How Congress Should Fix Personal Jurisdiction, 2014 Duke Law School
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
Faculty Scholarship
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …
Multiple Attempts At Class Certification, 2014 University of Pennsylvania Carey Law School
Multiple Attempts At Class Certification, Tobias Barrington Wolff
All Faculty Scholarship
The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.
This essay was solicited as a reply to a recent …
Limits Of Procedural Choice Of Law, 2014 University of Missouri School of Law
Limits Of Procedural Choice Of Law, S. I. Strong
Faculty Publications
Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.
Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …
Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, 2014 Georgetown University Law Center
Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.
Even when the presumption against …
"To Kill A Cleric?: The Al-Awlaki Case And The Chaplaincy Exception Under The Laws Of War", 2013 University of California - Los Angeles
"To Kill A Cleric?: The Al-Awlaki Case And The Chaplaincy Exception Under The Laws Of War", K Benson
K Benson
Anwar al-Awlaki was the first American citizen to be targeted for extrajudicial assassination by the Obama administration. While scholarly attention has focused on legality of his killing under domestic law, his status as a chaplain under International Humanitarian Law (IHL) has gone unexamined. The possibility that Anwar al-Awlaki may have been a protected person as a chaplain has profound ramifications for the legality of his killing and for the conduct of the war on terror more generally. As the definition of a "Chaplain" under IHL is under-developed at best and vague at worst, ideologues such as Mr. al-Awlaki operate in …
Information Society Perspectives On Choice Of Law And Jurisdiction – Party Autonomy In Transition, 2013 Lund University, Faculty of Law
Information Society Perspectives On Choice Of Law And Jurisdiction – Party Autonomy In Transition, Ulf Maunsbach
Ulf Maunsbach
No abstract provided.
The Proposed Eu Consumer Product Safety Regulation And Its Potential Conflict With Food Legislation, 2013 Asociación Iberoamericana para el Dereho Alimentario
The Proposed Eu Consumer Product Safety Regulation And Its Potential Conflict With Food Legislation, Luis González Vaqué
Luis González Vaqué
In mid-February of 2013 the European Commission proposed a new package of legislative and non-legislativemeasures to improve consumer product safety and to strengthenmarket surveillance of products in the EU. These measures included the following: – Communication from the Commission on more product safety andbettermarket surveillance inthe Single Market for products [COM(2013) 74 final2]; – Proposal for a Regulation of the European Parliament...
Emergent Public Discourse And The Constitutional Debate In Tunisia: A Critical Narrative Analysis, 2013 Northern Michigan University
Emergent Public Discourse And The Constitutional Debate In Tunisia: A Critical Narrative Analysis, Nathaniel Greenberg
Nathaniel Greenberg
The appointment of the Minister of Industry, the so-called “technocrat” Mehdi Jomaa, to form a caretaker government in Tunisia on the eve of the revolution’s third anniversary, threw into stark relief the country’s complex struggle for democracy following the January 14 revolution. The announcement came in the wake of the Islamist party Ennahdha’s sudden renunciation of the Prime Minister’s office in September, ostensibly a sign of cooperation in the face of mounting criticism surrounding the government’s failure to investigate the assassinations of two political opposition figures. A number of Western media outlets, including the New York Times, quickly absorbed the …
Global Patents: Limits Of Transnational Enforcement, 2013 University of Nevada, Las Vegas -- William S. Boyd School of Law
Global Patents: Limits Of Transnational Enforcement, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the University of Macerata on November 6, 2013. The presentation discussed the increase in transnational patent litigation and what governments must do to protect patent owners in a globalized economy.
Jurisdiction And The Enforcement Of Foreign Judgments, 2013 Roger Williams University School of Law
Jurisdiction And The Enforcement Of Foreign Judgments, Tanya Monestier
Law Faculty Scholarship
No abstract provided.
Il Contratto Alieno Del Diritto Comune Europeo Della Vendita (Cesl), 2013 Università degli Studi di Siena
Il Contratto Alieno Del Diritto Comune Europeo Della Vendita (Cesl), Pietro Sirena
Pietro Sirena
No abstract provided.
¿Cómo Se Constituyen Las Denominadas Servidumbres Legales? Apuntes En Torno A Una Pregunta Nada Obvia, 2013 Universidad Nacional Mayor de San Marcos
¿Cómo Se Constituyen Las Denominadas Servidumbres Legales? Apuntes En Torno A Una Pregunta Nada Obvia, Fort Ninamancco Córdova
Fort Ninamancco Cordova
No abstract provided.
Unlocking The Mysteriousness Of Complementarity: In Search Of A Forum Conveniens For Trial Of The Leaders Of The Lord's Resistance Army, 2013 University of Georgia School of Law
Unlocking The Mysteriousness Of Complementarity: In Search Of A Forum Conveniens For Trial Of The Leaders Of The Lord's Resistance Army, Alhagi Marong
Georgia Journal of International & Comparative Law
No abstract provided.
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, 2013 Boston College Law School
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Robert Bloom
After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …
Some Thoughts On Sanford Levinson’S “Divided Loyalties: The Problem Of 'Dual Sovereignty' And Constitutional Faith”, 2013 Touro University Jacob D. Fuchsberg Law Center
Some Thoughts On Sanford Levinson’S “Divided Loyalties: The Problem Of 'Dual Sovereignty' And Constitutional Faith”, David Novak
Touro Law Review
Analyzes the two divided loyalties that Levinson faces in "Divided Loyalties: The Problem of 'Dual Sovereignty' and Constitutional Faith."
Israel's Constitutional Tragedy, 2013 Touro University Jacob D. Fuchsberg Law Center
Israel's Constitutional Tragedy, Menachem Lorberbaum
Touro Law Review
No abstract provided.
Dual Sovereignty In Traditional Judaism And Liberal Democracy, 2013 Touro University Jacob D. Fuchsberg Law Center
Dual Sovereignty In Traditional Judaism And Liberal Democracy, William Galston
Touro Law Review
No abstract provided.
Divided Loyalties: The Problem Of “Dual Sovereignty” And Constitutional Faith, 2013 Touro University Jacob D. Fuchsberg Law Center
Divided Loyalties: The Problem Of “Dual Sovereignty” And Constitutional Faith, Sanford Levinson
Touro Law Review
Sanford Levinson provides the inaugural lecture of the new Jewish Law Institute at Touro Law School. He focuses on some of the ways that he finds himself constantly thinking of what might be termed "meta-issues" that arise in his joint study of, and intellectual confrontation with, Jewish law and American constitutional law.
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, 2013 Loyola University Chicago
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
David Ingram
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
When Is Minority Not Minority: Ncaa Ignores Two Centuries Of Anglo-American Contract Law Respecting Legal Status, 2013 Charlotte School of Law
When Is Minority Not Minority: Ncaa Ignores Two Centuries Of Anglo-American Contract Law Respecting Legal Status, Matthew M. Heekin, Bruce W. Burton
Matthew M. Heekin
No abstract provided.