Jurisdiction Commons^™

A New Research Programme For International Relations And International Law: Jurisdiction, Capitalism, And Imperialist Infrastructures, Maïa Pal

National Law School of India Review

This article argues that Chimni’s proposed framework for historically and theoretically reconceptualising jurisdiction in ‘The international law of jurisdiction: A TWAIL perspective’ has important implications for a much-needed renewed encounter between the disciplines of International Law and International Relations. It begins by summarising the contribution of Chimni’s article in terms of its two historical and theoretical contributions. It then focuses on the theoretical reconceptualization of jurisdiction as structurally interdependent with capitalism and sovereignty, rather than territory and sovereignty as found in mainstream and liberal approaches. Moreover, Chimni’s article fills gaps in critical approaches by thinking of jurisdiction in more material …

The Space Between Jurisdiction And Sovereignty, Asha Kaushal

National Law School of India Review

This Comment examines the relationship between jurisdiction and sovereignty in the context of Chimni’s principle of subaltern internationalism. When viewed from the perspective of decolonisation and self-determination, jurisdiction pulls against Third World spaces for governance. Instead, it deploys jurisdiction as a limiting legal instrument. I suggest that mainstream international law has relied upon—exploited, even—the space between jurisdiction and sovereignty to withhold the full realisation of self-determination from developing states. Drawing on the case study of East Timor, the Comment examines the many faces of jurisdiction on the plane of mainstream international law.

Rapporteur Report, Shwetha Ramachandran, Laavanya Tewari, Chayan B.P., Manvi Sahni

National Law School of India Review

XVI NLSIR Symposium: TWAIL Approaches to Jurisdiction [Volume 35(2)].

Charting Extraterritoriality: Jurisdiction, Corporate Conduct, And Environmental Harm, Kalika Mehta

National Law School of India Review

Chimni’s TWAIL critique of the principle of jurisdiction, the subject of this symposium, implicates its development with the evolution of capitalism. Against this backdrop, this paper uniquely focuses on international criminal law and the selective application of principle of extraterritorial jurisdiction, particularly its exclusion of corporate entities from prosecution for large-scale violence. Through an analysis that engages with Chimni’s critique, the paper illustrates how these extraterritorial prosecutions align with the mainstream liberal theory of jurisdiction, while also exposing gaps in corporate accountability. Further, the paper contributes to ongoing legal reform debates by exploring the proposed international crime of ecocide, a …

Human Rights And Jurisdictional Trajectories: Shedding Light On The Colonial Genealogy, Rongeet Poddar

National Law School of India Review

International law’s tryst with colonialism has continued to have a significant bearing on the shifting sands of jurisdiction in relation to human rights enforcement. Even as the apparition of empire loomed large over Third World states, a ‘universal’ yet non- binding catalogue of human rights had become reality with the birth of the UDHR. As recognized in Article 2 of the document, peoples of non-self-governing territories could also not be deprived of their human rights. However, hopes were belied when the ECHR, as the first binding post-War human rights instrument, was accompanied by a restrictive jurisdiction clause. The original Article …

Territoriality Of Satellites In The Leo: ‘Jurisdiction Without Territory’ Beyond Earthly Frontiers, Priyansh Dixit

National Law School of India Review

Successes in outer space are often seen as belonging to humankind. But what exactly does humankind mean? In line with TWAIL, I cannot agree that it refers to the collective distribution of benefits to all states or individuals. Rather, these successes and the benefits that flow from them are disproportionately allocated to the first world. This is even though the advantage of the first world is a direct consequence of centuries of colonialism and exploitation. In this backdrop, I argue that the exercise of jurisdiction in the Low Earth Orbit (‘LEO’) creates a kind of territoriality that is used to …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

Law Faculty Publications

Drug courts-and the litany of other problem-solving courts that soon followed in their wake-began as a series of small-scale judicial experiments in criminal punishment reform. They were earnest efforts by criminal court judges to redress an issue that they were well-equipped to see: many people were returning to their courtrooms time and again, often for low-level drug charges, and at a time when court dockets were ballooning because of tough-on-crime arrest and prosecution policies. Early drug court judges combined their power to punish with their authority to control their dockets to create specialized court calendars aimed at providing substance abuse …

The Rise Of General Jurisdiction Over Out-Of-State Enterprises In The United States, Peter Hay

Emory International Law Review

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court …

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Tying Parallel Proceedings To Judgment Recognition: Harmonizing Cross-Border Dispute Resolution, Louise Ellen Teitz

Law Faculty Scholarship

No abstract provided.

To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.

This Article contends that the current approach to democratization is …

Jefferson's Ghost: The Local Action Rule In Federal Courts, Jeffrey L. Rensberger

Cardozo Law Review

The local action rule required that certain actions concerning real property be adjudicated in the federal court in the state (and perhaps the district) containing the property. This rule had been apart of the law of the United States since the early days of the nation. In 2011, Congress eliminated the local action rule as a matter of venue. But some courts have held that the local action rule pertains to subject matter jurisdiction, not merely venue, and that it survived Congress's elimination of the venue aspect of the rule. This is wrong as to cases in federal court involving …

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …

Two Countries In Crisis: Man Camps And The Nightmare Of Non-Indigenous Criminal Jurisdiction In The United States And Canada, Justin E. Brooks

Vanderbilt Journal of Transnational Law

Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous …

Service Out Under The New Rules Of Court, Ian Mah, Aaron Yoong

Research Collection Yong Pung How School Of Law

The new Rules of Court 2021 seek to provide a more accessible and efficient justice system. The extensiveness of the overhaul, however, brings with it as much unfamiliarity as excitement. This legislation comment examines the changes in the provisions governing service out of jurisdiction and argues that the textual changes also effect substantive changes to how the law is applied. This comment also explores the related issues on the grant of Mareva injunctions in aid of foreign proceedings under the new Rules of Court 2021.

Catch And Release Jurisdiction, Adam B. Sopko

Michigan Law Review Online

In Catch and Kill Jurisdiction, Professor Zachary Clopton sheds light on an increasingly common phenomenon in which federal courts are expanding the power of the federal judiciary in a way that frustrates the enforcement of substantive rights. Federal courts expansively interpret their jurisdiction to reach cases that arguably belong in state court, then apply federal procedural doctrines to dismiss the cases on non-merits grounds. First catch, then kill. Clopton argues we find catch and kills when the federal court system is not overly burdened and in areas where federal judges are “hostile” to a class of claims or litigants. Catch …

Jurisdiction And The Moral Impact Theory Of Law, Michael S. Green

Faculty Publications

Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community’s law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense …

A Jurisprudential Quilt Of Tribal Civil Jurisdiction: An Analysis Of Tribal Court Approaches To Determining Civil Adjudicatory Jurisdiction, Jacob Maiman-Stadtmauer

American Indian Law Journal

There are hundreds of Native American Tribes with their own judicial systems and courts. Under the test first established in Montana v. United States, the Supreme Court of the United States has provided a single, nebulous standard for determining the limits of tribal courts’ jurisdiction over non-Indians. Scholars and federal jurists have long assumed that the Supreme Court's framework limiting tribal civil jurisdiction is essential to how tribal courts determine jurisdiction. This paper challenges that assumption. Through a first of its kind survey of tribal court decisions on civil jurisdiction, spanning 26 tribes and covering 71 decisions, this paper …

Running On Empty: Ford V. Montana And The Folly Of Minimum Contacts, James P. George

Faculty Scholarship

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability …

Ford V. Where Are We?: The Revival Of The Sliding Scale To Govern The Supreme Court's New "Relating To" Personal Jurisdiction, Zois Manaris

William & Mary Law Review

This Note proposes a test to govern “relating to” specific jurisdiction, a variation on a theme to those familiar with the doctrine: a “sliding scale” approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases to serve as a check on the sliding scale. Part I of this Note explains the “sliding scale” approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note’s proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this Note’s …

What It Takes: A Statistical Analysis Of Arkansas Supreme Court’S Petition For Review Process, Justice Rhonda Wood, Jessica Finan Patterson, Brian W. Johnson

University of Arkansas at Little Rock Law Review

No abstract provided.

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger A. Fairfax Jr.

Cardozo Law Review

With the Supreme Court’s recent incorporation—in Ramos v. Louisiana—of the Sixth Amendment’s jury unanimity requirement to apply to the states, the project of “total incorporation” is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government, but also the states—with one exception. The Fifth Amendment’s grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the earliest incorporation …

Disinformation On Trial: Fighting Foreign Disinformation By Empowering The Victims, Ari B. Rubin

Cardozo Law Review

Foreign disinformation catapulted into the national spotlight with the 2016 presidential election, but its impact is not confined to the electoral map or season. This Article addresses the threat of foreign disinformation by proposing a new statute: a private right of action, enabling harmed persons to directly sue state or private actors, foreign or domestic, who knowingly or recklessly spread disinformation from abroad. Scholars and policymakers have proposed other, far-flung solutions ranging from greater online security to outright censorship. Each of those ideas stumbles on common challenges and lacks a valuable ingredient: an interested party, directly harmed by the foreign …

Omar Effendi Vs. Union Fenosa: Corruption As A Transnational Public Policy Consideration, Ahmed Badr Eldin

Theses and Dissertations

At the beginning of 2011, Egypt witnessed radical political developments that led to the emergence of a pressing tendency to adjudicate the collapsed regime’s policies and practices. Shortly thereafter, the Egyptian State Council issued a number of judicial decisions that confirmed that the sale of the privatized governmental enterprises had been tainted by corruption. Crucially, the Court maintained that flagrant breach of law, regulations, and administrative orders that encompassed these transactions created serious suspicions about corruption committed by public officials and investors. It concluded that the existence of corruption, as a transnational public policy consideration, had deprived foreign investors of …

Extraordinary Writ Or Ordinary Remedy? Mandamus At The Federal Circuit, Jonas Anderson, Paul R. Gugliuzza, Jason Rantanen

Utah Law Faculty Scholarship

Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if, among other things, the ruling was indisputably wrong and the party seeking mandamus has no other way to get relief. This exacting standard stems from mandamus’s origin as one of the common law’s “extraordinary” writs. Federal courts of appeals typically issue mandamus once or twice per year at most. 

In patent cases, however, mandamus is a remarkably ordinary form of …

Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer

Touro Law Review

The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world.

Is Partisan Gerrymandering Unconstitutional? Rethinking Rucho V. Common Cause, Barnett J. Harris

University of San Francisco Law Review

No abstract provided.

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Notre Dame Law Review

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …