Jurisdiction Commons^™

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 …

Division Of Labor: The Modernization Of The Supreme Court Of Georgia And Concomitant Workload Reduction Measures In The Court Of Appeals, Kyle G.A. Wallace, Andrew J. Tuck, Max Marks

Georgia State University Law Review

This article addresses two distinct yet interrelated topics: the arcane and unnecessarily complex jurisdictional division between the Georgia Supreme Court and Georgia Court of Appeals, and the excessive caseload at the Georgia Court of Appeals.

In Part I.A., this article discusses Georgia’s appellate system—its history, the jurisdictional division that arose, the confusion the current jurisdictional framework creates, and the limitations and burdens it places on Georgia’s highest court. In Part I.B., the article discusses the current caseload at the Court of Appeals and the burden any jurisdictional reforms would have on the Court of Appeals. In Part II, the article …

Historical Antecedents Of Challenges Facing The Georgia Appellate Courts, Michael B. Terry

Georgia State University Law Review

The Georgia appellate courts face challenges common to many courts in these days of reduced governmental resources. At the same time, the Georgia appellate courts face unusual challenges that can be traced to their historical antecedents and one unique constitutional provision: the “Two-Term Rule.” Just as “[t]he law embodies the story of a nation’s development through many centuries,” the current rules and practices of both the Supreme Court of Georgia and the Court of Appeals of Georgia embody the story of the development of those courts since their founding.

Several aspects of the history of the courts directly impact the …

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

Faculty Works

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 …

Letter To Editor Indiana Magazine Of History, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Letter responding to comparison of Guantanamo bay terrorist detainees with the noted Indiana Civil War case of Lambdin Milligan, ultimately decided by the U.S. Supreme Court, who was detained by Union military authorities during the Civil War for his pro-confederate activities and tried by a military court.

Grid Governance: The Role Of A National Network Coordinator, Ashira Pelman Ostrow

Cardozo Law Review

Mounting concerns over the security and reliability of the grid have prompted many to question the grid's state-centered regulatory framework. Today, the federal government regulates interstate transmission, while the states exercise exclusive authority over intrastate distribution, generation, and transmission siting. In an interconnected system, however, each state's energy policies and infrastructure investments inevitably affect operations and costs throughout the entire network. The ongoing physical, financial, and technological integration of the interstate electric power network portends a growing federal role in coordinating intrastate infrastructure policy.

This Article conceptualizes the federal role in grid governance as that of a "National Network Coordinator." …

The Competing Approaches To The Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement, Morgan Franz

Pepperdine Law Review

This Comment explores the history and reasoning behind a recent reexamination of the FTAIA in light of Arbaugh v. Y & H Corp., examines both the propriety and the implications of the competing interpretations of the FTAIA, and argues that the resolution of the competing approaches is beyond the purview of the lower courts. Part II provides an overview of the extraterritorial reach of the Sherman Act leading up to the FTAIA, as well as the judicial treatment of the FTAIA prior to Arbaugh. Part III discusses the impact of Arbaugh and subsequent Supreme Court cases applying the “clearly states” …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the Third International Intellectual Property Scholars Roundtable, which was held at the DePaul University College of Law on May 1, 2014.

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Articles

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

Ensuring Contractor Accountability Overseas: A Civilian Extraterritorial Jurisdiction Act Would Be Preferable To Expansion Of The False Claims Act, Rachel M. Kelly

William & Mary Business Law Review

This Note considers the advisability of amending the False Claims Act’s qui tam provisions beyond instances of fraud to include criminal allegations against government contractors employed overseas. It considers the negative effects that result from qui tam actions in the fraud context and discusses alternatives for holding contractors accountable for crimes committed overseas that could avoid those negative effects. This Note particularly focuses on and recommends a civilian corollary to the Military Extraterritorial Jurisdiction Act—the Civilian Extraterritorial Jurisdiction Act. It discusses the benefits that the Civilian Extraterritorial Jurisdiction Act would provide such as increased judicial efficiency, increased prosecutorial flexibility, and …

In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper

Catholic University Law Review

No abstract provided.

Unequal Protection Under The Law: Why Fda Should Use Negotiated Rulemaking To Reform The Regulation Of Generic Drugs, Marie Boyd

Cardozo Law Review

The duty to ensure the safety of drug products, through adequate warnings or other means, should ultimately rest with the drug's manufacturer regardless of whether the drug is a generic drug or a brand-name drug. Recent U.S. Supreme Court holdings, however, suggest that while the manufacturer of a brand-name drug is always responsible for its label's content, this is not the case for generic drugs. In addition, by holding that failure-to-warn claims against generic drug manufacturers based on state law are preempted, the Court has removed the protections and compensation that state tort law can provide consumers of generic drugs …

Jurisdictional Effects In M & A Litigation, Randall S. Thomas, C.N. V. Krishnan, Ronald W. Masulis, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We compile the most extensive hand-collected data set on all forms of M&A litigation in the United States to study the effects of lawsuit jurisdictions during a sample period (1999 and 2000) of the fifth merger wave, a period characterized by an abundance of friendly one- bidder deals and the near demise of the hostile offer. We find that only about 12 percent of all M&A offers are challenged in the courts during this period. Almost half the suits are filed in Delaware, while federal suits account for less than 9 percent of the suits in our sample. We find …

Is The Clean Water Act's Diligent Prosecution Bar Jurisdictional? A Journey Into Discovering Congressional Intent, Szonja Ludvig

BYU Law Review

No abstract provided.

Promoting The Study Of Wrongful Convictions In Criminal Justice Curricula, Jessica S. Henry

Department of Justice Studies Faculty Scholarship and Creative Works

Criminal justice education promotes interdisciplinary learning, critical thinking skills, and ethical decision making. A course on wrongful convictions falls squarely within that paradigm, as it draws upon criminology, criminal justice, law, psychology, and forensic science to examine basic assumptions about the criminal justice system and the actors within it. In a wrongful convictions course, students learn to think critically about the criminal justice system, and what happens when it fails to function as it should. Students identify practice and policy reforms that improve the accuracy and reliability of the system. This article first considers the broad objectives of criminal justice …

Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen

Notre Dame Law Review

This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence.

2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its progeny. Decades …

The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain

Notre Dame Law Review

The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.” John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of the second oldest written constitution …

Waving Goodbye To Non-Waivability: The Case For Permitting Waiver Of Statutory Subject-Matter Jurisdiction Defects, Jessica Berch

McGeorge Law Review

No abstract provided.

The March Of Judicial Cosmopolitanism And The Legacy Of Enemy Combatant Case Law, Madalina Lulia Sontrop

LLM Theses

This thesis explores the concept of judicial cosmopolitanism and its prevalence in enemy combatant case law. The author draws upon the theoretical and philosophical underpinnings of cosmopolitanism and cosmopolitan law to describe judicial cosmopolitanism as form of legal discourse through which judges show a willingness to extend constitutional protections based on a contemporary, functional understanding of sovereign jurisdiction. The purpose of this work is to address the correlation between enemy combatant jurisprudence and the aforementioned understanding of judicial cosmopolitanism. It is argued that a march of judicial cosmopolitanism developed early in enemy combatant cases, and that it came to a …

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states …

Balancing Security And Privacy In 21st Century America: A Framework For Fisa Court Reform, 47 J. Marshall L. Rev. 1453 (2014), Daniel Cetina

UIC Law Review

No abstract provided.

Jurisdictional Limits Of In Rem Proceedings Against Domain Names, Michael Xun Liu

Michigan Telecommunications & Technology Law Review

In 1999, Congress passed the Anticybersquatting Consumer Protection Act (ACPA) to combat “cybersquatters” who profited by registering domain names that were confusingly similar to established trademarks. Under the ACPA, trademark owners have a specific cause of action against domain name registrants accused of cybersquatting. Moreover, the law gives U.S. courts in rem jurisdiction over trademark infringing domain names registered to parties that are not subject to personal jurisdiction. Over the past decade, proceeding in rem against domain names has proven to be an effective strategy for trademark owners. While many companies have used the ACPA against cybersquatters, others have relied …

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach, embeddedness …

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.

Federalism, Treaty Implementation, And Political Process: Bond V. United States, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Problem Of Settlement Class Actions, Howard M. Erichson

Faculty Scholarship

This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. …

Extended Exposure:Advising Veterans Of Federal Criminal Jurisdiction Over In-Service Conduct, Hillary A. Wandler

Faculty Journal Articles & Other Writings

The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) was primarily crafted to establish federal criminal jurisdiction over civilians employed by or accompanying the armed forces outside of the United States.9 This includes (1) civilian employees, (2) contractors and subcontractors, and (3) employees of contractors and subcontractors.10 Dependents of members of the armed forces and those “employed by the Armed Forces” also fall under the act’s jurisdiction. This article discuss various aspects of the MEJA.

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine M. Crocker

Georgia Law Review

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of "ripeness" requiring most Fifth Amendment regulatory- takings claimants to seek 'just compensation" in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora's box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs …