Jurisdiction Commons^™

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez

Brooklyn Journal of International Law

Social media is a pervasive and ever-present aspect of many peoples’ lives. Its use permeates nearly every aspect of our existence – there truly is an app for everything. Most notably, social media operates internationally both in scope and usage allowing for the creation of an astounding global society that shares cultures and perspectives in a way unprecedented in human history. Never before have societies been as interconnected as they are now. Unfortunately, such interconnectedness comes with the issue of globalizing enforcement of copyright laws. Infringement runs rampant online and forces creators to struggle against a seemingly faceless foe in …

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

The Roberts Court, State Courts, And State Constitutions: Judicial Role Shopping, Ariel L. Bendor, Joshua Segev

Journal of Law and Policy

In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One …

Uncovering The Legislative Histories Of The Early Mail Fraud Statutes: The Origin Of Federal Auxiliary Crimes Jurisdiction, Norman Abrams

Utah Law Review

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime, that is, a crime that does not protect direct federal interests against harm. Rather, it functions as an auxiliary to state crime enforcement. In the almost 150 years since Congress enacted the mail fraud statute, federal auxiliary crimes have proliferated and have become the most important part of federal criminal jurisdiction—so that, today, they largely duplicate state crimes. It is important to know how this form of federal criminal jurisdiction originated.

Mail fraud is a crime that scholars, judges, and lawyers have viewed as …

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Garland V. Gonzalez: Brief For Amici Curiae Law Professors In Support Of Respondents, Leah Litman

Appellate Briefs

Amici are a group of philosophically diverse law school professors who offer a unique perspective about federal courts’ equitable powers and principles of statutory interpretation. Together, amici share an interest in ensuring that federal law be construed in accordance with its text and longstanding background principles regarding review of executive action.<\p>

From our Nation’s Founding, federal courts have exercised broad equitable authority to issue injunctions prohibiting executive officials from acting beyond their lawfully conferred authority. This bedrock power to restrain ultra vires acts by the executive branch is a foundational tenet of the American legal system. This Court has long …

Article Iii And The Political Question Doctrine, Scott Dodson

Northwestern University Law Review

Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, Robin Effron, John F. Coyle

Faculty Scholarship

No abstract provided.

An Open Governor’S Seat, Open Constitutional Question, And The Need For An Answer, Samuel Steele Mclelland, James R. Baxter

Arkansas Law Notes

Another election cycle always means a renewal of fresh lawsuits and legal questions, and 2022 is no exception. the announcement of Sarah Huckabee Sanders’s run for Governor of Arkansas reignites an interesting aspect of Arkansas’s Constitution: must a candidate for Governor live in the State of Arkansas for seven consecutive years, immediately preceding taking office? A final ruling by the Arkansas Supreme Court will give clarity and stability going forward for the most important elected position in the state.

The Cost Of Doing Business? Corporate Registration As Valid Consent To General Personal Jurisdiction, Matthew D. Kaminer

Washington and Lee Law Review Online

Every state has a statute that requires out-of-state corporations to register with a designated official before doing business there, but courts disagree on what impact, if any, those statutes can or should have on personal jurisdiction doctrine. A minority of states interpret compliance with their registration statutes as the company’s consent to general personal jurisdiction, meaning it can be sued on any cause of action there, even those unrelated to the company’s conduct in that state. The United States Supreme Court upheld this “consent by registration” theory over 100 years ago, but since then has manifested a sea change in …

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

Judicial Authority On Penalty Clause, Alissar Farhat, Saed Yakan

Al Jinan الجنان

It is known that the parties of the contract include, in their contract, a penal clause hoping to urge good implementation and adhere to the specified deadlines without resorting to the judiciary. This clause led to many problems related to its nature. Questions were asked about its lawfulness and the conditions that must fulfill in order to be implemented, and the judiciary’s authority to interfere in the assessment of this clause, especially because this interference is considered an objection to the most important legal principles of the contract, knowing that this clause considers the contract “the law of the contractors”. …

Winning, Defined? Text-Mining Arbitration Decisions, Charlotte S. Alexander, Nicole G. Iannarone

Cardozo Law Review

Who wins in consumer arbitration? Historically, this question has been nearly impossible to answer, as most arbitration proceedings are a private black box, and arbitral forums release only limited summary statistics. One exception is the Financial Industry Regulatory Authority (FINRA), which arbitrates virtually all disputes between investors and stockbroker-dealers, and makes all of its nearly 60,000 written arbitration decisions publicly available in an online database. This Article is the first to use computational text analysis tools to study these decisions, and to construct a measure of the claimants’ win, loss, and settlement rates. It is the first installment in an …

Legalizing Undocumented Work, Jennifer J. Lee

Cardozo Law Review

No abstract provided.

Treaty Validity After Diplomatic Cutoff: The Case Of The Taiwan-Panama Free Trade Agreement, Chien-Huei Wu, Po-Hsiang Liao

Indiana Journal of Global Legal Studies

In view of the opposing positions of Taiwan and Panama, this paper intends to examine the legal status of the Taiwan-Panama FTA after the termination of diplomatic relations between these two countries. This paper argues that the severance of diplomatic relations does not affect the legal relations of Taiwan-related FTAs. This paper puts forward two arguments in support of the continuous legal validity of the Taiwan-Panama FTA from the perspectives of public international law and the law of the World Trade Organization (WTO). First, as the law of treaties provides, the severance of diplomatic relations shall not affect the treaty …

Debt Expansion As "Relief And Rescue" At The Time Of The Covid-19 Pandemic: Insights From The Legal Theory Of Finance, Iris Hse-Yu Chiu, Andreas Kokkinis, Andrea Miglionico

Indiana Journal of Global Legal Studies

In Section II, we discuss the relief and rescue policies in the US, UK, and EU and show how they have been advanced by legal elasticity in suspensions from normal private and regulatory law. Crucially, such legal elasticity is intended to facilitate an increased debt burden for corporations and households as a means of relief and rescue. We argue that this policy choice, which is startlingly similar in these developed jurisdictions, has been influenced by the contexts of financialization in these jurisdictions and the perception of temporary duration by policy makers. However, there is a need to critically interrogate the …