Jurisdiction Commons^™

Shedding New Light On An Old Debate: A Federal Indian Law Perspective On Congressional Authority To Limit Federal Question Jurisdiction, Kevin J. Worthen

Faculty Scholarship

Examining the ongoing debate concerning congressional power to eliminate federal court jurisdiction over cases arising under federal law from thefederal Indian law viewpoint allows consideration of the issues in a concrete setting. Experience under the Indian Civil Rights Act during the last twenty years indicates that some federal review of actions arising under federal law is needed if the command of the supremacy clause is to be fully effectuated. At the same time, it indicates that a uniform interpretation of that federal law is not essential to the enforcement of the clause. This examination thus provides support for the distributive …

Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins

Publications

No abstract provided.

Toward A Unified Theory Of The Jurisdiction Of The United States Courts Of Appeals, Thomas E. Baker

Faculty Publications

No abstract provided.

Federal Jurisdiction, Ronald J. Mann

Faculty Scholarship

One important task of the federal judiciary is to resolve cases presenting tensions between national and state governments. The United States Court of Appeals for the Fifth Circuit justly is renowned for its work in this area. One major, if not sensational, arena in which these tensions surface is in cases presenting issues of federal jurisdiction, pursuant to which federal courts allocate power between the national and state judicial systems.

During the survey period the Fifth Circuit published almost one hundred opinions dealing with substantive issues of federal jurisdiction. Like others before me, I have not undertaken in this essay …

The Use Of Anti-Suit Injunctions In International Litigation, George A. Bermann

Faculty Scholarship

Of the various forms of provisional relief in the context of inter-national litigation, none has sparked as much interest and controversy as the international anti-suit injunction. In many ways the international anti-suit injunction, an instrument by which a court of one jurisdiction seeks to restrain the conduct of litigation in another jurisdiction, resembles more conventional forms of international provisional relief such as the foreign attachment or preliminary injunction. Like them, the anti-suit injunction affords courts an important opportunity to affect the course and significance of litigation abroad. However, such intervention strongly implies – and often actually creates – jurisdictional conflict …

The Prospects For Enforcing Monetary Judgments Of The International Court Of Justice: A Study Of Nicaragua's Judgment Against The United States, Mary Ellen O'Connell

Articles by Maurer Faculty

No abstract provided.

A Revisionist Theory Of Abstention, Barry Friedman

Michigan Law Review

This article offers a straightforward model for identifying cases in which abstention threatens federal rights - and so is inappropriate and cases in which federal rights are not so threatened and state interests require abstention. Part I provides some background on the abstention doctrines, clarifying· the competing premises that must be reconciled in order to develop a coherent, unified abstention doctrine. Part II then sets out the basis for the revisionist theory and the manner in which it would operate, arguing that a federal trial forum only need be - and only should be - available where necessary to protect …

Dispelling The Myths Of Pendent And Ancillary Jurisdiction: The Ramifications Of A Revised History, Mary Brigid Mcmanamon

Washington and Lee Law Review

No abstract provided.

Equitable Distribution Requires Equitable Valuation: A Proposal For Amending New York's Equitable Distribution Law, Jacqueline B. Stuart

Cardozo Law Review

No abstract provided.

Federal Jurisdiction To Enforce A Settlement After Vacating A Dismissal Order Under Rule 60(B)(6), Alyson M. Weiss

Cardozo Law Review

No abstract provided.

Going To Court, Internationally, Detlev F. Vagts

Michigan Law Review

A Review of The International Court of Justice at a Crossroads Edited by Lori Fisler Damrosch

Forum-Selection Clauses: Should State Or Federal Law Determine Validity In Diversity Actions?—Stewart Organization, Inc. V. Ricoh Corp., 108 S. Ct. 2239 (1998), Eric Fahlman

Washington Law Review

Forum-selection clauses are contractual provisions that confine future litigation to particular courts. Such clauses are common in interstate contracts despite uncertainty concerning their validity. Before Stewart Organization, Inc. v. Ricoh Corp., the circuit courts were divided as to whether federal courts with diversity jurisdiction were compelled to determine forum-selection clause validity in accordance with state law, as directed by Erie R.R. Co. v. Tompkins. In Stewart, the United States Supreme Court ruled that federal courts did not have to apply state law. Instead, the court held that the federal transfer statute, 28 U.S.C. § 1404(a), governed forum-selection clause validity. A …

An Inquiry Regarding The International And Domestic Legal Problems Presented In United States V. Noriega, Mark Andrew Sherman

University of Miami Inter-American Law Review

No abstract provided.

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

Scholarly Works

The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set …

A New Litany Of Personal Jurisdiction, Margaret G. Stewart

All Faculty Scholarship

No abstract provided.

From Cutlass To Cat-O'-Nine Tails: The Case For International Jurisdiction Of Mutiny On The High Seas, George P. Smith Ii

Michigan Journal of International Law

This article will first discuss the historical background of mutiny, describing several of the major mutinies at sea that have been of interest to legal historians. Then will come an analysis of the history of piracy and an exploration of its symbiotic relationship with mutiny. Subsequent analysis will be given over to municipal law provisions outlawing mutiny - with concentration placed on the postures taken by those nation-states which subscribe to or are guided by the common law. A study of those relevant principles of international law regarded as controlling, as a consequence of historical vectors of force and municipal …

United States V. Palestine Liberation Organization: Continued Confusion In Congressional Intent And The Hierarchy Of Norms, Andrew R. Horne

Michigan Journal of International Law

This Note concludes that while the court's rationale is disingenuous and misleading, the final decision was an appropriate reaffirmation of the importance which American jurisprudence places on international obligations. In Part One, this Note discusses whether the dispute resolution provisions of the Headquarters Agreement precluded the district court's jurisdiction over the parties and subject matter of this case. Part Two examines the constitutional hierarchy of the ATA and the Headquarters Agreement to determine which should govern this dispute. If the court had concluded that it lacked jurisdiction, the case would have been dismissed from the U.S. court system, leaving the …

Remarks To Litigation Department, Cahill, Gordon & Reindel, Roger J. Miner '56

Law Practice

No abstract provided.

Jurisdiction Over Foregin Flag Vessels And The U.S. Courts: Adrift Without A Compass?, Stefan A. Riesenfeld

Michigan Journal of International Law

Jurisdiction of a nation over vessels flying a foreign flag and over persons aboard such vessels should be a relatively simple and well settled matter. The sad fact, however, is that it is not. Moreover, the recent 1986 Maritime Drug Law Enforcement Act has added unnecessary and unexplainable confusion.

History Comes Calling: Dean Griswold Offers New Evidence About The Jurisdictional Debate Surrounding The Enactment Of The Declaratory Judgment Act, Donald L. Doernberg, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In a recent article, we proposed that the Declaratory Judgment Act of 1934 was intended, contrary to the Supreme Court's long-standing interpretation, to enlarge the subject matter jurisdiction of the federal courts. When Congress considered the Act, jurisdictional concerns centered around whether declaratory judgments would violate the case-or-controversy clause, not whether introduction of the device would expand the federal question jurisdiction Congress already had authorized. There is, indeed, substantial evidence that Congress intended to expand federal question jurisdiction to include at least two, and possibly three, case models; there is virtually no evidence supporting the contrary position taken by the …

Isolationism Or Deference? The Alien Tort Claims Act And The Separation Of Powers, Victor A. Pappalardo

Michigan Journal of International Law

This Note examines the rationales behind Filartiga and other cases which have had the opportunity to pass upon its holding, notably the holdings in Tel-Oren v. Libyan Arab Republic and Forti v. Suarez- Mason. It then focuses on the validity of these rationales with respect to the constitutional separation of powers scheme. In so doing, it analyzes Filartiga's conclusions in light of the act of state and political question doctrines, two closely interrelated doctrines which have been at the forefront of the separation of powers criticisms of Filartiga. This Note concludes by suggesting that a clear case exists …

Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren

Cleveland State Law Review

A major obstacle facing an attorney, whose client is suing a state in federal court under a right created by a federal law, is the restraints placed on the federal court's jurisdiction by the eleventh amendment to the United States Constitution. The purpose of this article is to provide assistance through this wonderland of eleventh amendment jurisprudence. This article examines three major eleventh amendment issues, plus-and perhaps more importantly-methods of avoiding eleventh amendment litigation. Section I of the article examines the historical evidence on whether the amendment was intended to apply to cases in which a citizen of a state …

The Trojan Horse: How The Declaratory Judgment Act Created A Cause Of Action And Expanded Federal Jurisdiction While The Supreme Court Wasn't Looking, Donald L. Doernberg, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article examines the Court's treatment of declaratory judgment actions. It demonstrates that the Court's ‘procedural only’ view of the Act frustrates congressional intent and is neither analytically sound nor practical. Part I discusses the general rules governing federal question jurisdiction and the Court's method for dealing with declaratory judgment cases. Part II explores the history and purpose of the Declaratory Judgment Act and its relationship to federal question jurisdiction. This study demonstrates that the Supreme Court's assumptions about the jurisdictional import of the Declaratory Judgment Act find no support in the legislative history. Further, it shows that the Court's …

Terrorism, Law, And Our Constitutional Order, Christopher L. Blakesley

Scholarly Works

We have all suffered moments of vicarious terror over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. There, some institution, government, or group used innocent children, women, and men as fodder for their “war.” Some have claimed that the pusillanimous carnage was in retaliation for the slaughter of equivalent innocents aboard the Iranian Air Bus, similarly destroyed by American forces during the summer of 1988. Others suggested that it was committed by those interested in thwarting prospects of peace in the Middle East.

Combatting …

The Changing Process Of International Law And The Role Of The World Court, J. Patrick Kelly

Michigan Journal of International Law

Two approaches have emerged in recent American literature as to the appropriate United States attitude toward the World Court: (1) the re-acceptance of compulsory jurisdiction with various reservations to preserve vital American interests; and (2) the preservation of the status quo premised on a perception that the World Court is biased or misguided, while promoting the United States government's perspective on international law. This article argues that neither approach comes to terms with the wide disagreements about content and process in the international community. Both fail to promote the goals of an enhanced World Court or a better international legal …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MCCARRAN-WALTER ACT PROVISIONS ALLOWING FOR THE DEPORTATION OF ALIENS WHO ADVOCATE WORLD COMMUNISM VIOLATE THE FIRST AMENDMENT

American-Arab Anti-Discrimination Committee v. Meese 1989 U.S. Dist. LEXIS 1327 (C.D. Cal. Jan. 26, 1989)

PHILIPPINE ACTION AGAINST FORMER PRESIDENT MARCOS NOT BARRED BY ACT OF STATE DOCTRINE AND INJUNCTION ALLOWED TO FREEZE ASSETS WORLDWIDE

Republic of the Philippines v. Marcos 862 F.2d 1355 (9th Cir. 1988) (en banc).

THE FOREIGN SOVEREIGN IMMUNITES ACT OF 1976 PROVIDES THE SOLE BASIS FOR OBTAINING JURSIDICTION OVER A FOREIGN STATE

Argentine Republic v. Amerada Hess Shipping Corp. 109 S. Ct. 683(1989).

ASLYUM APPLICANT WHO FAILS TO …

Book Review, Michael C. Doland

Vanderbilt Journal of Transnational Law

The book is divided into two parts. The first part addresses those subjects that the Foreign Sovereign Immunities Act covers in detail, including the definition of foreign states and foreign government-owned corporations, judicial competence, jurisdiction, immunity, service of process, venue, and execution of judgments. The second part addresses those subjects that the Act covers in a cursory fashion, including burden of proof, rights of discovery, available remedies, and jury trials. In addition, the book treats those topics that received virtually no discussion under the Foreign Sovereign Immunities Act but that are essential to its understanding and enforcement, including the act …

Toward An Auction Market For Corporate Control And The Demise Of The Business Judgment Rule, Mark J. Loewenstein

Publications

No abstract provided.

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Publications

No abstract provided.

The Headwaters Of The Public Trust: Some Thoughts On The Source And Scope Of The Traditional Doctrine, Charles F. Wilkinson

Publications

No abstract provided.