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Articles 31 - 60 of 115
Full-Text Articles in Jurisdiction
The Playground Bully Has Gone Digital: The Dangers Of Cyberbullying, The First Amendment Implications, And The Necessary Responses, Jamie Wolf
Cardozo Public Law, Policy & Ethics Journal
The note argues that cyberbullying has evolved into a significant issue in the digital age, requiring a reevaluation of First Amendment protections and legislative responses. It critiques the current legal framework, particularly the Tinker v. Des Moines standard, for failing to adequately address off-campus speech that impacts the school environment. The author advocates for a balanced approach that protects victims while ensuring due process, emphasizing the need for comprehensive statutes and proactive measures by schools and parents.
Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner
Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner
Michigan Journal of International Law
On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack of …
Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden
Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden
University of Michigan Journal of Law Reform
This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes' ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law's disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on …
Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi
Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi
Cornell Law Faculty Publications
We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …
The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick
The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with …
"By Some Other Means": Considering The Executive's Role In Fostering Subnational Human Rights Compliance, Risa E. Kaufman
"By Some Other Means": Considering The Executive's Role In Fostering Subnational Human Rights Compliance, Risa E. Kaufman
Cardozo Law Review
The broad realization of human rights domestically requires strong partnership among all levels of government. Indeed, international and domestic law support an important role for state and local governments in implementing the United States's human rights treaty commitments, with the federal government retaining ultimate responsibility. While the federal government's responsibility is clear, its options for fostering and facilitating subnational compliance have not been fully explicated. The United States's human rights treaty ratification practices and recent Supreme Court jurisprudence primarily constrain the executive's ability to compel state and local compliance without congressional authorization. In the absence of such congressional action, the …
Traveling To The Hague In A Worn-Out Shoe, Friedrich K. Juenger
Traveling To The Hague In A Worn-Out Shoe, Friedrich K. Juenger
Pepperdine Law Review
No abstract provided.
De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan
De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan
Michigan Law Review
Playing off the strict requirements of federal diversity jurisdiction, plaintiffs can structure their suits to prevent removal to federal court. A common way to preclude removability is to join a nondiverse party. Although plaintiffs have a great deal of flexibility, they may include only those parties that have a stake in the lawsuit. Put another way, a court will not permit a plaintiff to join a party to a lawsuit when that party is being joined solely to prevent removal. The most useful tool federal courts employ to prevent this form of jurisdictional manipulation is Federal Rule of Civil Procedure …
The Lay Of The Land: Examining The Three Opinions In J. Mcintyre Machinery, Ltd. V. Nicastro, Adam N. Steinman
The Lay Of The Land: Examining The Three Opinions In J. Mcintyre Machinery, Ltd. V. Nicastro, Adam N. Steinman
Faculty Scholarship
It was a long time coming. The Supreme Court's decisions last Term in J. McIntyre Machinery, Ltd. v. Nicastro and Goodyear Dunlop Tires Operations, S.A. v. Brown ended a two-decade high-court hiatus from the subject of personal jurisdiction. In McIntyre, the more controversial of the two, the Court concludes that New Jersey state courts lacked jurisdiction over a British manufacturer in a suit by a New Jersey plaintiff who was injured in New Jersey by a machine purchased by his New Jersey employer. McIntyre lacks a majority opinion, however. Instead we have a four-Justice plurality authored by Justice Kennedy, a …
The Fate Of "Unremovable" Aliens Before And After September 11, 2001: The Supreme Court's Presumptive Six-Month Limit To Post-Removal-Period Detention, Megan Peitzke
Pepperdine Law Review
No abstract provided.
A New Paradigm For The Alien Tort Statute Under Extraterritoriality And The Universality Principle, Jason Jarvis
A New Paradigm For The Alien Tort Statute Under Extraterritoriality And The Universality Principle, Jason Jarvis
Pepperdine Law Review
No abstract provided.
Judicial Policing Of Consumer Arbitration , Edward A. Dauer
Judicial Policing Of Consumer Arbitration , Edward A. Dauer
Pepperdine Dispute Resolution Law Journal
Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic
Pepperdine Dispute Resolution Law Journal
In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …
The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney
The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney
Pepperdine Dispute Resolution Law Journal
The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …
The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting
The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting
Pepperdine Dispute Resolution Law Journal
On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …
Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim
Pepperdine Dispute Resolution Law Journal
Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …
Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt
Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt
Pepperdine Dispute Resolution Law Journal
Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel
Pepperdine Dispute Resolution Law Journal
The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal
Pepperdine Dispute Resolution Law Journal
By specifying that its provisions generally are default rules and listing particular exceptions, the Revised Uniform Arbitration Act (“RUAA”) provides much needed certainty and avoids unnecessary litigation, at least compared to the Federal Arbitration Act, which does not always identify which of its provisions are default rules. In one important respect, however, RUAA jettisons that valuable certainty. The RUAA drafters left open (or at least sought to leave open) the question whether parties can contract to expand the grounds for judicial review of arbitration awards beyond those set out in the statute. In other words, the drafters purported not to …
Forum Selection Clauses In Attorney-Client Agreements: The Exploitation Of Bargaining Power, Jennifer Dempsey
Forum Selection Clauses In Attorney-Client Agreements: The Exploitation Of Bargaining Power, Jennifer Dempsey
West Virginia Law Review
No abstract provided.
Welcome To The Jungle: Rethinking The Amount In Controversy In A Petition To Vacate An Arbitration Award Under The Federal Arbitration Act, Christopher L. Frost
Welcome To The Jungle: Rethinking The Amount In Controversy In A Petition To Vacate An Arbitration Award Under The Federal Arbitration Act, Christopher L. Frost
Pepperdine Law Review
No abstract provided.
Law Day Fifth District Court Of Appeal Oral Arguments At Florida A&M University College Of Law, 2012, Honorable Richard B. Orfinger, Chief Judge, Honorable William D. Palmer Chief Judge, Honorable Jay P. Cohen
Law Day Fifth District Court Of Appeal Oral Arguments At Florida A&M University College Of Law, 2012, Honorable Richard B. Orfinger, Chief Judge, Honorable William D. Palmer Chief Judge, Honorable Jay P. Cohen
Law Day Presentations
As part of Law Day activities, the Florida Fifth District Court of Appeal is holding a session in the FAMU College of Law Ceremonial Moot Courtroom. A three judge panel is hearing oral arguments from attorneys representing their clients in cases involving appellant's fraud on the trial court, public records questions, attorney's fees, and jurisdiction. A question-and-answer session follows each set of arguments during which the justices and attorneys entertain questions about the appellate process and organization of the court.
The Sosa Standard: What Does It Mean For Future Ats Litigation?, Virginia Monken Gomez
The Sosa Standard: What Does It Mean For Future Ats Litigation?, Virginia Monken Gomez
Pepperdine Law Review
No abstract provided.
Asbestos Litigation In California: Can It Change For The Better?, Steven D. Wasserman, Michael L. Fox, Michael C. Scanlon, Sunny C. Shapiro, Anne Cherry Barnett
Asbestos Litigation In California: Can It Change For The Better?, Steven D. Wasserman, Michael L. Fox, Michael C. Scanlon, Sunny C. Shapiro, Anne Cherry Barnett
Pepperdine Law Review
No abstract provided.
The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking
The Third Party Non-Signatory's Ability To Compel International Commercial Arbitration: Doing Justice Without Destroying Consent , James M. Hosking
Pepperdine Dispute Resolution Law Journal
This article analyzes the legal theories and other mechanisms employed in international commercial arbitration to achieve a workable compromise among the above-cited propositions. In so doing it touches on larger, more complex questions like the position of third parties in contract law, the jurisdictional foundations of arbitration, and the role of choice-of-law issues in determining the validity of the arbitration agreement. However important these broader concerns may be, they should not undermine the importance of the issue in its own right.
Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich
Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich
Pepperdine Dispute Resolution Law Journal
In EEOC v. Luce, Forward, Hamilton & Scripps, decided in 2003, the Ninth Circuit Court of Appeals aligned its view with its sister circuits and with the Supreme Court regarding the enforceability of arbitration agreements in employment discrimination cases. The court held that an employee's agreement to arbitrate a claim arising under federal anti-discrimination law is enforceable. At first glance, it would appear that as far as the judicial branch is concerned, the longstanding issue of the validity of mandatory arbitration agreements in the employment context is now settled. This article, in contrast, posits that the courts will be …
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis
Pepperdine Dispute Resolution Law Journal
This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …
International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason
International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason
Pepperdine Dispute Resolution Law Journal
This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …
Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric Chafetz
Pepperdine Dispute Resolution Law Journal
This article will first discuss the legislative history of the NY Convention in general and the history of its vacatur provisions in particular. Second, it will summarize certain federal court decisions that address the Expansion Issues and reach the Consensus. Third, it will argue that the Expansion Issues were resolved incorrectly, because the courts addressing them do not recognize how the operative/material language in section 207 of Ch. 2 of the FAA and section 9 of Ch. 129 of the FAA has a virtually identical meaning, and therefore should have been construed and applied in the same manner. Fourth, this …
What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb
What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb
Pepperdine Law Review
The Constitution does not use the words federal or federalism. It gives Congress a set of powers and prohibits the national government, the states or both from doing some things. The Court has inferred principles of federalism from those provisions. The political science community has treated the advantages of federalism as contingent on whether federalism deepens or diffuses conflict or opens competition for power. The United States Supreme Court's approach does neither; it has been trying to clarify and police a very different boundary. Even on its own terms, however, the Court's justifications do not work - a problem made …