

Faculty Publications

One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade Organization; the growing influence of nongovernmental organizations; the emergence of a new global economy; and the formation of a worldwide consumer culture, to name just a few. The law, it is argued, must adapt.

The decline of the nation state is, of course, the premise …

The Domestic Relations Exception To Federal Jurisdiction: Rethinking An Unsettled Federal Courts Doctrine, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Eleventh Circuit’S First Decade Contribution To The Law Of The Nation, 1981-1991, Thomas E. Baker

Faculty Publications

Likewise, the task of commentary is difficult. The period covered here-the first decade of the Eleventh Circuit-represents, quite literally and figuratively, the formative era of the court. Indeed, the volume of decisions and their variety are qualities that ought to humble, if not intimidate, most commentators. Justice Holmes once observed that a common law court could be expected to replicate the entire corpus juris in the space of a single generation. The Eleventh Circuit did this consciously between 1981 and 1991. In Bonner v. City of Prichard, the inaugural en banc court held that the new court-just cleaved from the …

Alternative Penal Sanctions, Paul Marcus

Faculty Publications

No abstract provided.

Toward A Unified Theory Of The Jurisdiction Of The United States Courts Of Appeals, Thomas E. Baker

Faculty Publications

No abstract provided.

Personal Jurisdiction After Asahi: The Other (International) Shoe Drops, R. Lawrence Dessem

Faculty Publications

This articles analyzes the growth and development of the doctrine of personal jurisdiction and the Supreme Court's consideration and application of that doctrine in the recent case of Asahi Metal Industry Co. v. Superior Court. Asahi is significant both because of the nature of the suit and the nationality of the third-party defendant. The Supreme Court for the first time directly addressed the constitutionality of the ‘stream of commerce’ doctrine of personal jurisdiction, a jurisdictional theory that has been employed increasingly in recent years in products liability actions. Asahi also is one of the few cases in which the Court …

Ripeness And The Constitution, Gene R. Nichol

Faculty Publications

No abstract provided.

Thinking About Federal Jurisdiction — Of Serpents And Swallows, Thomas E. Baker

Faculty Publications

In this essay, Professor Baker assumes that the decision to get into or stay in federal court has been made, for whatever reason. His concentration is focused on providing a checklist of some of the typical challenges to jurisdiction and to highlight some uncommon responses. Organizationally, he first considers general issues which apply to all cases, and then considers separately some issues in diversity cases and in federal question cases.

Legal Positivism And Federalism: The Certification Experience, Paul A. Lebel

Faculty Publications

No abstract provided.

The Ambiguous Independent And Adequate State Ground In Criminal Cases: Federalism Along A Mobius Strip, Thomas E. Baker

Faculty Publications

In topology a Mobius strip is a one-sided surface formed by holding one end of a rectangle fixed, rotating the opposite end 180 degrees, and joining the two ends.'In Supreme Court jurisdiction the independent and adequate state ground doctrine forms a similar figure by joining, on one side, the power of the Court to revise the judgments of state courts on issues of federal law with, on the other side, the Court's lack of any general power to re examine issues of state law.

Jurisdiction And The Japanese Defendant, Robert Peterson

Faculty Publications

This article considers some of the current tactical and legal issues counsel must face in bringing the Japanese defendant into an American court. Much of the discussion is also relevant to service in other foreign countries. The article concludes with a recipe for the proper preparation of service of process which the Japanese defendant should find irresistible.

Meet The New Juvenile And Domestic Relations District Court, Ingrid Michelsen Hillinger

Faculty Publications

No abstract provided.

Mcmillan V. Mcmillan: Choice Of Law In A Sinkhole, Doug R. Rendleman

Faculty Publications

No abstract provided.

State Medical Malpractice Screening Panels In Federal Diversity Actions, Vincent C. Alexander

Faculty Publications

During the early 1970's, a medical malpractice crisis was perceived in the United States. An increasing number of costly and time-consuming lawsuits alleging medical malpractice against doctors, hospitals, and other health care providers caused malpractice insurers to raise premiums substantially, which in turn threatened to curtail the availability of adequate health care at reasonable cost. State legislatures responded to the crisis with a variety of substantive and procedural measures intended to reduce the number of litigated claims and the size of jury awards. One of the principal steps taken in a majority of states was the creation of extrajudicial panels …