Jurisdiction Commons^™

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Publications

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.

Pushing The Envelope: Salzberg V. Sciabacucchi And Delaware's Evolving View Of The Internal Affairs Doctrine, Mark J. Loewenstein

Publications

In January, 2020, the Delaware Supreme Court handed down its decision in Salzberg v. Sciabacucchi, upholding a provision in a certificate of incorporation that designated the federal courts as the exclusive jurisdiction for the litigation of claims under the federal Securities Act of 1933. The inclusion of these provisions in Delaware charters and bylaws – often referred to as “Federal Forum Provisions” or FFPs – raised important questions as to the reach of the internal affairs doctrine. This doctrine provides that the jurisdiction of incorporation regulates the internal affairs of its corporations: the relationship among and between the corporate …

Keeping Faith With Nomos, Steven L. Winter

Touro Law Review

No abstract provided.

Caveat Emptor: Real Property Law’S “Get Out Of Jail Free” Card V. The Property Condition Disclosure Act, Alessandra E. Albano

Touro Law Review

No abstract provided.

How To Deter Pedestrian Deaths: A Utilitarian Perspective On Careless Driving, John Clennan

Touro Law Review

No abstract provided.

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Regulating The Border, Eunice Lee

Maryland Law Review

No abstract provided.

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article …

Internet Jurisdiction: Using Content Delivery Networks To Ascertain Intention, Patrick Lin

LL.M. Essays & Theses

Specific jurisdiction in civil litigation centers on the rather general,yet immutable, concept of intention. Although the word “intention” does not surface prominently in the personal jurisdiction case law, it is clearly intrinsic to the concept of “purposeful availment”. On the Internet, however, intention is hard to ascertain: how does a court, for example, determine whether the defendant intended that its website, application, or advertisement within a mobile application should end up in the forum state? In answering such a question, courts have historically used one of two approaches to establish intent: (i) a targeting test or (ii) a degree of …

Fraudulent Joinder, Federalism, And The Twombly/Iqbal Problem, Charles W. Oldfield

Kentucky Law Journal

No abstract provided.

Where Victims Of Data Breach Stand: Why The Breach Of Personally Identifying Information Should Be Federally Codified As Sufficient Standing For Data Breach Causes Of Action, Gabriela Nastasi

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Lawful Permanent Residency: A Potential Solution For Temporary Protected Status Holders In The Eastern District Of New York, Cody M. Gecht

Touro Law Review

No abstract provided.

Can The International Criminal Court Succeed? An Analysis Of The Empirical Evidence Of Violence Prevention, Stuart Ford

Loyola of Los Angeles International and Comparative Law Review

Despite significant optimism about the future of the International Criminal Court (“ICC”) during its early years, recently there has been growing criticism of it by both scholars and governments. As a result, there appears to be more doubt about the ICC’s ability to succeed now than at any other point in its history. So, are the critics correct? Is the ICC failing? No. This Article argues that, not only can the ICC succeed, there is strong evidence that it is already succeeding. It analyzes several recent empirical articles that have convincingly demonstrated that the ICC prevents serious violations of international …

Experiments With Suppression: The Evolution Of Repressive Legality In Britain In The Revolutionary Period, Christopher M. Roberts

Loyola of Los Angeles International and Comparative Law Review

This article is concerned with the structure of repressive governance, and how it has evolved historically. It examines this theme through an exploration of the manner which repressive laws and institutions evolved in Britain over the course of the late eighteenth century. In particular, it reviews the various measures that British authorities utilized and relied upon in order to confront a growing wave of calls for social and political reforms. These included a policy of aggressive prosecutions of dissidents; the creation of new institutions such as the Home Office designed to enhance the powers of the central authorities; extralegal measures …

Identity Federalism In Europe And The United States, Vlad Perju

Vanderbilt Journal of Transnational Law

The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives, too, have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional …

Federal Forum Provisions And The Internal Affairs Doctrine, Dhruv Aggarwal, Albert H. Choi, Ofer Eldar

Faculty Scholarship

A key question at the intersection of state and federal law is whether corporations can use their charters or bylaws to restrict securities litigation to federal court. In December 2018, the Delaware Chancery Court answered this question in the negative in the landmark decision Sciabacucchi v. Salzberg. The court invalidated “federal forum provisions” (“FFPs”) that allow companies to select federal district courts as the exclusive venue for claims brought under the Securities Act of 1933 (“1933 Act”). The decision held that the internal affairs doctrine, which is the bedrock of U.S. corporate law, does not permit charter and bylaw provisions …

Reign Of Error: District Courts Misreading The Supreme Court Over Rooker–Feldman Analysis, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

Seventeen decisions in nine U.S. district courts from 2006 through 2019 have taken a demonstrably misgrounded starting point for Rooker–Feldman analysis. The cases have read language from a 2006 Supreme Court opinion, in which the Court quoted criteria stated by the lower court, as their guideline. But the Court summarily vacated the lower court’s judgment, and it had previously articulated, and has repeated, different criteria for federal courts to follow. The district-court decisions all appear to have reached correct results, but the mistake about criteria should be recognized and avoided as soon as possible before it creates potential mischief. And …

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

Scholarly Works

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah J. Wiseman

Georgia Law Review

Dividing authority between the federal government and the
states is central to the theory and practice of federalism.
Division is the defining feature of dual federalism, which
dominates the U.S. Supreme Court’s federalism
jurisprudence. Recent academic theories of federalism
emphasize overlap and interaction but still assume that
federal and state actors will work within separate institutions.
Each approach can be problematic, yet assumptions of
separation remain the bedrock of federalism. This Article
discusses a different form of federalism: coequal federalism.
Under coequal federalism, federal- and state-appointed
officials collaborate within a single agency that makes
decisions binding on the federal government …

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …