Jurisdiction Commons^™

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …

Suffocate Or Innovate: An Observation Of California's Regulatory Framework For Cryptocurrency, Jane Kim

Loyola of Los Angeles Law Review

Transactions involving cryptocurrency are rapidly gaining traction in the United States, prompting the need for regulation. Hence, California legislators proposed the cryptocurrency regulation Assembly Bill 1123. However, based upon the outcome of a virtually identical regulation in New York, this proposed bill is theoretically projected to stifle business growth and potential innovation. This Article focuses on one approach to remedy this by advocating for reform at the federal level and recommending the utilization of the regulatory sandbox as a framework for future regulation.

The Parochial Uses Of Universal Jurisdiction, Eugene Kontorovich

Notre Dame Law Review

This Article presents a new account of the function served by universal jurisdiction (UJ). This doctrine—one of the most diplomatically controversial in modern international law— allows states to prosecute certain grave international crimes, even committed abroad, and with no connection to the prosecuting state.

This Article shows that, far from being used as a tool of global policing, the UJ doctrine is, in practice, used to protect the parochial domestic interests of the prosecuting state. In showing this, this Article reconciles several paradoxes related to UJ—its broad and longstanding normative acceptance by states contrasted with its extremely rare application; and …

Too Big For Personal Jurisdiction? A Proposal To Hold Companies Accountable For In-State Conduct In Accordance With Due Process Principles, Polina Pristupa

Cardozo Law Review

This Note discusses the potential negative effects that BMS can have on future plaintiffs' ability to sue large corporations in states where the corporations have a major presence but in which they are neither incorporated nor headquartered. Part I outlines the history of personal jurisdiction case law. Part II looks to the different approaches that the majority and dissenting opinions in BMS took in examining the question of jurisdiction. It also looks at the sliding scale test that the California Supreme Court used to allow the nonresident plaintiffs to sue within the state's courts. Section II.B then considers the effect …

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic …

The Aftereffects Of Tc Heartland: How To Effectively Approach Motions To Dismiss And Motions To Transfer On The Basis Of Improper Venue, Jennifer Rosenblatt

Fordham Intellectual Property, Media and Entertainment Law Journal

Prior to the Supreme Court's decision in TC Heartland, the law of venue in patent infringement actions fluctuated over time. In recent history, the Eastern District of Texas became a notoriously plaintiff-friendly forum in which to litigate patent infringement actions; it was also a widely available choice of forum due to the Court of Appeals for the Federal Circuit's broad reading of the patent venue statute, 28 U.S.C. § 1400(b). However, the Supreme Court in TC Heartland adopted its earlier interpretation of the patent venue statute that is much narrower than subsequent interpretive expansions.

This Note surveys and categorizes motions …

The Justice System Is Criminal, Raven Delfina Otero-Symphony

2020 Award Winners

No abstract provided.

Licensing Paralegals To Practice Law: A Path Toward Bridging The Justice Gap In Minnesota, Conner Suddick

Departmental Honors Projects

There are few legal avenues for low-income and other marginalized groups in the United States to seek civil justice. A lack of legal assistance in civil issues can be detrimental to a person’s health and wellbeing. Given this reality, the legal profession must broaden its capacity to serve these needs, and one path is to embrace the aid of paralegals. In 2016, the legal community of Minnesota had conversations about whether the state should provide limited licenses to paralegals. To study models from across the country, the Minnesota State Bar Association (MSBA) formed the Alternative Legal Models Task Force. In …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

Articles

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in …

Preventing A Cyber-9/11: How Universal Jurisdiction Could Protect International Aviation In The Digital Age, Laura K. Ashdown

Journal of Air Law and Commerce

No abstract provided.

#Personaljurisdiction: A New Age Of Internet Contacts, Zoe Niesel

Faculty Articles

No abstract provided.

#Personaljurisdiction: A New Age Of Internet Contacts, Zoe Niesel

Indiana Law Journal

This Article explores the complicated relationship between minimum contacts and the modern internet. Part I traces the development of modern personal jurisdiction analyses in the areas of both specific and general jurisdiction. Interesting in this historical overview is the increased reliance on predictability, even as courts have recognized that advanced technologies and infrastructure have made the maintenance of lawsuits infinitely easier than in the days before International Shoe.7 Part II then explores the intersection between personal jurisdiction and the internet as well as the rise of the so-called Zippo “interactivity” test for jurisdiction in cases involving websites. Although Zippo has …

Data Protection In An Increasingly Globalized World, Nicholas F. Palmieri Iii

Indiana Law Journal

With the rise of the internet in recent decades, it has become increasingly easy for various enterprises—including retailers, advertising agencies, and service providers—to acquire, use, and even share the personal details of their users. Such a trend is unlikely to decrease in the coming years; in fact, internet usage is only likely to increase as more and more people gain access to the internet. In the wakeof recent data breaches, including the now infamous breach of Equifax as well as the scandal involving Facebook and Cambridge Analytica, people are even more aware of the need for (and the risk of …

Navigating The Differences In Circuit Court Appellate Jurisdiction For Nonfinal Orders, Heather Kolinsky

UF Law Faculty Publications

No abstract provided.

Forgotten Statutes: Trade Law's Domestic (Re)Turn, Kathleen Claussen

Articles

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral …

First Principles For Forum Provisions, Daniel B. Listwa, Bradley J. Polivka

Cardozo Law Review de•novo

In this Essay, the authors argue that the Delaware Chancery Court's opinion in Sciabacucchi v. Salzberg, which appeals to territoriality as a decisive “first principle,” is deeply misguided. The notion that each state’s legislative jurisdiction is bounded by its territorial limits is a formalist and arbitrary notion that has been broadly rejected by various jurisdictions, including Delaware. Moreover, an opinion truly grounded in “first principles” would take comity—the basic framework for choice of law in the early Republic—as its lodestar, necessitating a functionally and strategically sensitive approach to determining the validity of the federal forum provisions. In this case, comity …

Personal Jurisdiction: The Transnational Difference, Austen L. Parrish

Articles by Maurer Faculty

This Article engages with some of the key debates that have emerged among international Iaw and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court's docket. It makes three principal contributions. First, it explains how the recent decisions involving persona jurisdiction should be understood within, and partly limited to, their international contexts. Disputes in involving non-resident foreign defendants raise different considerations than those involving defendants in the United States, and this Article canvasses those differences. If a concern previously was that courts gave too short shrift to …

What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley

Indiana Law Journal

Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From the point of view …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Stern Claims And Article Iii Adjudication - The Bankruptcy Judge Knows Best, Laura B. Bartell

Law Faculty Research Publications

No abstract provided.

State Standing For Nationwide Injunctions Against The Federal Government, Jonathan R. Nash

Faculty Articles

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do …

Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer

Faculty Law Review Articles

There are tremendous disparities between high stakes original actions between states before the US. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …

Separation Of Powers In New Mexico: Item Vetoes, State Policy-Making, And The Role Of State Courts, Michael B. Browde

Mitchell Hamline Law Review

No abstract provided.

School Finance Litigation And The Separation Of Powers, Larry J. Obhof

Mitchell Hamline Law Review

No abstract provided.

State Courts And Democratic Theory: Toward A Theory Of State Constitutional Judicial Review, David Schultz

Mitchell Hamline Law Review

No abstract provided.

Neither Fish Nor Fowl: The Separation Of Powers And The Office Of Administrative Hearings, Ann E. Cohen, Elise Larson

Mitchell Hamline Law Review

No abstract provided.

The “Law Of Ramsey County” – Reflections Of A Trial Judge On State Government Gridlock, Kathleen Gearin

Mitchell Hamline Law Review

No abstract provided.

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen

Dickinson Law Review (2017-Present)

President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …