Jurisdiction Commons^™

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

Boundary Dispute: The Presumption Against Extraterritoriality As Judicial Nondelegation, Luke Bell

BYU Law Review

No abstract provided.

The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule

Notre Dame Law Review

This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually …

The Unsung Virtues Of Global Forum Shopping, Pamela K. Bookman

Notre Dame Law Review

Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform.

This Article challenges common perceptions about global forum shopping that have supported …

Preclusion And Criminal Judgment, Lee Kovarsky

Notre Dame Law Review

The defining question in modern habeas corpus law involves the finality

of a state conviction: What preclusive effect does (and should) a criminal

judgment have? Res judicata and collateral estoppel —the famous preclusion

rules for civil judgments—accommodate basic legal interests in fairness,

certitude, and sovereignty. Legal institutions carefully calibrate the preclusive

effect of civil judgments because judicial resources are scarce, because

the reliability and legitimacy of prior process can vary, and because courts

wield the authority of a repeat-playing sovereign that will find its own civil

judgments attacked in foreign litigation. In stark contrast to the legal sophistication

lavished on …

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most …

The Stream Of Violence: A New Approach To Domestic Violence Personal Jurisdiction, Cody Jacobs

Faculty Scholarship

There is a split among state courts about whether personal jurisdiction over an alleged domestic violence perpetrator is required in order to obtain a civil protection order preventing the defendant from contacting the victim. Some courts have held that such orders interfere with the defendant’s liberty interests, and therefore the Due Process Clause requires personal jurisdiction for the issuance of such orders. Other courts have held that personal jurisdiction is not required because such protection orders are analogous to custody and divorce orders, which, under the “status exception,” courts have historically entered without establishing personal jurisdiction over the other party. …

Fading Extraterritoriality And Isolationism? Developments In The United States, Austen L. Parrish

Indiana Journal of Global Legal Studies

Having the opportunity to deliver the twelfth Snyder Lecture is a privilege in part because of the distinguished scholars who have given the lecture in the past. It is also a privilege because of Earl Snyder himself. Earl was visionary in supporting these cross-Atlantic intellectual exchanges and ahead of his time in appreciating the value of studying transnationalism in its many forms. Today, in that tradition, my aim is to give you a sense of how the procedural rules of international civil litigation are developing and changing in the United States, and how those developments in turn affect more traditional …

Conference Of Soviet And American Jurists On The Law Of The Sea And The Protection Of The Marine Environment, Milton Katz, Richard R. Baxter, O. V. Bogdanov, William E. Butler, Thomas M. Franck, Richard Frank, P. P. Gureev, John L. Hargrove, L. A. Ivanaschenko, Y. Kasmin, V. A. Kiselev, B. M. Klimenko, H. G. Knight, O. S. Kolbasov, A. L. Kolodkin, V. M. Koretsky, F. N. Kovalev, V. N. Kudrjavtsev, B. A. Kuvshinnikov, M. I. Lazarev, A. L. Makovsky, Charles W. Maynes, P. A. Moiseev, John N. Moore, A. P. Movchan, T. M. Starzhina, Robert E. Stein, Grigory I. Tunkin, E. T. Usenko, A. F. Vysotsky, A. K. Zhudro

Georgia Journal of International & Comparative Law

Included in the papers for the Conference of Soviet and American Jurists on the Law of the Sea and the Protection of the Marine Environment:

Introduction by Milton Katz and Richard R. Baxter, p. 1

Freedom of Scientific Research in the World Ocean by A.F. Vysotsky, p. 7

The International Law of Scientific Research in the Oceans by Richard R. Baxter, p. 27

Responsibility and Liability for Harm to the Marine Environment by Robert E. Stein, p. 41

Liability for Marine Environment Pollution Damage in Contemporary International Sea Law by A. L. Makovsky, p. 59

Protection of the Marine Environment …

Clarifying Uncertainty: Why We Need A Small Claims Copyright Court, John Zuercher

Marquette Intellectual Property Law Review

This article is concerned with the question of whether copyright law in the United States is currently equipped to achieve its original goal, set within the U.S. Constitution, to promote innovation and progress. This article suggests that copyright law is not equipped to achieve this goal because a paradox inherent in copyright law is hindering copyright litigation and causing uncertainty. The paradox is found in 17 U.S.C. § 106, which protects transformative works that are derivative, and 17 U.S.C. § 107, which protects transformative works as fair use. Ideally, the federal courts would solve this dilemma by interpreting the appropriate …

Pennoyer Was Right, Stephen E. Sachs

Faculty Scholarship

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law -- that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if …

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Faculty Scholarship

No abstract provided.

Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

The Business Of Personal Jurisdiction, Cassandra Burke Robertson, Charles W. (Rocky) Rhodes

Faculty Publications

This contribution to a symposium on business and the Roberts Court examines the recent significant reshaping of the contours of personal jurisdiction. Although the changes limit the scope of jurisdiction in ways that may favor defendants overall, the Court does not appear directly motivated by a desire to favor business—and, in fact, the Court erected significant obstacles to business interests in some contexts. Instead, the results in the cases may be better explained by the Court’s commitment to a formalist approach with respect for territorial boundaries and by a skepticism of transnational litigation not clearly related to a U.S. forum. …

Native Youth & Juvenile Injustice In South Dakota, Addie C. Rolnick

Scholarly Works

In this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can …

Mind The Gap: Issues With And Solutions To Oklahoma’S Appellate Jurisdiction As Exposed By Lockett V. Evans, Jonathan Bryant

Oklahoma Law Review

No abstract provided.

The Jurisdictional Boundary Between The Oklahoma Supreme Court And The Court Of Criminal Appeals: Blurred Lines, Greg Eddington

Oklahoma Law Review

No abstract provided.

Closing Time: Removing The State Of Oklahoma From Alcohol Regulation In Indian Country, Ryan Wilson

Oklahoma Law Review

No abstract provided.