Jurisdiction Commons^™

Brief For Respondent. United States V. Wong, 134 S.Ct. 2873 (2014) (No. 13-1074), 2014 Wl 5804278, Eric Schnapper, Tom Steenson, Beth Creighton, Michael Rose

Court Briefs

QUESTIONS PRESENTED

1. Is the six-month limit on filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), jurisdictional?

2. If the six-month limit for filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is not jurisdictional, is it subject to equitable tolling?

In Search Of The Probate Exception, James E. Pfander, Michael J.T. Downey

Vanderbilt Law Review

As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal jurisdiction over ecclesiastical matters, the "law" and "equity" limits of Article III, and the structure of our federal government. The Supreme Court's 2006 decision in Marshall v. Marshall sought to clarify matters, but lower courts continue to debate the breadth of the exception. In this Article, we go in search of the …

Strange Bedfellows: The Federal Constitution, Out-Of-State Nongrantor Accumulation Trusts, And The Complete Avoidance Of State Income Taxation, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

With the maximum rate of federal income tax at 39.6 percent, the Medicare surtax on investment income of 3.8 percent, and some state income tax rates exceeding 9 percent, taxpayers in the highest brackets have been seeking to develop strategies to lessen the tax burden. One strategy that has been receiving increased attention is the use of a highly specialized trust known as the NING, a Nevada incomplete gift nongrantor trust, which eliminates state income taxation of investment income altogether without generating additional federal income or transfer taxes. A major obstacle standing in the way of accomplishing this objective, however, …

To Be Or Not To Be: The Forum Non Conveniens Performance Acted Out On Anglo-American Courtroom Stages, Alan Reed

Georgia Journal of International & Comparative Law

No abstract provided.

Extraterritorial Application Of The United States' Trade Embargo Against Cuba: The United Nations General Assembly's Call For An End To The U.S. Trade Embargo, Jerry W. Cain Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer

Seattle University Law Review

It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …

License To Discriminate: How A Washington Florist Is Making The Case For Applying Intermediary Scrutiny To Sexual Orientation, Kendra Lacour

Seattle University Law Review

Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has generally been on the right to marriage, peripheral issues associated with the right to marriage—and with sexual orientation generally—have become more common in recent years. As the number of states permitting same-sex marriage—along with states prohibiting discrimination on the basis of sexual orientation—increases, so too does the conflict between providers of public accommodations and those seeking their services. Never is this situation more problematic than when religious beliefs are cited as the basis for denying services to …

Solving Jurisdiction's Social Cost, Dustin E. Buehler

Washington Law Review

Federal court subject-matter jurisdiction rules incur a significant social cost—when jurisdiction is found lacking, courts must dismiss, no matter how many years and resources the parties have spent on the case. Indeed, hundreds of belated jurisdictional dismissals occur each year after parties have already engaged in discovery, dispositive motions, or even trial. Federal judges tolerate this waste largely because they view nonwaivable jurisdictional rules as a function of structural values rooted in the Constitution, rather than efficiency concerns. In contrast, scholars tend to focus primarily on efficiency arguments while discussing jurisdictional nonwaivability, de-emphasizing important structural interests. Both theories are overly …

Fielding An Excellent Team: Law Clerk Selection And Chambers Structure At The U.S. Supreme Court, Christopher D. Kromphardt

Marquette Law Review

Supreme Court Justices exercise wide discretion when hiring law clerks. The Justices are constrained only by the pool of qualified applicants and by norms of the institution, such as that beginning with Chief Justice Burger’s tenure in 1969 90% of clerks have previously served a clerkship with a federal judge. Previous work finds that ideology structures hiring decisions at the individual clerk level; however, these analyses fail to account for the fact that a Justice hires several clerks each Term—he seeks a winning team, not just a single all-star. Hiring decisions are structuring decisions in which one of a Justice’s …

Service Out Of Jurisdiction: Submission And Natural Forum, Man Yip

Research Collection Yong Pung How School Of Law

No abstract provided.

"Defensive Territoriality": A New Paradigm For The Prosecution Of Extraterritorial Business Crimes, Ellen S. Podgor

Georgia Journal of International & Comparative Law

No abstract provided.

Equality And The European Union, Elizabeth F. Defeis

Georgia Journal of International & Comparative Law

No abstract provided.

Vladimir Putin And The Rule Of Law In Russia, Jeffrey Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

A Difficult Situation Made Harder: A Parent's Choice Between Civil Remedies And Criminal Charges In International Child Abduction, Donyale N. Leslie

Georgia Journal of International & Comparative Law

No abstract provided.

Spain's Expanded Universal Jurisdiction To Prosecute Human Rights Abuses In Latin America, China, And Beyond, Mugambi Jouet

Georgia Journal of International & Comparative Law

No abstract provided.

Restrictions On Humanitarian Aid In Darfur: The Role Of The International Criminal Court, Mominah Usmani

Georgia Journal of International & Comparative Law

No abstract provided.

Rethinking The Role And Regulation Of Private Military Companies: What The United States And United Kingdom Can Learn From Shared Experiences In The War On Terror, A. Grayson Irvin

Georgia Journal of International & Comparative Law

No abstract provided.

Losers Always Whine About Their Test: American Nuclear Testing, International Law, And The International Court Of Justice, Ryan C. Burke

Georgia Journal of International & Comparative Law

No abstract provided.

Federal Jurisdiction Over U.S. Citizens' Claims For Violations Of The Law Of Nations In Light Of Sosa, Gwynne Skinner

Georgia Journal of International & Comparative Law

No abstract provided.

The New Habeas Corpus In Death Penalty Cases, Larry Yackle

Faculty Scholarship

This article offers the first systematic examination of Chapter 154, United States Code, which establishes new statutory arrangements for cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences. Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. Yet its provisions were made applicable only in capital cases arising from states that established qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings. No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154’s rules …

Unfunded Federal Mandates And State Judiciaries: A Question Of Sovereignty, Christine M. Durham, Brian L. Hazen

Utah Law Review

State courts have a well-recognized obligation to provide LEP individuals with meaningful access. In accordance with federal law, state courts have long been taking steps to increase that access, though perhaps not with time frames as swift as DOJ (or even the courts themselves) would prefer. But determining the manner in which state courts allocate their resources to provide interpreters should be within the discretion of the states to decide, provided, of course, that the courts provide meaningful access to LEP individuals. Additionally, state courts must make LEP funding decisions in a holistic context that requires courts to allocate scarce …

On The Effectiveness Of Private Security Guards On Board Merchant Ships Off The Coast Of Somalia -- Where Is The Piracy? What Are The Legal Ramifications?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.

Enhancing Sentences In The Absence Of A Prosecution Appeal, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

Sometimes, following aconviction, an appeal is brought by the convicted person without anycross-appeal by the Prosecution on the sentence. Can the appellate courtnevertheless increase the sentence imposed below? This study of the relevant casesand statutory provisions in Singapore suggests that both the High Court and the Court ofAppeal are vested with the power to increase the sentence even where theonly appeal is brought by the convicted person.

Subject To Review? Consideration, Liquidated Damages And The Penalty Jurisdiction, Eliza Mik

Research Collection Yong Pung How School Of Law

The paper examines the relationship between what seem to be basic principles in contract law: "consideration need not be adequate" and "the rule against penalties applies only to sums payable on breach." The 'reluctant inspiration' lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that the absence of breach or an obligation to avoid the occurrence of an event upon which a sum becomes payable, does not render such sum incapable of being characterized as a penalty. This decision constitutes an unexpected divergence from the position in most other common law …

City Of Arlington V. Fcc: Jurisdictional Or Nonjurisdictional, Where To Draw The Line?, Whitney Ruijuan Hao

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Gully And The Failure To Stake A 28 U.S.C. § 1331 "Claim", Lumen N. Mulligan

Washington Law Review

In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view—read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in chief, for …

The Claim-Centered Approach To Arising-Under Jurisdiction: A Brief Rejoinder To Professor Mulligan, Simona Grossi

Washington Law Review

My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies. My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does …

The Claim-Centered Approach To Arising-Under Jurisdiction: A Brief Rejoinder To Professor Mulligan, Simona Grossi

Washington Law Review

My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies. My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does …