Jurisdiction Commons^™

Iowa’S 2010 Judicial Election: Appropriate Accountability Or Rampant Passion?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Although 89% of state judges (appellate and general-jurisdiction trial judges) face some type of election, judicial elections are rarely thought of even by academics interested in elections. Iowa’s 2010 election, in which three Justices were defeated, is one of the most significant judicial elections ever. The Justices lost their seats because they participated in a unanimous 2009 decision upholding gay marriage. That decision stirred intense opposition among “social conservatives”, in Iowa a substantial proportion of the population and actively led by more than 100 ministers.

That active opposition was one of eight elements that created a perfect storm against the …

Bowman Lives: The Extraterritorial Application Of U.S. Criminal Law After Morrison V. National Australia Bank, Zachary D. Clopton

Cornell Law Faculty Publications

No abstract provided.

Benefits Of Opt-In Federalism, The, Brendan Maher

Faculty Articles and Papers

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism. Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Muddying The Waters: United States V. Cundiff Adds Confusion And Complexity To The Ongoing Debate Over The Scope Of Federal Jurisdiction Under The Clean Water Act, P. Ryan Henry

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya J. Monestier

Journal Articles

The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign …

Rethinking Jurisdictional Discovery Under The Hague Evidence Convention, Kathleen B. Gilchrist

Vanderbilt Journal of Transnational Law

When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts--applying the balancing test formulated by the Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. District Court and favoring application of the Federal Rules--is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three holdings: …

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

New First Principles? Assessing The Internet's Challenges To Jurisdiction, Teresa Scassa, Robert J. Currie

Articles, Book Chapters, & Popular Press

The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate “space” and many refer to state jurisdiction over Internet activities as “extraterritorial.” This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on …

End-Of-Life Decision-Making In Canada: The Report By The Royal Society Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schuklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila Mclean, Ross Upshur, Daniel Marc Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters: Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada, Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death, Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada’s constitutional order, Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

Negotiating Federalism, Erin Ryan

Faculty Publications

Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that pervades political discourse and judicial doctrine, the Article demonstrates that the boundary between state and federal power is negotiated on scales large and small, and on an ongoing basis. It is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap.

The Article begins by situating its inquiry within the age-old …

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Creating Bright-Line Rules For Tribal Court Jurisdiction Over Non-Indians: The Case Of Trespass To Real Property, Grant Christensen

American Indian Law Review

The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties - tribal, state, and federal - are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed to federal courts. I offer this piece to propose a new and novel solution - that tribal courts, through a piecemeal process, be extended absolute civil jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest. This article takes one of the most …

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

Faculty Works

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow

Articles

Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.

Gender-Classified Imports: Equal Protection Violations In The Harmonized Tariff Schedule Of The United States, Jason Lewis

Cardozo Journal of Equal Rights & Social Justice

The note argues that gender-based classifications in the Harmonized Tariff Schedule of the United States (HTSUS) likely violate the Equal Protection Clause of the Fourteenth Amendment. It critiques the Federal Circuit's application of a lower level of scrutiny in Totes-Isotoner Corp. v. United States and advocates for courts to apply intermediate scrutiny, as established by Craig v. Boren, to such classifications. The analysis also examines the role of the Office of the U.S. Trade Representative (USTR) in trade negotiations and asserts that international agreements cannot override constitutional protections.

Continental Shelf Delimitation Beyond 200 Nautical Miles: Approaches Taken By Coastal States Before The Commission On The Limits Of The Continental Shelf, Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Cardozo Law Review

No abstract provided.

Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw

Faculty Scholarship

This Article revisits the history of Critical Race Theory (CRT) through a prism that highlights its historical articulation in light of the emergence of postracialism. The Article will explore two central inquiries. This first query attends to the specific contours of law as the site out of which CRT emerged. The Article hypothesizes that legal discourse presented a particularly legible template from which to demystify the role of reason and the rule of law in upholding the racial order. The second objective is to explore the contemporary significance of CRT's trajectory in light of today's "post-racial" milieu. The Article posits …

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …