Jurisdiction Commons^™

The Purpose Of The Preliminary Injunction, Samuel Bray

Journal Articles

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a "hold in place" order, blocking actions by the parties that would undermine the efficacy of the court's remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court's remedial options.

A Critical Juncture: The Convergence Of Natural Resource Management And Tribal Sovereignty, Anna Aleta Butterfield

Graduate Student Portfolios, Professional Papers, and Capstone Projects

This portfolio reflects the work I’ve done in my four years as a dual degree student, pursuing a Master of Science in Environmental Studies and a juris doctorate degree, and focuses on policies and laws surrounding natural resource management. It touches on how those policies relate to and expand or constrict the exercise of sovereignty by indigenous populations.

This piece first considers the effects of plastic on salmon populations and those indigenous groups that rely on salmon for subsistence and cultural purposes. The remaining three pieces focus on various aspects of the Confederated Salish and Kootenai Tribes - Montana Water …

Precedential Trauma: Integrating Trauma-Informed Judging In Federal Courts Of Appeals Through Opinion Writing, Alison Brochu

Roger Williams University Law Review

No abstract provided.

The Inadequacy Of Perpetuating Vestiges Of Segregation In K-12 Curriculum: The Justiciability Of Reviewing Duties To Adequacy In Florida's Education Clause, Soumya Sreerama

American University Journal of Gender, Social Policy & the Law

Although the Supreme Court declared segregation the most abusive affront to education and ruled to eliminate vestiges of segregation “root and branch,” those same roots have grown unchecked to remain prominent today. One of the undercurrents of state-sponsored discrimination that has escaped desegregation remedies is the skewed, whitewashed curriculum that permeated K-12 classrooms in Jim Crow America. More troubling, is that those vestiges of an inadequately biased curriculum are still slithering in students’ courses today. Although student movements and education reformists have attempted to counter skewed curricula by supplementing them with separate ethnic studies courses, states like Florida recently passed …

Erie And Enforceability Of Forum Selection Clauses, Patrick Woolley

American University Law Review

Whether and to what extent state law governs the contractual validity of forum selection clauses in federal court remains highly contested. This Article argues for a two-part answer.

State law should govern whenever a party seeks a § 1404(a) transfer of venue within the federal judicial system. The Court has insisted that the choice-of-law rules of the state to which the suit is transferred govern when transfer is required by a contractually valid clause. That insistence accords with the Erie policy of vertical uniformity between state and federal courts only if the law of the state in which the transferring …

Fixing Double Patenting, Mark A. Lemley, Lisa Ouellette

American University Law Review

The U.S. patent doctrine of "double patenting" allows an inventor to obtain many patents on obvious variants of the same invention as long as they file a "terminal disclaimer" agreeing that all of these patents will expire simultaneously. Two recent limitations on double patenting practice have led

to vigorous protest from the patent bar. First, the Federal Circuit held in In re Cellect that patents tied by double patenting must expire on the same day, even if one of the patents has received a patent term adjustment giving it a more-than-twenty-year term. Second, the USPTO proposed a rule (since withdrawn) …

Personal Jurisdiction’S Aberrant Theory Of Consent, Roger Michalski

American University Law Review

Consent has been a pillar of personal jurisdiction doctrine at least since Pennoyer. The Supreme Court recently strengthened this pillar by deeming a corporate registration statute to constitute consent. Consent to submit to a court’s adjudicatory power can now be unintentional, based on inaction, is irrevocable, does not have to be informed, is all-or-nothing, and is blind to power inequalities. Failing to say “no” at the right time in the right way means “yes.”

Such a theory of consent clashes with what consent means elsewhere. In other contexts, we are reminded that “no means no,” the “absence of no does …

Loper Bright And The Great Writ, Anthony G. Amsterdam, James S. Liebman

Faculty Scholarship

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied …

Younger And Older Abstention, Fred O. Smith Jr.

Michigan Law Review

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child …

After Courts: Democratizing Statutory Law, Ryan D. Doerfler, Samuel Moyn

Michigan Law Review

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, …

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

Articles

This essay provides a roadmap to the current landscape of neutrality and disclosure. It then suggests three possible reforms to the FAA that would provide better guidance to arbitrators, parties, and courts. Moreover, this essay argues that if the FAA cannot be sufficiently amended, states should take the lead. States can continue to more clearly outline disclosure requirements and enforce clearer standards than the current version of the FAA.

Doe V. Geller And Personal Jurisdiction Over Internet Activities, Elizabeth Kruse

Texas A&M Law Review

Personal jurisdiction is fundamental in American jurisprudence since it gives a court the power to bind parties with its ruling. Despite this subject’s mundane veneer, the concept is so complicated that it has inspired thousands of academic articles. A brief search on Westlaw under Law Reviews & Journals for the term “personal jurisdiction” yields nearly 10,000 results, while Lexis+ yields 14,662 for the same term. Even so, as the nature of human interaction has changed from in person, to in writing, to over the phone, and, most recently, to over the internet, the doctrine of personal jurisdiction has accommodated. Recent …

Across The Aggregation-Entity Divide: Personal Jurisdiction, Standing, And The Nature Of The Class Action, Charles Hill

University of Cincinnati Law Review

No abstract provided.

Challenging The Juridical Link: Standing, Class Actions, And Article Iii's Limitations, Sebastian W. Johnson

University of Cincinnati Law Review

No abstract provided.

Dissell V. Trans World Airlines: Constitutional Limitations On The Workers' Compensation Commission's Subject-Matter Jurisdiction, Patricia A. Nelson-Reade

Maine Law Review

To rule upon a workers' compensation claim, the Maine Workers' Compensation Commission must determine that it has both personal and subject-matter jurisdiction. Personal jurisdiction is determined by applying Maine's "long-arm" statute. Subject-matter jurisdiction derives from the Commission's status as an administrative agency authorized to administer the Maine Workers' Compensation Act (MWCA). Although subject-matter determination generally involves a choice-of-law issue, in a workers' compensation claim having extraterritorial aspects, the Commission is not free to apply the compensation acts of other states that have contacts with the claim. Rather, the Commission may determine only if it has authority under the MWCA to …

Rwu Law Alumni Newsletter December 2024, Roger Williams University School Of Law, Pbn Connect, Edward Fitzpatrick, Danna Lorch

RWU Law

No abstract provided.

The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility, Dr. Destaw A. Yigzaw

Brooklyn Journal of International Law

Under the Rome Statute, situations are referred to the International Criminal Court (“ICC” or “Court”) either by a state party or the Security Council. In recent years, however, referrals from both sources have become difficult to come by. Instead, there is an evolving practice of referrals by a coalition of third states parties (“group referrals”). Yet, a group referral as a trigger mechanism does not have an explicit textual basis under the Rome Statute (“Statute” or “ICC Statute”). There is no rationale for it either, since a referral by a single state party is all that is needed to trigger …

A Delicate Balance: The Japan-Us Status Of Forces Agreement Applying A Comparative Framework To Recommend Changes To Criminal Jurisdiction Provisions In The Japan-Us Status Of Forces Agreement To Better Protect The Interests Of Japan And The United States, Keara Schmeiser

Brooklyn Journal of International Law

The criminal jurisdiction provisions of the Japan-U.S. Status of Forces Agreement (“SOFA”), which governs the rights of US servicemembers deployed in Japan, must be amended. The recent Japanese criminal conviction of a U.S. naval officer focused U.S. lawmakers’ efforts on revising the Japan-U.S. SOFA. This led to a provision in the 2024 National Defense Authorization Act (“NDAA”), which requires the U.S. Secretary of Defense and Secretary of State to analyze the largest existing U.S. bilateral agreements and their treatment of U.S. servicemembers’ rights in foreign courts and, by the end of 2024, report their findings to congressional committees. This Note …

Not "Indian" Enough: Freedmen, Jurisdiction, And Equal Protection, Ted Shepherd

Pepperdine Law Review

Beginning in the 17th century, many American Indians owned enslaved African workers. They stopped only at the end of the Civil War, when several Tribal Nations signed treaties with the federal government requiring them to emancipate their enslaved workers. The treaties also required the Nations to enroll these “Freedmen” and their descendants as full Tribal members. The Nations complied for a time, but then withdrew membership from the descendants in the 1970s. In 2017, however, a federal court required the Cherokee Nation to honor its treaty and grant the descendants of Cherokee Freedmen full Tribal membership, which it did. Despite …

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.