Jurisdiction Commons^™

Dissell V. Trans World Airlines: Constitutional Limitations On The Workers' Compensation Commission's Subject-Matter Jurisdiction, Patricia A. Nelson-Reade

Maine Law Review

To rule upon a workers' compensation claim, the Maine Workers' Compensation Commission must determine that it has both personal and subject-matter jurisdiction. Personal jurisdiction is determined by applying Maine's "long-arm" statute. Subject-matter jurisdiction derives from the Commission's status as an administrative agency authorized to administer the Maine Workers' Compensation Act (MWCA). Although subject-matter determination generally involves a choice-of-law issue, in a workers' compensation claim having extraterritorial aspects, the Commission is not free to apply the compensation acts of other states that have contacts with the claim. Rather, the Commission may determine only if it has authority under the MWCA to …

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

China's Rule Of Law From A Private International Law Perspective, King Fung Tsang

Georgia Journal of International & Comparative Law

No abstract provided.

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional …

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.

The Export Trade Note: A New Instrument For International Trade, Eugene A. Ludwig, Michael J. Coursey

Georgia Journal of International & Comparative Law

No abstract provided.

International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings

Georgia Journal of International & Comparative Law

No abstract provided.

American And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Georgia Journal of International & Comparative Law

No abstract provided.

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.

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Pepperdine Law Review

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …

The Repressible Myth Of Shady Grove, Kevin M. Clermont

Cornell Law Faculty Publications

This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule's coverage, …

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow

Articles

Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.

Aggregation And Choice Of Law, Edward H. Cooper

Articles

This is more a conversational gambit than an article. I address a question at the intersection of procedure and choice of law, speaking as a proceduralist rather than a choice-of-law scholar. The question - which may be two questions - addresses the potential interdependence of procedural aggregation devices and choice of law. One part of the question is whether aggregation can justifiably change the choice of law made for some part of an aggregated proceeding. The other part is whether choice-of-law principles can be adapted to facilitate procedurally desirable aggregation. Answers may be sought either in abstract theory or in …

The Effects Test: Extraterritoriality’S Fifth Business, Austen L. Parrish

Articles by Maurer Faculty

American laws increasingly regulate the conduct of foreigners abroad. The growth in extraterritorial laws, in no small part, can be traced to the effects test - a doctrine that instructs courts to presume that Congress intended to regulate extraterritorially when foreign conduct is found to have a substantial effect within the United States. For many scholars and lawyers, the effects test is the doctrinal lynchpin for determining the geographic reach of domestic laws. Territorial limits on legislative jurisdiction, on the other hand, are seen as anachronistic; a remnant of a pre-modern, pre-globalized world.

This article takes a different, more skeptical …

The Myth (And Realities) Of Forum Shopping In Transnational Insolvency, John A. E. Pottow

Articles

A decade ago, in 1996, the landscape of transnational insolvencies was vastly different from today. The UNCITRAL Model Law had not been finished, the efforts at the E.U. Insolvency Treaty were jeopardized by mad cows, and no one had heard of Chapter 15. Now, all three universalist projects are up and running, putting universalism in a comfortable state of ascendancy. The paradigm has not been without critics, however, the most persistent and eloquent of which has been Professor Lynn LoPucki. LoPucki has periodically attacked universalism on a number of grounds. These grievances include a sovereigntist complaint of universalism's insensitivity to …

Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow

Articles

The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider "American" companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for "best practices" bankruptcy codes. Scholars vary …

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Theory Wars In The Conflict Of Laws, Louise Weinberg

Michigan Law Review

Fifty years ago, at the height of modernism in all things, there was a great revolution in American choice-of-law theory. You cannot understand what is going on in the field of conflict of laws today without coming to grips with this central fact. With this revolution, the old formalistic way of choosing law was dethroned, and has occupied a humble position on the sidelines ever since. Yet there has been no lasting peace. The American conflicts revolution is still happening, and poor results are still frustrating good intentions. Now comes Dean Symeon Symeonides, the author of the choice of- law …

Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow

Articles

The headline-grabbing business failures of late have brought increased attention to the relatively unresolved area of multinational bankruptcies. Parmalat, Global Crossing, and United Airlines are among the few international juggernauts that have foundered. In the financial meltdowns of these cross-border institutions, assets and creditors are dispersed throughout commercial environments that rarely end neatly at national borders. There has been heated debate, both in scholarly literature and the practical battlefield, over how best to resolve these transnational insolvencies, and there is nothing yet approaching a consensus. Reform efforts of various stripes have almost uniformly failed to gain meaningful international support. At …

Interjurisdictional Preclusion, Howard M. Erichson

Michigan Law Review

Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. With great frequency, multiple lawsuits arise out of single or related transactions or events. Mass tort litigation and complex commercial litigation provide the most emphatic examples, but the phenomenon of multiple related lawsuits extends to every …

Copyright Without Borders? Choice Of Forum And Choice Of Law For Copyright Infringement In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders.

My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright …

Transfer And Choice Of Federal Law: The Appellate Model, Robert A. Ragazzo

Michigan Law Review

In light of recent developments, a reexamination of the position that transferee federal law applies regardless of the context is in order. This article argues that the consensus that existed prior to the Marcus article and the Korean Air Lines case, although not based upon the most thorough analysis, comprises the better view: transferee federal law should apply after permanent but not MDL transfers.

Professional Responsibility And Choice Of Law: A Client-Based Alternative To The Model Rules Of Professional Conduct, Colin Owyang

University of Michigan Journal of Law Reform

Because of the increasingly interstate nature of legal practice during the past few decades, practitioners licensed in multiple jurisdictions have been forced more frequently to confront choice-of-law dilemmas in the area of professional responsibility. Although most states have adopted fairly uniform regulations on professional ethics, only the recently amended American Bar Association's Model Rules of Professional Conduct contain a specific provision that addresses the choice-of-law problem in the professional responsibility context. This Note outlines certain ethical considerations facing the multistate practitioner and argues that the choice-of-law provision in the Model Rules of Professional Conduct provides insufficient clarity and predictability where …

Choosing Law With An Eye On The Prize, Russell J. Weintraub

Michigan Journal of International Law

Review of Choice of Law and Multistate Justice by Friedrich K. Juenger

Interstate Consolidation: A Comparison Of The Ali Project With The Uniform Transfer Of Litigation Act (American Law Institute Complex Litigation Project: A Symposium, In Memoriam Donald Theodore Trautman), Edward H. Cooper

Articles

The Uniform Transfer of Litigation Act (UTLA) was undertaken for purposes simpler than the mass consolidation of multiparty, multiforum litigation. It seeks to create an effective tool that can be used to reduce some of the artificial barriers that tradition has erected around the sovereign separateness of the many different court systems in this country. The fact of separate sovereignty must be recognized, however, and to this end consent of both transferring and receiving courts is required. Within the consent requirement, transfer from the court system of one sovereign to the court system of another can improve on present practices …

The Proper Forum For A Suit: Transnational Forum Non Conveniens And Counter-Suit Injunctions In The Federal Courts, William L. Reynolds

Faculty Scholarship

No abstract provided.

On The Need For A Uniform Choice Of Law Code, Larry Kramer

Michigan Law Review

At first blush, the notion of a uniform choice of law code seems almost paradoxical. After all, the primary mission of the National Conference of Commissioners on Uniform State Laws (NCCUSL) is to promote uniformity in the law, while choice of law exists only because laws are not uniform. To be sure, the Constitution of the NCCUSL limits the organization's objective to promoting uniformity "where uniformity is desirable and practicable," which leaves plenty of room for different laws and hence for choice of law. But even so, one would expect the Commissioners to devote their limited resources to reducing the …