Jurisdiction Commons^™

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarship@WashULaw

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …

Change We Can Believe In: The Seventh Circuit's Exposure Of Inadequate Environmental Review In Protect Our Parks V. Buttigieg, P. Nicholas Greco

Villanova Environmental Law Journal

No abstract provided.

On The Fence About Immigration And Overpopulation: "Environmentalists" Challenge Dhs Policies On Nepa Basis In Whitewater Draw Natural Resource Conservation District V. Mayorkas, Maya J. Williams

Villanova Environmental Law Journal

No abstract provided.

Experiments In Legal Hybridity: From Indian Tort Law To Tribal Tort Law, Noah T. Allaire

Tribal Law Journal

Tort law is a broad set of rules designed to compensate people who have suffered injuries and harm by imposing penalties on those who caused the resulting injuries and harm. Indian tort law is the limited set of rules that the United States imposed upon tribal nations over a century ago. Today, tribal courts have the important opportunity and responsibility to articulate tribal tort law. Tribal legislatures, in turn, can codify tribal tort rules to guide future judicial decisionmaking. Through this process, tribal tort law will gradually supplant Indian tort law. Articulating tribal tort law necessarily involves conducting experiments in …

The Role Of United States V. Cooley And Mcgirt V. Oklahoma In Determining Criminal Jurisdiction In Indian Country, Prof. Dustin Jansen

Tribal Law Journal

Understanding jurisdiction is paramount to deciding whether federal, state, or tribal courts can exercise jurisdiction for crimes committed in Indian country. The evolution of federal Indian law has created a legal landscape that is far from consistent. For the Indian law practitioner, it is important to stay abreast of the latest case law available to understand where proper jurisdiction lies. The latest cases of McGirt v. Oklahoma and United States v. Cooley are the newest case law available that demonstrate the Supreme Court’s reasoning and analysis in determining proper jurisdiction.

Oklahoma V. Castro-Huerta, Jurisdictional Overlap, Competitive Sovereign Erosion, And The Fundamental Freedom Of Sovereign Nations, Michael D.O. Rusco

Marquette Law Review

In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.

The Advisory Jurisdiction Of The Constitutional Tribunal Under Article 100 Of The Constitution, Don Jia Hao Ho

Singapore Law Journal (Lexicon)

Singapore has a Constitutional Tribunal as provided for under Article 100 of the Constitution. The Tribunal is vested with advisory jurisdiction which ordinary courts do not have. This article explores the constitutional basis for the Tribunal’s existence, jurisdictional issues surrounding the Tribunal, as well as the legal effect of the Tribunal’s opinion. Moreover, this article evaluates the continued relevance of the Tribunal. In doing so, a comparative approach is adopted where appropriate.

Stephen’S Prudent Person And The Standard Of Proof In Indian Evidence Act Jurisdictions, Siyuan Chen

Singapore Law Journal (Lexicon)

Sir James Fitzjames Stephen’s Indian Evidence Act of 1872 remains on the statute books of many Commonwealth jurisdictions. The contents of the statute have also remained largely intact. Unsurprisingly, then, there has been a growing chasm between what the statute provides for and how the common law rules on evidence have developed. However, the statute’s treatment of the concept of standard of proof has arguably been more sophisticated than what the courts have given credit for. In this article, it is argued that a return to the statute’s original conception of standard of proof will go some way in alleviating …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Helm's School of Government Conference

Although only four departments at the United States’ founding, the American bureaucracy has expanded to address nearly every issue of public life. While these agencies are ostensibly under congressional oversight through monetary allowance and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founders’ design of legislative power vested solely in a bicameral legislature.

The Supreme Court holds an indispensable role in mitigating the overreach of bureaucratic agencies. However, despite their obligation to protect the rights of the American people, the courts’ inability to hold bureaucrats accountable has diluted …

A Muddy Mess: The Supreme Court’S Jurisprudence On Jurisdiction For Arbitration Matters, Kristen M. Blankley

University of Miami Law Review

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. …

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 …

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz

Law Faculty Publications

One of the most momentous actions taken by the United States Supreme Court in the last term was not deciding a case but granting review at the end of the term in Moore v. Harper, the North Carolina congressional redistricting case. This is the case in which the Supreme Court appears likely to adopt some version of the Independent State Legislature Doctrine (Doctrine). In this essay, I will describe the actual case and the Doctrine. But I will also be offering an alternative to the Doctrine, one that I believe achieves some of the goals that the Justices who …

The Exigency And How To Improve And Implement International Humanitarian Legislations More Advantageously In Times Of Both Cyber-Warfare And Cyberspace, Shawn J. Lalman

Doctoral Dissertations and Master's Theses

This study provides a synopsis of the following topics: the prospective limiters levied on cyber-warfare by present–day international legislation; significant complexities and contentions brought up in the rendering & utilization of International Humanitarian Legislation against cyber-warfare; feasible repercussions of cyber-warfare on humanitarian causes. It is also to be contended and outlined in this research study that non–state actors can be held accountable for breaches of international humanitarian legislation committed using cyber–ordnance if sufficient resources and skill are made available. It details the factors that prosecutors and investigators must take into account when organizing investigations into major breaches of humanitarian legislation …

Tribal Sovereignty And Native American Women’S Rights In The Wake Of Castro-Huerta, Erin Geraldine Demarco

Senior Theses and Projects

This thesis will primarily examine the sexual assault crisis Native American women face and the jurisdictional issues that influence whether and how tribes prosecute and punish perpetrators. Federal Indian policy and various Supreme Court cases have increasingly undermined tribal sovereignty over the past few centuries, resulting in tribal governments lacking the ability to respond to sexual violence against their members. Native women who experience sexual violence often find themselves entangled in a complex web of jurisdictional issues, resulting in a lack of clarity about which government body has authority. As a result, their cases are frequently left unprosecuted, denying them …

Brief Of Amici Curiae Law Professors & Indian Law Experts In Support Of Petition For A Writ Of Certiorari, Smith V. United States, Barbara L. Creel, Verónica Gonzales-Zamora, Marc-Tizoc Gonzaléz

Faculty Scholarship

The decision reached by the United States Court of Appeals for the Ninth Circuit, permitting the application of state criminal law to punish a tribal member whose alleged criminal conduct occurred on an Indian reservation and caused no harm to another person—solely based on the Assimilative Crimes Act (ACA), 18 U.S.C. § 13 is contrary to numerous treaties, acts of Congress, and foundational principles
of tribal sovereignty as construed and upheld by this Court’s federal Indian law jurisprudence. Allowing the Ninth Circuit decision to stand renders express
congressional authorizations and limitations on federal and state criminal jurisdiction over Indians in …

Rationalizing Relatedness: Understanding Personal Jurisdiction's Relatedness Prong In The Wake Of Bristol-Myers Squibb And Ford Motor Co., Anthony Petrosino

Fordham Law Review

Ford Motor Co. v. Montana Eighth Judicial District Court marked a watershed in the U.S. Supreme Court’s personal jurisdiction jurisprudence. There, the Court came to a reasonable conclusion: Ford, a multinational conglomerate carrying on extensive business throughout the United States, was subject to personal jurisdiction in states where it maintained substantial contacts that were related to the injuries that prompted the suits. This was so, even though the business it conducted in those states was not the direct cause of the suit. While justifying that conclusion, however, the Court drastically altered the personal jurisdiction inquiry’s relatedness prong, which concerns whether …

Fugitive Pull: Applying The Fugitive Disentitlement Doctrine To Foreign Defendants, Zachary Z. Schroeder

Washington Law Review

Defendants force courts to decide whether to use judicial time and resources to hear a case when they either flee or refuse to submit to jurisdiction. Judges in the United States possess an exceptional discretionary power to deny access to the courts in these circumstances through the fugitive disentitlement doctrine. The fugitive disentitlement doctrine developed as federal common law and permits courts to exercise discretion in declining to hear appeals or motions from defendants classified as fugitives from justice.

Historically, the fugitive disentitlement doctrine was intended to prevent courts from wasting resources adjudicating cases when a defendant has fled and …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

Canadian Maritime Law Jurisdiction Revisited: Quo Vadis?, Aldo Chircop

Dalhousie Law Journal

Maritime jurisdiction in Canada has to contend with the division of powers between the federal and provincial levels. At times, this fact has challenged Canadian courts in explaining what should be the interface between federal and provincial law in dual aspect cases and in determining the applicable law or finding complementary applications of federal and provincial law. This essay reflects on the evolution of maritime law jurisdiction in Canada since the establishment of the Federal Court of Canada in 1971. It discusses the imperative of stability and reality of change in maritime law jurisdiction since then with a focus on …