Jurisdiction | Open Access Articles | Digital Commons Network™

Erie, Swift, And Legal Positivism, Michael S. Green

Popular Media

No abstract provided.

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Testing The Borders: The Boundaries Of State And Local Power To Regulate Illegal Immigration , Brittney M. Lane

Pepperdine Law Review

No abstract provided.

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Piracy Prosecutions In National Courts, Maggie Gardner

Cornell Law Faculty Publications

At least for the time being, the international community must rely on national courts to prosecute modern-day pirates. The first wave of domestic piracy prosecutions suggests, however, that domestic courts have yet to achieve the necessary consistency and expertise in resolving key questions of international law in these cases. This article evaluates how courts trying modern-day pirates have addressed common questions of international law regarding the exercise of universal jurisdiction, the elements of the crime of piracy, and the principle of nullum crimen sine lege. In doing so, it evaluates five decisions issued in 2010 by courts in Kenya, the …

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Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii

Pepperdine Law Review

No abstract provided.

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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 …

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"Perverts," "Terrorists," And Business As Usual: Fantasies And Genealogies Of U.S. Law, Penelope Pether

Cardozo Law Review

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Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet

Pepperdine Law Review

No abstract provided.

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The Post-Iqbal State Of Pleading: An Argument Opposing A Uniform National Pleading Regime, Mark W. Payne

University of Miami Business Law Review

The U.S. Supreme Court's 2009 decision in Ashcroft v. Iqbal placed a squeeze on the once touted liberal Federal Rules of Civil Procedure by requiring judges to consider the veracity of potential plaintiffs' federal claims in light of Iqbal's new heightened pleading standard. This article examines post-Iqbal pleading standards across United States jurisdictions and argues that states should exert caution before choosing to adopt Iqbal's new "plausibility" standard, and if they elect to modify their pleading standards in light of the Iqbal decision, they should also carefully contemplate their method of adoption.

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Forums For International Economic Adjudication: Threads In Fragments, Francis N. Botchway

Cardozo Journal of International and Comparative Law

The article challenges the notion of fragmentation in international law, arguing that the proliferation of international adjudicatory bodies, such as the ICJ, WTO DSB, and ECJ, does not lead to fragmentation but instead fosters integration and coherence in international jurisprudence. It highlights the alignment of procedures, shared sources of law, and interpretative approaches among these bodies, demonstrating that institutional diversity enhances efficiency and enriches international law rather than causing discord. The article emphasizes the role of these institutions in addressing complex legal issues, ensuring legal certainty, and promoting transparency and inclusivity in global dispute resolution.

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The Playground Bully Has Gone Digital: The Dangers Of Cyberbullying, The First Amendment Implications, And The Necessary Responses, Jamie Wolf

Cardozo Public Law, Policy & Ethics Journal

The note argues that cyberbullying has evolved into a significant issue in the digital age, requiring a reevaluation of First Amendment protections and legislative responses. It critiques the current legal framework, particularly the Tinker v. Des Moines standard, for failing to adequately address off-campus speech that impacts the school environment. The author advocates for a balanced approach that protects victims while ensuring due process, emphasizing the need for comprehensive statutes and proactive measures by schools and parents.

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Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner

Michigan Journal of International Law

On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack of …

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Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden

University of Michigan Journal of Law Reform

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes' ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law's disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on …

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Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …

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The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Few questions in the field of Federal Courts have captivated scholars like the question of whether Congress can simultaneously divest both lower federal courts and the U.S. Supreme Court of jurisdiction to hear federal constitutional claims and thereby leave those claims to be litigated in state courts alone. Such a divestiture is known today as “jurisdiction stripping,” and, despite literally decades of scholarship on the subject, scholars have largely been unable to reconcile two widely held views: jurisdiction stripping should be unconstitutional because it deprives constitutional rights of adjudication by independent judges and jurisdiction stripping is nonetheless perfectly consistent with …

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"By Some Other Means": Considering The Executive's Role In Fostering Subnational Human Rights Compliance, Risa E. Kaufman

Cardozo Law Review

The broad realization of human rights domestically requires strong partnership among all levels of government. Indeed, international and domestic law support an important role for state and local governments in implementing the United States's human rights treaty commitments, with the federal government retaining ultimate responsibility. While the federal government's responsibility is clear, its options for fostering and facilitating subnational compliance have not been fully explicated. The United States's human rights treaty ratification practices and recent Supreme Court jurisprudence primarily constrain the executive's ability to compel state and local compliance without congressional authorization. In the absence of such congressional action, the …

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Traveling To The Hague In A Worn-Out Shoe, Friedrich K. Juenger

Pepperdine Law Review

No abstract provided.

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De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan

Michigan Law Review

Playing off the strict requirements of federal diversity jurisdiction, plaintiffs can structure their suits to prevent removal to federal court. A common way to preclude removability is to join a nondiverse party. Although plaintiffs have a great deal of flexibility, they may include only those parties that have a stake in the lawsuit. Put another way, a court will not permit a plaintiff to join a party to a lawsuit when that party is being joined solely to prevent removal. The most useful tool federal courts employ to prevent this form of jurisdictional manipulation is Federal Rule of Civil Procedure …

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The Lay Of The Land: Examining The Three Opinions In J. Mcintyre Machinery, Ltd. V. Nicastro, Adam N. Steinman

Faculty Scholarship

It was a long time coming. The Supreme Court's decisions last Term in J. McIntyre Machinery, Ltd. v. Nicastro and Goodyear Dunlop Tires Operations, S.A. v. Brown ended a two-decade high-court hiatus from the subject of personal jurisdiction. In McIntyre, the more controversial of the two, the Court concludes that New Jersey state courts lacked jurisdiction over a British manufacturer in a suit by a New Jersey plaintiff who was injured in New Jersey by a machine purchased by his New Jersey employer. McIntyre lacks a majority opinion, however. Instead we have a four-Justice plurality authored by Justice Kennedy, a …

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The Fate Of "Unremovable" Aliens Before And After September 11, 2001: The Supreme Court's Presumptive Six-Month Limit To Post-Removal-Period Detention, Megan Peitzke

Pepperdine Law Review

No abstract provided.

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A New Paradigm For The Alien Tort Statute Under Extraterritoriality And The Universality Principle, Jason Jarvis

Pepperdine Law Review

No abstract provided.

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Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

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The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney

Pepperdine Dispute Resolution Law Journal

The 1994 signing of the World Trade Organization (WTO) Agreement marked the initiation of the most far-reaching and comprehensive international agreement on trade in the history of the modern world. The creation of an actual trade organization was a marked improvement over the WTO's predecessor, the 1944 GATT, which never formed an organization per se. Among the many improvements to the GATT, the WTO Agreement substantially changed the mechanism for dispute settlement whenever conflict arose between member states. This change, codified as the Dispute Settlement Understanding ("DSU"), was initially hailed as a great improvement over the GATT dispute settlement provisions. …

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First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …

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The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting

Pepperdine Dispute Resolution Law Journal

On July 18, 2000, as part of the Annual Meeting of the American Bar Association, an all star cast of American and English lawyers gathered in the Common Room of the Law Society of England and Wales in London to simulate oral argument before the International Criminal Court ("ICC"). The fictitious proceedings involved a head of state, President Luis Medema, charged with genocide, war crimes and crimes against humanity. The prosecutors and defense counsel engaged in lively oral argument before the Trial Chamber in the context of three critical issues: (1) jurisdiction of the ICC over citizens of non-state parties; …

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Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim

Pepperdine Dispute Resolution Law Journal

Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …

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Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt

Pepperdine Dispute Resolution Law Journal

Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …

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Full-Text Articles in Jurisdiction

Erie, Swift, And Legal Positivism, Michael S. Green

Popular Media

Testing The Borders: The Boundaries Of State And Local Power To Regulate Illegal Immigration , Brittney M. Lane

Pepperdine Law Review

Piracy Prosecutions In National Courts, Maggie Gardner

Cornell Law Faculty Publications

Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii

Pepperdine Law Review

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

Pepperdine Law Review

"Perverts," "Terrorists," And Business As Usual: Fantasies And Genealogies Of U.S. Law, Penelope Pether

Cardozo Law Review

Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet

Pepperdine Law Review

The Post-Iqbal State Of Pleading: An Argument Opposing A Uniform National Pleading Regime, Mark W. Payne

University of Miami Business Law Review

Forums For International Economic Adjudication: Threads In Fragments, Francis N. Botchway

Cardozo Journal of International and Comparative Law

The Playground Bully Has Gone Digital: The Dangers Of Cyberbullying, The First Amendment Implications, And The Necessary Responses, Jamie Wolf

Cardozo Public Law, Policy & Ethics Journal

Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner

Michigan Journal of International Law

Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden

University of Michigan Journal of Law Reform

Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

The Constitutionality Of Federal Jurisdiction-Stripping Legislation And The History Of State Judicial Selection And Tenure, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

"By Some Other Means": Considering The Executive's Role In Fostering Subnational Human Rights Compliance, Risa E. Kaufman

Cardozo Law Review

Traveling To The Hague In A Worn-Out Shoe, Friedrich K. Juenger

Pepperdine Law Review

De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan

Michigan Law Review

The Lay Of The Land: Examining The Three Opinions In J. Mcintyre Machinery, Ltd. V. Nicastro, Adam N. Steinman

Faculty Scholarship

The Fate Of "Unremovable" Aliens Before And After September 11, 2001: The Supreme Court's Presumptive Six-Month Limit To Post-Removal-Period Detention, Megan Peitzke

Pepperdine Law Review

A New Paradigm For The Alien Tort Statute Under Extraterritoriality And The Universality Principle, Jason Jarvis

Pepperdine Law Review

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

The Dispute Settlement Understanding Of The Wto Agreement: An Inadequate Mechanism For The Resolution Of International Trade Disputes, Sean P. Feeney

Pepperdine Dispute Resolution Law Journal

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

The Icc Prosecutor V. President Medema: Simulated Proceedings Before The International Criminal Court , Pieter H. F. Bekker, David Stoelting

Pepperdine Dispute Resolution Law Journal

Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim

Pepperdine Dispute Resolution Law Journal

Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt

Pepperdine Dispute Resolution Law Journal

Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

Contracting Around Ruaa: Default Rules, Mandatory Rules, And Judicial Review Of Arbitral Awards, Christopher R. Drahozal

Pepperdine Dispute Resolution Law Journal

Forum Selection Clauses In Attorney-Client Agreements: The Exploitation Of Bargaining Power, Jennifer Dempsey

West Virginia Law Review

Welcome To The Jungle: Rethinking The Amount In Controversy In A Petition To Vacate An Arbitration Award Under The Federal Arbitration Act, Christopher L. Frost

Pepperdine Law Review