If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, 2019 Washington and Lee University School of Law
If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch
Washington and Lee Law Review Online
The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign ...
Jurisdiction And "Definitional Law", 2019 College of William & Mary Law School
Jurisdiction And "Definitional Law", John F. Preis
William & Mary Law Review Online
Professor Scott Dodson and I agree that the law of federal jurisdiction needs improvement. We disagree, however, on Congress’s power to make that happen. In an article published in 2017, Dodson argued that “jurisdiction” has an “inherent identity” that “[n]either Congress nor the courts can change.” In an article published the following year, I critiqued this claim. There, I argued that Congress is not obliged to respect jurisdiction’s inherent identity (to the extent it might have one). Rather, Congress need only respect the identity of jurisdiction contained in the United States Constitution. Professor Dodson recently published a ...
Plaintiff Personal Jurisdiction And Venue Transfer, 2019 University of California Hastings College of the Law
Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson
Michigan Law Review
Personal jurisdiction usually focuses on the rights of the defendant. This is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization ...
Patent Litigators Playing Cowboys And Indians At The Ptab, 2019 Notre Dame Law School
Patent Litigators Playing Cowboys And Indians At The Ptab, Michael E. Benson
Notre Dame Law Review Online
This Essay concerns a new frontier of crafty strategy to keep patents from review by the Patent Trial and Appeal Board (PTAB)—the invocation of tribal sovereign immunity to prevent the PTAB from obtaining (subject-matter) jurisdiction over the patent invalidity dispute.
Part I of this Essay provides background information about a current case in which the litigant has attempted to use tribal sovereign immunity in order to avoid an inter partes review (IPR) proceeding before the PTAB. Part II provides a brief summary of the current relevant law (tribal, patent, administrative, etc.) pertaining to tribal sovereign immunity in the context ...
The "Guarantee" Clause, 2019 Boston College Law School
The "Guarantee" Clause, Ryan C. Williams
Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...
Why Rape Should Be A Federal Crime, 2019 College of William & Mary Law School
Why Rape Should Be A Federal Crime, Donald A. Dripps
William & Mary Law Review
Sexual assault remains at high levels despite decades of legal reforms. The recent wave of accusations against public figures signals both the persistence of the problem and a new political climate for addressing it. The Article argues that Congress should make forcible rape a federal crime, to the limits of the Commerce Clause. This would bring federal assets to the fight against rape by redirecting them from enforcement of possessory crimes. The simple statutory proposal might be accompanied by a more ambitious reorganization of the Justice Department to include a Bureau of Violent Crimes. Replies are offered to objections based ...
Apparently, There Are Places Like Home: A Path To Propriety For Consent-By-Registration Jurisdiction In The Third Circuit, 2019 Villanova University Charles Widger School of Law
Apparently, There Are Places Like Home: A Path To Propriety For Consent-By-Registration Jurisdiction In The Third Circuit, Brett E. Broczowski
Villanova Law Review
No abstract provided.
The Effect Of The Internet Era And South Dakota V. Wayfair On The Unitary Business Rule, 2019 Boston College Law School
The Effect Of The Internet Era And South Dakota V. Wayfair On The Unitary Business Rule, Phillip Popkin
Boston College Law Review
On June 21, 2018, the Supreme Court in South Dakota v. Wayfair eliminated the sales tax physical presence rule for the Dormant Commerce Clause’s “substantial nexus” requirement. This decision extends a State’s ability to tax interstate commerce. This Comment argues that Wayfair’s expansion of state tax jurisdiction should be applicable all forms of state taxation, as opposed to solely sales tax because it interprets the substantial nexus requirement of the Dormant Commerce Clause. Corporate taxation’s unitary business rule should utilize the changes to the substantial nexus requirement to restore its original intention and adapt to modern ...
Henry V. Nev. Comm'n On Judicial Discipline, 135 Nev. Adv. Op. 5 (Feb. 28, 2019) (En Banc), 2019 University of Nevada, Las Vegas -- William S. Boyd School of Law
Henry V. Nev. Comm'n On Judicial Discipline, 135 Nev. Adv. Op. 5 (Feb. 28, 2019) (En Banc), James Puccinelli
Nevada Supreme Court Summaries
The Court held that NRS § 1.428 is constitutional. Thus, hearing masters are subject to the Nevada Commission on Judicial Discipline’s jurisdiction.
Table Of Contents, 2019 Seattle University School of Law
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, 2019 College of William & Mary Law School
Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.
William & Mary Law Review
Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.
The conservatives ...
Removal Without Approval? Corporate Litigative Authority To Consent To Federal Removal Where Adverse Parties Are Co-Equal Shareholder Co-Directors, 2019 College of William & Mary Law School
Removal Without Approval? Corporate Litigative Authority To Consent To Federal Removal Where Adverse Parties Are Co-Equal Shareholder Co-Directors, James M. Mcclure
William & Mary Business Law Review
The Case of Swart v. Pawar involved a novel question of law: can a president of a corporation claim authority on behalf of that corporation to consent to federal removal in a suit against a co-equal shareholder co-director even though that president lacks board approval or explicit authority from the business’s bylaws or charter? To address this question, the parties in Swart analogized removal to suit initiation and defense. Since the federal courts hearing the case did not assess the validity of these analogical arguments or a president’s removal authority generally, this Note evaluates the analogies as well ...
The Parochial Uses Of Universal Jurisdiction, 2019 George Mason University Antonin Scalia Law School
The Parochial Uses Of Universal Jurisdiction, Eugene Kontorovich
Notre Dame Law Review
This Article presents a new account of the function served by universal jurisdiction (UJ). This doctrine—one of the most diplomatically controversial in modern international law— allows states to prosecute certain grave international crimes, even committed abroad, and with no connection to the prosecuting state.
This Article shows that, far from being used as a tool of global policing, the UJ doctrine is, in practice, used to protect the parochial domestic interests of the prosecuting state. In showing this, this Article reconciles several paradoxes related to UJ—its broad and longstanding normative acceptance by states contrasted with its extremely rare ...
Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, 2019 William H. Bowen School of Law, University of Arkansas Little Rock
Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin
Washington University Global Studies Law Review
Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...
A Gun To Whose Head? Federalism, Localism, And The Spending Clause, 2019 Penn State Dickinson Law
A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen
Dickinson Law Review
President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its ...
#Personaljurisdiction: A New Age Of Internet Contacts, 2019 St. Mary's University School of Law
#Personaljurisdiction: A New Age Of Internet Contacts, Zoe Niesel
Indiana Law Journal
This Article explores the complicated relationship between minimum contacts and the modern internet. Part I traces the development of modern personal jurisdiction analyses in the areas of both specific and general jurisdiction. Interesting in this historical overview is the increased reliance on predictability, even as courts have recognized that advanced technologies and infrastructure have made the maintenance of lawsuits infinitely easier than in the days before International Shoe.7 Part II then explores the intersection between personal jurisdiction and the internet as well as the rise of the so-called Zippo “interactivity” test for jurisdiction in cases involving websites. Although Zippo ...
What Is Puerto Rico?, 2019 New York University School of Law
What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley
Indiana Law Journal
Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From ...
The Aftereffects Of Tc Heartland: How To Effectively Approach Motions To Dismiss And Motions To Transfer On The Basis Of Improper Venue, Jennifer Rosenblatt
Fordham Intellectual Property, Media and Entertainment Law Journal
Prior to the Supreme Court's decision in TC Heartland, the law of venue in patent infringement actions fluctuated over time. In recent history, the Eastern District of Texas became a notoriously plaintiff-friendly forum in which to litigate patent infringement actions; it was also a widely available choice of forum due to the Court of Appeals for the Federal Circuit's broad reading of the patent venue statute, 28 U.S.C. § 1400(b). However, the Supreme Court in TC Heartland adopted its earlier interpretation of the patent venue statute that is much narrower than subsequent interpretive expansions.
This Note ...
Data Protection In An Increasingly Globalized World, 2019 Maurer School of Law - Indiana University
Data Protection In An Increasingly Globalized World, Nicholas F. Palmieri Iii
Indiana Law Journal
With the rise of the internet in recent decades, it has become increasingly easy for various enterprises—including retailers, advertising agencies, and service providers—to acquire, use, and even share the personal details of their users. Such a trend is unlikely to decrease in the coming years; in fact, internet usage is only likely to increase as more and more people gain access to the internet. In the wakeof recent data breaches, including the now infamous breach of Equifax as well as the scandal involving Facebook and Cambridge Analytica, people are even more aware of the need for (and the ...
Plaintiff Personal Jurisdiction And Venue Transfer, 2018 University of California Hastings College of Law