Jurisdiction Commons^™

Cross-Border Evidence Gathering In Transnational Crime Cases: Is The Microsoft Ireland Case The ‘Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel an individual on its territory to obtain and produce material which the individual owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie

Articles, Book Chapters, & Popular Press

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …

Medical Certificates Of Death: First Principles And Established Practices Provide Answers To New Questions, Jocelyn Downie, Kacie Oliver

Articles, Book Chapters, & Popular Press

Voluntary euthanasia became legal in Quebec in December 2015,1 although the legislation is currently the subject of litigation. In addition, physician-assisted death will become legal across Canada in February 2016, barring an extension on the deadline being given by the Supreme Court of Canada. There are many questions about how physician-assisted death should be regulated. One as-yet-unanswered question is “Should physician-assisted death be recorded anywhere on the medical certificate of death?” If so, a second question follows: “How should it be recorded — as manner and/or cause?” and if the latter, “Which category of cause: immediate, antecedent or underlying?”

To …

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Patents Absent Adversaries, Sarah R. Wasserman Rajec

Brooklyn Law Review

The adversarial system is lauded for determining the truth of claims, safeguarding procedural rights, and supporting the efficient direction of resources toward the most relevant and contested issues in a dispute. If a case proceeded to judgment with participation from only one party, it would raise concerns of justice, efficiency, accuracy, and the public interest. And yet, in a tribunal of steadily growing importance for intellectual property disputes—the International Trade Commission (ITC or Commission)—certain cases proceed without the benefit of participation from adverse parties. Following the default of named parties, administrative law judges determine the scope and validity of patent …

Judge Judith Kaye At Skadden, Arps, Barry H. Garfinkel

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Psychological Harm And Constitutional Standing, Rachel Bayefsky

Brooklyn Law Review

When do psychological or emotional harms count as “injury-in-fact” for the purposes of satisfying Article III standing requirements, and when should they? Courts have wrestled with whether to grant standing, for example, to family members of a man killed by the police who argued that as relatives of the deceased, they had suffered emotional pain; members of an animal-welfare organization who claimed they had undergone “sleeplessness, depression, and anger” when they were unable to visit an elephant at the zoo; and members of a Catholic organization who challenged a city resolution criticizing the Catholic Church’s stance on adoption by same-sex …

Dissecting Hobby Lobby'S Corporate Person: A Procedural Proposal For Aligning Corporate Rights And Responsibilities, Andrew J. Fleming

Brooklyn Law Review

Over the years, the U.S. Supreme Court’s corporate personhood decisions have allowed for the corporation to become increasingly more “person-like” by recognizing corporate constitutional rights that were previously reserved for flesh-and-blood human beings. Yet in cases where the rights of corporations are evaluated, the Court’s analysis flows from an axiomatic conceptualization of the corporation as a static, theoretical being, as if plucked straight from a business organizations law school textbook. The result is a gulf between corporate rights as “persons” and corporate legal responsibilities. Nowhere is that gulf more evident than in the Court’s personal jurisdiction jurisprudence. In particular, this …

A Tribute To Judge Kaye, Nicholas W. Allard

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Religion, Liberty, And The Jurisdictional Limits Of Law [Review], Edited By Iain T. Benson And Barry W. Bussey, Nicholas P. Miller

Faculty Publications

"In recent years law and religion scholarship in Canada has grown significantly. This distinctive collection of 18 papers addresses, from a variety of angles, the jurisdiction of law itself and limits of law – an important but often overlooked aspect of settling the boundaries of church and state, religion and law."

The Energy Prosumer, Sharon B. Jacobs

Publications

Decentralization is becoming a dominant trend in many industries, and the electricity industry is no exception. Increasing numbers of energy consumers generate their own electricity and/or provide essential grid services such as storage, efficiency, and demand response. This Article offers a positive account of the emergence of these new energy actors, which it calls "energy prosumers. " It then frames several doctrinal and procedural puzzles that prosumers create, including jurisdictional puzzles, distributional concerns, and democratic challenges. Ultimately, it concludes that prosumers can be a positive disruptive force in the electricity industry if courts and regulators can manage these challenges effectively. …

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr.

Journal Articles

Ultimately, Somin’s single-minded dedication to a federal constitutional ban on economic development taking prevents the book from offering a full and fair consideration of alternative responses to eminent domain abuse. His survey of the various state legislative reforms enacted as a result of homeowner backlash to Kelo quite rightly points out the shortcomings of populist challenges to sophisticated vested interests. But his blatant aversion to engage with the substantial problems that public purpose land assembly faces without resort to eminent domain closes off any fair comparison of proposals that rival his own, particularly the position of fellow libertarian and ardent …

Analysis Of A Bias-Based Exception To The Doctrine Of Exhaustion In Wilson V. Bull, R. Mitchell Mcgrew

American Indian Law Review

No abstract provided.

Nothing Personal (Or Subject Matter) About It: Jurisdictional Risk As An Impetus For Non-Tribal Opt-Outs From Tribal Economies, And The Need For Administrative Response, Joel Pruett

American Indian Law Review

No abstract provided.

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

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 …

A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see …