Jurisdiction Commons^™

Sovereign Litigants: Native American Nations In Court, Catherine T. Struve

Villanova Law Review (1956 - )

No abstract provided.

One Nation, Under Securities Fraud: The Third Circuit Notches A Win For Federalism In In Re Lord Abbett Mutual Funds Fee Litigation, Ethan H. Townsend

Villanova Law Review (1956 - )

No abstract provided.

The Next Generation Of Online Dispute Resolution: The Significance Of Holography To Enhance And Transform Dispute Resolution, Susan Nauss Exon

Cardozo Journal of Conflict Resolution

Many scholars have written about the use of various technologies used to enhance or transform face-to-face alternative dispute resolution (ADR) processes. Whether termed online dispute resolution (ODR), cybermediation, also known as online mediation, cybercourt, electronic courthouse, virtual courtroom, virtual ADR, video conferencing, or telepresence, each of these technological advances revolves around the use of the Internet or some form of technology to facilitate long-distance, virtual communication without the necessity of physical travel or face-to-face contact. Most scholars have ignored holography, which is the next generation of technology, or perhaps we can more aptly refer to it as a current, unsung …

A Sense Of Duty: The Illusory Criminal Jurisdiction Of The U.S./Iraq Status Of Forces Agreement, Chris Jenks

Faculty Journal Articles and Book Chapters

The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA – criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that …

The Inherent Jurisdiction Of Wto Tribunals: The Select Application Of Public International Law Required By The Judicial Function, Andrew D. Mitchell, David Heaton

Michigan Journal of International Law

This Article explores whether World Trade Organization (WTO) panels and the Appellate Body (WTO Tribunals) have the power to apply certain rules of public international law by reason of their judicial character, and because the application of these rules is necessary for the proper exercise of their judicial function. In other words, it seeks to answer the following questions: Do WTO Tribunals have inherent jurisdiction? And, if so, what are some of the rules applicable under and limitations on this jurisdiction?

National Jurisdiction And Global Business Networks (Earl A. Snyder Lecture In International Law), Hannah Buxbaum

Indiana Journal of Global Legal Studies

Earl A. Snyder Lecture in International Law, November 1, 2007, Lauterpacht Centre for International Research, University of Cambridge.

Personal Jurisdiction Over Foreign Directors In Cross-Border Securities Litigation, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

Duplicative Foreign Litigation, Austen L. Parrish

Articles by Maurer Faculty

What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings - and the waste inherent in such duplication - becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.

The federal courts, however, do not yet have a coherent response to the problem. They apply …

A Review Of The Law In Jurisdictions Requiring Electronic Recording Of Custodial Interrogations, Alan M. Gershel

Richmond Journal of Law & Technology

Although not constitutionally required, it has become considerably more commonplace for law enforcement to electronically record a suspect’s custodial interrogation. This includes a complete recording, beginning with the advice of rights and continuing through the end of the interrogation. In fact, society now recognizes it as a useful, if not necessary, tool for law enforcement.

“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl

Barry Law Review

This paper will argue that, in the absence of effective alternatives, the new law granting court-martial jurisdiction over civilians is a necessary step in effectively controlling crimes by private contractors and other civilians accompanying U.S. armed forces overseas if other measures are not effectuated. Part II will look at two important Supreme Court decisions that currently restrict the military’s ability to court-martial civilians, and it will also highlight the government’s attempts over the past 50 years to come up with a solution to the problem. Part III will examine three alternatives to the amendment to Article 2(a)(10) that could make …

Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran

Articles

In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his …

The Foreign Commerce Clause, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article comprehensively addresses Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s legislative authority. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and …

Estate Of Pew V. Cardarelli, Natallia Krauchuk

NYLS Law Review

No abstract provided.

Their Love Is Here To Stay: Why The Supreme Court Cannot Turn Back The Hands Of Time, Marsha B. Freeman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Kesalahan-Kesalahan Matrimoni Dalam Kes Perceraian Di Luar Mahkamah Dan Tanpa Kebenaran Mahkamah : Kajian Di Mahkamah Syariah Negeri Selangor Darul Ehsan., Mazlan Abd Manan

Student Works (2010-2019)

There is no specific nas (justification) provided in the Al-Quran and the Al-Sunnah with regards to divorce outside the Court without due permission. However, over the years this ongoing problem has led the scholars to view their justifications on the matter. In view of this, the purpose of this dissertation is to feature the study on divorce cases outside Court and without the Court’s permission and its implementation to Malaysian law specifically in reference to cases from the Syariah Courts in Selangor. The Selangor Islamic Family Law Enactment 1984 for instance, as proposed by the Syariah Court has come up …

Isu-Isu Dalam Kes Harta Sepencarian Di Mahkamah Syariah Singapura : Satu Analisis., Idham Halid Romli

Student Works (2010-2019)

This study discusses the issues of harta sepencarian (jointly-accumulated wealth) in the Syariah Court of Singapore. The objectives of this study are to examine the meaning and interpretation of harta sepencarian, and the influence of direct and indirect contributions in determining the amount received by the husband and wife from the harta sepencarian. Although the AMLA has provided general guidelines and interpretation on the factors which need to be taken into consideration when determining the distribution of harta sepencarian, but these guidelines do not distinguish between the main and supporting factors. Through literature studies, case-studies of Court cases and interviews, …

Penguatkuasaan Kesalahan Jenayah Islam Di Brunei Darussalam., Suhaimi Haji Gemok

Student Works (2010-2019)

Successful law depends on its effective enforcement. This rule applies within the enforcement of Islamic criminal law. Based on the Islamic principle of ‘al-Amru bi al-Makruf wa al-Nahyu an al-Munkar', the government and public are obliged to ensure that it is carried out. This research focuses on the issue of enforcement with several objectives, firstly, to discuss the concept of criminal enforcement according to the Islamic law. Secondly, to evaluate the historical development of criminal enforcement in Brunei Darussalam. Thirdly, to identify and analyse current issues and problems facing the religious enforcement unit in enforcing syariah criminal offences. These objectives …

Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Competence And Member State Autonomy: Causality, Consequence And Legitimacy, Paul Craig

Articles by Maurer Faculty

The scope of EU competence and the limits on Member State autonomy can validly be analyzed from a variety of perspectives. This chapter considers one such perspective, the prevailing concern about the scope and exercise of EU competence. This concern is often based on the premise that some reified entity called the EU has increasingly arrogated power, with a consequent diminution of national autonomy that the Member States have been unable to resist, and the ECJ is frequently regarded as bearing primary responsibility. it will however be argued in the first half of this chapter that the Community courts were …

Katrina, Federalism, And Military Law Enforcement: A New Exception To The Posse Comitatus Act, Sean Mcgrane

Michigan Law Review

In the days following Hurricane Katrina, as lawlessness and violence spread throughout New Orleans, the White House considered invoking the Insurrection Act so that members of the U.S. military could legally perform law enforcement functions inside the flooded city. This Note contends that the White House's decision not to invoke the Act was substantially driven by federalism concerns-in particular, concerns about intruding on Louisiana's sovereignty. But, this Note further contends, in focusing so heavily on these state sovereignty concerns, the White House largely ignored the other side of the 'federalism coin "-namely, enabling the federal government to act where national …

Significance Of The Fujimori Trial, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Cooperative Interbranch Federalism: Certification Of State-Law Questions By Federal Agencies, Verity Winship

Vanderbilt Law Review

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as "help[ing] build a cooperative judicial federalism." This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware's recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies. Certification from federal agencies to …

The Federal Arbitration Act After Alafabco: A Case Analysis, Benjamin D. Tievsky

Cardozo Journal of Conflict Resolution

In late 2009, a divided Supreme Court of Washington held in Satomi Owners Ass'n v. Satomi, L.L.C. that the arbitration provision in a warranty addendum to a sales contract between a condominium developer and an owners' association was enforceable. Specifically, the court held that the provision was within the reach of the Federal Arbitration Act, and that a Washington state statute preserving the parties' right to litigate with regard to the warranty addendum was therefore preempted. This Note will explore the potential importance of this decision for defining the contours of the applicability of the Federal Arbitration Act (at least …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Precarious Pathways: Evaluating The Provincial Nominee Programs In Canada, Jamie Baxter

Articles, Book Chapters, & Popular Press

Temporary foreign workers in Canada experience substandard employment relationships, are explicitly denied many formal rights and are practically excluded from most employment protections. Led by a growing emphasis on workers’ temporary status as a root cause of their employment-related vulnerabilities, some advocates, as well as elected officials, are now calling on governments to improve opportunities for workers to attain permanent residency in Canada, primarily for those in lower-skilled occupations. The central aim of this paper is to evaluate whether Provincial Nominee Programs are likely to address the real insecurities faced by vulnerable lower-skilled temporary foreign workers. Given that there are …

Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld

Articles

Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Publications

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Faculty Publications

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states.T his limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …

Another Blow To Tribal Sovereignty: A Look At Cross-Jurisdictional Law-Enforcement Agreements Between Indian Tribes And Local Communities, Andrew G. Hill

American Indian Law Review

No abstract provided.

Federal Preemption: A Roadmap For The Application Of Tribal Law In State Courts, Jackie Gardina

American Indian Law Review

This article contends that state courts are not necessarily free to apply state law when the courts are exercising concurrent adjudicative jurisdiction with tribal courts. Instead, Indian law principles of preemption direct state courts to apply tribal law in certain cases. A guiding principle emerges from the preemption analysis: if a tribe has legislative jurisdication over the dispute, tribal law must ordinarily be applied. In these instances, a state's laws, including its choice-of-law rules, are preempted by federal common law because their application interferes with the federal government's and the tribes' interest in promoting tribal self-government, including the tribes' ability …