Jurisdiction as Power
In: University of Chicago Law Review, Band 88, Heft __
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In: University of Chicago Law Review, Band 88, Heft __
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In: 4 Savannah L. Rev. 129 (2017)
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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 important jurisdictional disputes. The Court's decision is part of a pattern, as several cases from the last decade have questioned the canon's validity, a surprising development given what appeared to be the canon's entrenched status. This state of flux and uncertainty provides an ideal time to assess the normative merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon's historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon's recent negative trajectory and that can be expected to shape its future path. These factors include docket composition, interest group activity, and the Supreme Court's attitude toward the civil justice system. This Article's examination of the jurisdiction canon has ...
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In: Virginia Journal of International Law (Forthcoming)
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In: Tamsin Paige, 'Piracy and Universal Jurisdiction' 12 Macquarie Law Journal 131 (2013)
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In: American journal of international law, Band 49, S. 506-517
ISSN: 0002-9300
In: Human rights review: HRR, Band 5, Heft 2, S. 22-47
ISSN: 1524-8879
Explores the issue of universal jurisdiction, focusing on the competence of US courts & drawing on empirical data from the late-1990s Holocaust Era Assets claims against companies accused of cooperating with the Nazis, refusing to restitute looted property, or exploiting slave & forced labor during WWII. From the perspective of a unilateral mode of jurisdiction, it is argued that the law creates a global market of virtue centered on US tort law & its "congenital model of capitalism." In addition, a sociological & normative perspective is assumed to address the construction of moral debates around 1990s reparations & restitution. After looking at the development of 20th-century reparations cases that mirror the evolution of international politics, the role of "new moral entrepreneurs," ie, historians & lawyers in reparations cases is examined in terms of these nonstate actors' ability to shame states. How claims impact the structure of sovereignty is considered with attention to their consequences for international relations structure per realism. In particular, the impact of the counterfactual rationale of these claims on state rationales is addressed. In discussing the new power games, it is asserted that law & ethics may have more consonance with power politics than typically suggested. Contending that power politics remains salient for international relations & that power must account for norms & the globalization of law & ethics, a parallel is drawn between the structure of unilateral jurisdiction & other US unilateral power plays. J. Zendejas
In: ICSID review: foreign investment law journal, Band 20, Heft 1, S. 205-244
ISSN: 2049-1999
In: ICSID review: foreign investment law journal, Band 20, Heft 1, S. 262-337
ISSN: 2049-1999
In: ICSID review: foreign investment law journal, Band 20, Heft 1, S. 148-201
ISSN: 2049-1999
In: Revue des affaires européennes: Law & european affairs, Band 10, Heft 3, S. 209-278
ISSN: 1152-9172
In: Principles of European Constitutional Law
In: Protection of Personnel in Peace Operations, S. 29-56
In: The United Nations Security Council in the Post-Cold War Era, S. 47-118