Jurisdiction Commons^™

Dissecting Hobby Lobby'S Corporate Person: A Procedural Proposal For Aligning Corporate Rights And Responsibilities, Andrew J. Fleming

Brooklyn Law Review

Over the years, the U.S. Supreme Court’s corporate personhood decisions have allowed for the corporation to become increasingly more “person-like” by recognizing corporate constitutional rights that were previously reserved for flesh-and-blood human beings. Yet in cases where the rights of corporations are evaluated, the Court’s analysis flows from an axiomatic conceptualization of the corporation as a static, theoretical being, as if plucked straight from a business organizations law school textbook. The result is a gulf between corporate rights as “persons” and corporate legal responsibilities. Nowhere is that gulf more evident than in the Court’s personal jurisdiction jurisprudence. In particular, this …

The Necessary Narrowing Of General Personal Jurisdiction, William Grayson Lambert

Marquette Law Review

General personal jurisdiction allows a court to issue a binding judgment against a defendant in any case, even if the facts giving rise to the case are unrelated to that forum. In the six decades after International Shoe v. Washington, courts held that general jurisdiction existed whenever a defendant had substantial continuous and systemic contacts with the forum. This rule was narrowed significantly in 2011, however, when the Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown held that general jurisdiction was properly exercised only when a defendant had sufficient contacts to be “at home” in the forum.

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

Extraterritorial Application Of The Alien Tort Statute After Kiobel, Ranon Altman

University of Miami Business Law Review

This article explores when corporations can be held liable under the Alien Tort Statute for human rights abuses that are committed outside of the United States. The Alien Tort Statute grants the United States district courts jurisdiction for torts committed against foreigners in violation of the law of nations. While the Alien Tort Statute concerns international law, it does not indicate whether the district courts have jurisdiction over disputes that involve conduct outside of the United States.

In this article, I focus my analysis on the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. That case …

A Call For Clarity Resulting From Daimler Ag V. Bauman: Jurisdictional Veil Piercing In The Context Of Parent And Subsidiary Corporations And The Irrelevance Of Fraud Or Injustice, Hays C. Doan

University of Arkansas at Little Rock Law Review

No abstract provided.

Cross-Border Evidence Gathering In Transnational Crime Cases: Is The Microsoft Ireland Case The ‘Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel an individual on its territory to obtain and produce material which the individual owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie

Articles, Book Chapters, & Popular Press

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …

Medical Certificates Of Death: First Principles And Established Practices Provide Answers To New Questions, Jocelyn Downie, Kacie Oliver

Articles, Book Chapters, & Popular Press

Voluntary euthanasia became legal in Quebec in December 2015,1 although the legislation is currently the subject of litigation. In addition, physician-assisted death will become legal across Canada in February 2016, barring an extension on the deadline being given by the Supreme Court of Canada. There are many questions about how physician-assisted death should be regulated. One as-yet-unanswered question is “Should physician-assisted death be recorded anywhere on the medical certificate of death?” If so, a second question follows: “How should it be recorded — as manner and/or cause?” and if the latter, “Which category of cause: immediate, antecedent or underlying?”

To …

Ip Litigation In U.S. District Courts: 1994-2014, Matthew Sag

Faculty Articles

This Article undertakes a broad-based empirical review of intellectual property ("IP") litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades.

This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt …

Brief Of Amici Curiae 56 Professors Of Law And Economics In Support Of Petition Of Writ Of Certiorari, John R. Allison, Margo Bagley, James Bessen, Jeremy Bock, Daniel H. Brean, Michael A. Carrier, Michael W. Carroll, Bernard Chao, Tun-Jen Chiang, Colleen V. Chien, Andrew Chin, Robert Cook-Deegan, Md, Rochelle Dreyfuss, Dr. Dieter Ernst, Samuel F. Ernst, Robin C. Feldman, Lee Fleming, Brian Frye, William Gallagher, Shubha Ghosh, Eric Goldman, Bronwyn H. Hall, Yaniv Heled, Christian Helmers, Joachim Henkel, Susan Helper, Tim Holbrook, Herbert Hovenkamp, William Hubbard, Dr. Xavier Jaravel, Dennis S. Karjala, Peter Lee, Mark A. Lemley, David K. Levine, David S. Levine, Doug Lichtman, Yvette Joy Liebesman, Orly Lobel, Brian Love, Phil Malone, Michael J. Meurer, Dr. Shawn Miller, Matthew Mitchell, Susan Barbieri Montgomery, Sean Pager, Arti K. Rai, Jacob H. Rooksby, Jorge R. Roig, Matthew Sag, Pamela Samuelson, Ana Santos Rutschman, Lea Bishop Shaver, Toshiko Takenaka, John L. Turner, Jennifer Urban, Eric Von Hippel

Faculty Scholarship

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant …

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see …

A 21st Century Approach To Personal Jurisdiction, Robert E. Pfeffer

The University of New Hampshire Law Review

[Excerpt] "Personal jurisdiction doctrine plays a major role in many civil disputes in the United States. When the defendant resides in, is incorporated or headquartered in (in the case of a corporation or other business), or is otherwise found in the particular state where suit is brought, personal jurisdiction generally is found to exist and is unproblematic. Major personal jurisdiction issues usually arise when a plaintiff sues the defendant in a state other than the one in which the defendant is located.

In many cases involving parties located in different states, where a suit takes place is as extensively litigated …

External Forces, Internal Dynamics: Foreign Legal Actors And Their Impact On Domestic Affairs (Book Review), Jayanth K. Krishnan, Vitor M. Dias, Martin Hevia

Articles by Maurer Faculty

This Review examines the influence of foreign legal actors on jurisdictions that are not their own. Rachel Stern, a scholar of China, reflects on this point in her groundbreaking book published in 2013. In her penultimate chapter, Stern discusses how such foreign legal actors wield influence in China because of their presence on the ground. Building off of Stern's research, this Review proceeds to ask whether foreign legal actors can influence a domestic environment when that environment prohibits them from permanently working there. The analysis below will suggest so, arguing that the forces of globalization can enable foreign legal …

Rethinking The State Sovereignty Interest In Personal Jurisdiction, Jeffrey M. Schmitt

School of Law Faculty Publications

The Supreme Court has never articulated a coherent theoretical justification for the law of personal jurisdiction. While some opinions state that the law is based on state sovereignty, others hold that it is instead derived exclusively from the Due Process Clause’s concern for fairness. None of the opinions, however, clearly ties either of these theories to the blackletter law of personal jurisdiction. This confusion over the purpose of the doctrine has helped to create divisions both within the Court and among the Circuits on a number of important jurisdictional issues.

This Article argues that the law of personal jurisdiction must …

Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr.

Journal Articles

Ultimately, Somin’s single-minded dedication to a federal constitutional ban on economic development taking prevents the book from offering a full and fair consideration of alternative responses to eminent domain abuse. His survey of the various state legislative reforms enacted as a result of homeowner backlash to Kelo quite rightly points out the shortcomings of populist challenges to sophisticated vested interests. But his blatant aversion to engage with the substantial problems that public purpose land assembly faces without resort to eminent domain closes off any fair comparison of proposals that rival his own, particularly the position of fellow libertarian and ardent …

A Tribute To Judge Kaye, Nicholas W. Allard

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

The Energy Prosumer, Sharon B. Jacobs

Publications

Decentralization is becoming a dominant trend in many industries, and the electricity industry is no exception. Increasing numbers of energy consumers generate their own electricity and/or provide essential grid services such as storage, efficiency, and demand response. This Article offers a positive account of the emergence of these new energy actors, which it calls "energy prosumers. " It then frames several doctrinal and procedural puzzles that prosumers create, including jurisdictional puzzles, distributional concerns, and democratic challenges. Ultimately, it concludes that prosumers can be a positive disruptive force in the electricity industry if courts and regulators can manage these challenges effectively. …

Impermissive Counterclaims: Why Nonresident Plaintiffs Can Contest Personal Jurisdiction In Unrelated Countersuits, Jon D. Bressler

American University Law Review

No abstract provided.