Jurisdiction Commons^™

Disregarding Severability, Kevin C. Walsh

Catholic University Law Review

The infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts's reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the …

Fifth Circuit And Mississippi Law: Asked And Answered (Or Not), Caroline B. Smith, Emily K. Lindsay, Jim Rosenblatt

MC Law Review

No abstract provided.

What's Appealing In Mississippi?, Virginia C. Carlton

MC Law Review

No abstract provided.

Federal Courts, Class Actions, And The Jurisdictional Void, Courtney T. Welch

Fordham Law Review

To invoke the jurisdiction of a federal court, a plaintiff must satisfy the requirements of Article III. Among other things, Article III requires a plaintiff to have and maintain personal stake throughout the lifespan of the litigation. Though a simple premise, this constitutional requirement has a complicated history. This is especially true as applied to class action lawsuits, where plaintiffs bring claims both on behalf of themselves and other harmed individuals.

The U.S. Supreme Court has applied flexible rules to some—but not all—of Article III’s requirements in class actions. The breadth of this flexibility, though, is uncertain. Accordingly, so too …

Auer Deference: He Who Writes The Law Must Not Adjudge Its Violation, William G. Kennedy

MC Law Review

This Comment explores Auer deference and its application to the Sentencing Guidelines, the Sentencing Commission, and its commentary. Auer deference, in its simplest form, requires courts to give controlling weight to an agency’s interpretation of its own regulations unless it is plainly erroneous or inconsistent with the regulation. Following the Court’s decision in Kisor—expressly limiting Auer’s application, the circuit courts have disagreed on the applicability of Auer to the Sentencing Commission’s commentary regarding career offender designation. This disagreement begs for an appearance before the Court of Last Resort, but until that day, the courts must rigidly apply Kisor to …

Frankenstein Sinatra: The Argument For A Federal Postmortem Right Of Publicity In The Ai-Era, Ian Samide

Brooklyn Journal of Corporate, Financial & Commercial Law

Artificial Intelligence has fundamentally revolutionized the way media is generated and presents new and unique threats to the right of publicity. By enabling users to create high-quality, realistic deep fakes of individuals’ voices, images, or likenesses, Artificial Intelligence has created novel risks to the right of publicity. Additionally, right of publicity is currently governed by state law. This system is proving to be flawed in the internet age, as content is rarely confined to a single jurisdiction, resulting in unpredictability and juridical disputes. This note argues that a federal right of publicity is necessary to regulate Artificial Intelligence effectively and …

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

Investigating The Relationship Between Noun Classes And Plant Folk Taxonomy In Chasu Language Of Kilimanjaro Region In Tanzania, Peter Rabson Mziray

Journal of Humanities and Social Sciences

The current study investigates the relationship between noun classes and plant folk taxonomy in Chasu (G 22). The study focuses on two objectives: the first objective is to describe the plant folk taxonomy in Chasu and the second objective is to determine the relationship between noun classes and plant folk taxonomy in Chasu. Data were collected from rural villages in Same and Mwanga districts by using free listing, field interviews (jungle-walk-and-identify), and written texts containing Chasu plant names. The findings reveal that Chasu folk taxonomy reflects different ethnobotanical categories; including a unique beginner which is mmea/mimea ‘plant(s)’, and three life …

Habeas Corpus And Void Judgments, David Kinnaird

Notre Dame Law Review

In a string of recent opinions, Justice Gorsuch and Justice Thomas have posited that postconviction relief upon a writ of habeas corpus was historically unavailable except where the judgment of conviction was issued by a court lacking jurisdiction. In light of this history, Justices Gorsuch and Thomas have argued for a reconsideration of the modern scope of the writ, which generally allows for relitigation of alleged constitutional error in the course of criminal trial.

This Article argues that Justices Gorsuch and Thomas have the history half right. They are correct to assert that a valid judgment of conviction was a …

Competition, Comity, And Confusion: Reconciling The Ftaia’S Import Exclusion With Its Direct Effects Provision, Elliot Lam

Fordham Law Review

The debate surrounding the Sherman Act’s extraterritorial scope represents a tension between two competing objectives: protecting the U.S. economy from foreign anticompetitive conduct on one hand and respecting the sovereign authority of other nation-states on the other. Applying U.S. law abroad risks undermining sovereign authority by regulating foreign economies, though such regulation appears necessary in some cases to protect U.S. consumers.

Congress’s attempt to square these objectives through enacting the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) failed to settle the matter. The statute left courts with two new questions: how to distinguish “import” from “nonimport” commerce, and how …

Defining “Cases” Or “Controversies”: A Fundamental Confusion In Article Iii Standing Doctrine And Its Consequences In Multi-Plaintiff Litigation, Dominic Signa

Fordham Law Review

The United States Supreme Court has addressed the absolute core requirements of standing under Article III of the U.S. Constitution on several occasions. However, the Court has not clearly articulated what purpose standing serves relative to Article III’s limitations on the exercise of judicial power to only “cases” or “controversies,” and this has led to major downstream effects in the realm of multi plaintiff litigation. Specifically, the Court has not explained whether standing is meant to ensure (1) that all potential plaintiffs demonstrate that they are properly parties to the same case or controversy before a federal court or (2) …

Critical Approaches To Jurisdiction: The Struggle For Control Of Indigenous Lands And Resources, Dayna Scott

Articles & Book Chapters

This chapter questions the starting assumptions in thinking through questions of “jurisdiction” in public law, specifically in relation to assertions of inherent Indigenous territorial governing authority. It reviews the common conceptual images of jurisdiction we employ in law schools and offers resources from critical interdisciplinary theory for new conceptions. In highlighting examples of the present exercise of Indigenous territorial jurisdiction, such as the Kunst'aa guu— Kunst'aayah Reconciliation Protocol and the Tsleil-Waututh Sacred Trust Assessment of the Trans Mountain Expansion (TMX) project, the chapter urges public law scholars to adopt an orientation of prefiguration in order to bring into being conceptualizations …

Chimeric Contacts And Consent: The Ill-Reasoned Expansion Of Corporate Jurisdictional Exposure, James P. George

William & Mary Business Law Review

Two recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case—Ford Motor Company v. Montana—reached a fair result but with strained reasoning that will support unfair results. The second case—Mallory v. Norfolk Southern Railroad Company—was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff’s limited territorial model.

Both decisions were the result of conceptual corners …

Chimeric Contacts And Consent: The Ill-Reasoned Expansion Of Corporate Jurisdictional Exposure, James Paul George

Faculty Scholarship

Two recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case-Ford Motor Company v. Montana-reached a fair result but with strained reasoning that will support unfair results. The second case-Mallory v. Norfolk Southern Railroad Company-was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff's limited territorial model. Both decisions were the result of conceptual corners the Supreme Court has created …

Living Property, Joseph William Singer

Seattle University Law Review

The Supreme Court has increasingly defined property rights that are per se exempt from regulation in the absence of compensation, most recently in Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023). The Court claims that it can identify property rights that are categorically protected from regulation by reference to history, tradition, and precedent. Yet this approach is oddly ahistorical; it is inconsistent with the fact that property law changed dramatically over U.S. history, as well as varying tremendously among the states. It is also inconsistent with the historical context of the Founding era. At that time, …

Table Of Contents

Seattle University Law Review

Table of Contents

The Roots Of Credit Inequality, Andrea Freeman

Seattle University Law Review

Debt oppression began before the United States became a country. Settlers enslaved Africans and Indigenous people, treating them as property that they could buy and sell for their economic and personal benefit. When enslavement became illegal, new economic systems and laws that included sharecropping, Black Codes, and Jim Crow kept Black people in servitude. Laws that prohibited enslaved people from owning property or selling goods to white people evolved into restrictions on Black people’s occupations and market participation, both formal and informal. When Black entrepreneurs overcame these obstacles and built wealth within Black business enclaves, white people enforced their racist …

“A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Seattle University Law Review

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Redefining Section 230 Immunity, Lucas Dini

Seattle University Law Review

Section 230 of the Communications Decency Act has provided broad immunity to online platforms for third-party content which was the foundation for the internet's growth. However, the rise in the use of artificial intelligence (AI) to produce algorithms to curate content to users of online services has blurred the line between being a passive host of third party content and active editorial control. This Note examines the legal, policy, and constitutional implications of applying Section 230 immunity to platforms that use AI to curate and promote third-party content. This analysis argues that algorithmic promotion of third-party content constitutes a platform's …

Overcrowding The System: Rethinking Juvenile Justice In Washington State, Mckenna White

Seattle University Law Review

The recent crisis at Green Hill School highlights the detrimental consequences of severe overcrowding in Washington State’s Juvenile Rehabilitation system—a problem exacerbated by the implementation of the JR to 25 legislation. This Note argues that the juvenile rehabilitation system, which is currently struggling to manage a wide age range of offenders, necessitates a fundamental rethinking of juvenile justice practices. By examining neurological research indicating continued brain development into the mid-twenties, along with the high prevalence of trauma among justice-involved youth, this Note proposes the creation of a dedicated third system of care within the Department of Children, Youth, and Families …