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The Future of Jurisdiction
Full text linkA new paradigm for conceptualizing the doctrine of personal jurisdiction is long overdue. In the 19th century the U.S. Supreme Court established a firm territorialist approach to jurisdiction befitting a geographically spread-out country with many local micro-economies. The more flexible “minimum contacts” test articulated in 1945 by International Shoe v. Washington ushered in a 20th century vision responding to increased automotive transportation and national industrial production. But now, at least three decades into the Internet and information economy era, the U.S. Supreme Court has yet to land on a coherent jurisdictional framework for the new century.
It’s not for want of trying. Since 2010, the Supreme Court has decided at least seven major jurisdiction cases. But all seven have resulted in conceptually problematic resolutions, and in two of them—including the most recent, Mallory v. Norfolk Southern Railway—the Court could not even muster a true majority rationale. Indeed, even the basic purpose of jurisdictional law—is it to ensure fairness to defendants or is it to prevent states from encroaching on other states?—has remained murky since the very beginning. And as Mallory makes clear, the Court’s confused and bi-furcated approach regarding the purpose of jurisdictional law can lead to very different outcomes in particular cases.
Fundamentally, we need to recognize that “minimum contacts” has become an unsatisfying approach in a 21st century dominated by virtual social life, deterritorialized goods and effects, and the ability of both large industrialists and individuals to reach consumers anywhere anytime. In such a world, “contacts” with a territorially-based entity does not capture the reality of the underlying transaction.
Instead, this Article proposes a distinct framework for analyzing jurisdiction cases, one based on community affiliation. The real question underlying jurisdiction, I argue, is whether a legal dispute sufficiently implicates a community such that it is appropriate for that community to assert dominion over the dispute without unduly encroaching on the sovereignty of other states. And though the answer to that question is surely not always beyond dispute, it at least focuses attention on the core issues that should determine a jurisdictional inquiry.
My argument in favor of this approach proceeds in four Parts. Part One focuses on the problem of territoriality as the basis for jurisdiction, emphasizing the various ways in which a territorialist approach fails to capture the reality of 21st century social life and commercial activity. Part Two examines the U.S. Supreme Court’s conceptual confusion about the purpose of jurisdictional doctrine and argues for an approach based on the connection between the case and the community, rather than the due process rights of defendants. Part Three traces the development of the Supreme Court’s general v. specific jurisdiction dichotomy and argues for a less categorical approach. Finally, Part Four sets forth a set of principles that should guide the future of jurisdiction. And while these principles do not “solve” all difficult jurisdictional issues, they do provide a more coherent analytical framework for courts as they wrestle with jurisdictional conundrums in the 21st century
Modern Military Justice: Cases and Materials (4th Ed.) (2024) (West Academic)
Full text linkThis textbook comprehensively covers the modern military justice system of the United States, under the Uniform Code of Military Justice. This text is appropriate for all students, with or without prior military experience. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. Materials from every Service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at Abu Ghraib prison. The text covers the jurisdiction of courts-martial; sources of military law; military offenses and defenses; pretrial, trial, and appellate procedures; the role of judge advocates; nonjudicial punishment and other alternatives to courts-martial; special forums, such as boards of inquiry; the relationship of courts-martial to state and federal courts; and much more. All chapters include policy questions about controversial issues. The Fourth Edition addresses all the changes to the UCMJ and the Manual for Courts-Martial since publication of the Third Edition in the Spring of 2019. The Fourth Edition also includes several recent cases and updates that address the significant changes made in the 2024 Manual for Courts-Martial, and other recent legislation. Additionally, this new edition contains a revised Chapter 1 that provides an overview of the new military justice charging system, and includes an updated chapter concerning the substantive law of rape and other sex crimes, as well as an expanded coverage of inappropriate relationships and extramarital sexual conduct, under the UCMJ
Compensation Under the Microscope: Michigan
Full text linkThe number of exonerees denied compensation in Michigan – 25 – is the third highest in the country, behind New York and California. As of this writing, there are 107 Michigan exonerees listed in the National Registry of Exonerations who have filed for state compensation. By comparison, of the 88 exonerees who filed in Ohio, only six have been denied. The purpose of this article is to analyze why the number of denials in Michigan is as high as it is. Part of the answer lies in a particularity of the Michigan compensation statute. The Michigan legislature is, however, considering significant amendments to the statute. This article considers the extent to which those amendments might change the outcomes in some of these 25 cases
The Old and The New Governors: Efforts to Regulate and to Influence Platform Content Moderation
Full text linkThe era of “Hands off the Internet” is clearly at an end. Fueled by conservatives’ charges of platform bias, state governments have enacted, and the federal government has proposed, regulations to control platforms’ discretion in moderating content. Justice Thomas recently provided a roadmap for such regulation, suggesting that governments impose common carrier or public accommodation regulations on platforms to limit “viewpoint discrimination.” States like Texas then enacted regulation prohibiting “viewpoint discrimination” in content moderation, and this regulation was upheld by the Fifth Circuit. Florida enacted similar legislation, but such this statute was largely struck down by the Eleventh Circuit. This Term, the Supreme Court will weigh in on the protection the First Amendment grants to the platforms to moderate content – and to resolve the circuit split. Meanwhile, Congress has proposed statutes governing platform content regulation and the EU has enacted regulations on the subject.
At the same time, the Biden Administration became increasingly concerned that the platforms were not moderating enough content–especially during the COVID pandemic and after the January 6 insurrection. The Administration worked closely with the platforms to attempt to get them to remove COVID- and election-related misinformation and has now been accused of unconstitutionally coercing the platforms to moderate content. The Fifth Circuit recently held that the Administration’s actions violated the First Amendment, and the Supreme Court will also decide this Term whether to affirm that holding.
This Article examines the First Amendment implications of these various regulations and other government actions regarding platform content moderation. Although these are novel issues, First Amendment case law provides helpful guidance. On the issue of the constitutionality of state regulation of the platforms’ content moderation decisions, the Supreme Court three decades ago decided a similar case in which the government regulated speech platforms in the interest of protecting a diverse and expansive marketplace for speech. In Turner Broadcasting Systems v. FCC, Congress regulated cable network operators to ensure that they carried over-the-air broadcasts, in part to protect the public’s access to a multiplicity of information sources. Ruling on the cable operators’ First Amendment challenge, the Supreme Court recognized that there were important free speech interests on both sides – on the part of the regulated cable operators and on the part of the viewing public who were the intended beneficiaries of the regulation. In weighing these interests, the Court held that the right of the viewing public to receive access to a multiplicity of information sources was paramount. Justice Breyer’s concurring opinion on remand addressed the cable operators’ contention that the regulation impermissibly restricted their free speech rights. Breyer acknowledged that the regulation interfered with the editorial discretion of the cable operators and that it “extract[ed] a serious First Amendment price—amounting to the suppression of speech [by interfering] with the protected interests of the cable operators to choose their own programming.” Yet, he explained, there were other, weightier First Amendment interests on the other side of the balance – the side of the viewing public.
The Supreme Court should apply a similar approach to the Texas and Florida regulation of platform content moderation, recognizing that there are important free speech interests on both sides of the equation – on the part of the platforms and on the part of the platforms’ users. And, as it did in Turner, the Court should construe these regulations as content-neutral laws and should apply intermediate scrutiny to them. The Court should go on to rule, however, that neither the Texas nor the Florida legislation is narrowly tailored to advance the important government interests that they seek to advance. The Texas statute prohibits all manner of viewpoint discrimination and the Florida statute prohibits moderation of journalistic enterprises by the platforms. Both statutes fail intermediate scrutiny because they could have been more narrowly drawn to prohibit only the types of viewpoint discrimination – i.e., political and religious viewpoint discrimination – that were the motivating factors for such regulations.
With respect to the states’ lawsuit against the Biden Administration alleging that it impermissibly coerced the platforms into censoring disfavored (but First Amendment protected) content, the Supreme Court should hold that the Biden Administration officials came close but did not cross the line from permissible persuasion to impermissible coercion; rather, these government actors exercised their free speech rights under the government speech doctrine to attempt to persuade the platforms to moderate content in the ways that the Administration recommended
Constitutional Federalism and the Nature of the Union
Full text linkFederalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in North America became “Free and Independent States” following the Declaration of Independence—a status that entitled them to all of the rights and powers of every other sovereign state under the law of nations. Under that law, states could alienate their sovereign rights and powers in a binding legal instrument, but only if the instrument met certain requirements. As Vattel explained, and Hamilton echoed in The Federalist, all instruments used to alienate such rights and powers were subject to an important background rule designed to avoid misunderstandings and war: a legal instrument could alienate sovereign rights and powers only if it did so in clear and express terms or by unavoidable implication. Instruments that failed this test left sovereign rights and powers with the original holder. Hamilton explained that because the Constitution involved a “division of the sovereign power,” this rule was “clearly admitted by the whole tenor of the instrument.” Thus, as this Article and our prior work reveal, the proper question in federalism cases is not whether the Constitution affirmatively grants the States sovereign rights and powers (it does not), but whether it includes text sufficient to alienate the rights and powers they enjoyed when they became “Free and Independent States.” From this perspective, the Court’s leading federalism doctrines have a firm basis in the original meaning of the constitutional text—understood in its full legal and historical context. In defending this thesis, the Article responds to several scholars who have recently challenged our approach. Their critiques do not withstand scrutiny and are refuted by substantial evidence found not only in America’s pre-constitutional founding documents and background law, but also in The Federalist Papers, the ratification debates, and significant early opinions of the Supreme Court
Testimony of Jessica Tillipman Associate Dean for Government Procurement Law Studies, The George Washington University Law School, Before the Senate Committee on Homeland Security & Governmental Affairs Safeguarding the Homeland: Examining Conflicts of Interest in Federal Contracting to Protect America’s Future
Full text linkThis testimony, presented before the U.S. Senate Committee on Homeland Security & Governmental Affairs, examines longstanding deficiencies in the regulatory framework governing organizational conflicts of interest (OCIs) in federal contracting. While acknowledging recent legislative progress, including the enactment of the Preventing Organizational Conflicts of Interest in Federal Acquisition Act, the testimony highlights how current Federal Acquisition Regulation (FAR) provisions are outdated, inconsistently applied, and ill-suited to modern procurement practices—particularly in advisory and consulting services with national security implications. The testimony argues for a balanced and modernized approach to OCI reform that enhances clarity, strengthens compliance and disclosure obligations, and provides more uniform guidance across agencies, while avoiding overcorrections that risk discouraging competition and innovation in the federal marketplace
Grappling with DEI Issues through an Environmental Negotiation Case Study
No full textThis article will describe a teaching module that grapples with diversity, equity, and inclusion (DEI) issues in the context of an environmental negotiation case study, seeking to provide guidance useful to professors in both doctrinal and skills courses. The teaching tools offered could readily be adapted to case studies other than the hazardous waste permitting scenario described here, and could be applied in an environmental law or administrative law course, as well as in a negotiation or other skills course.
This teaching module is structured in four parts: first, assigning advance readings and handouts; second, utilizing case studies that require students to engage with DEI issues as they negotiate; third, conducting a facilitated review of the process in which students have engaged, including discussion of how the DEI issues were managed; and fourth, requiring completion of a written journal from each student that follows up the oral discussion and further mandates integration of relevant concepts from the assigned readings.
Foreign Country Judgments and Full Faith and Credit
No full textDespite the common understanding that the Full Faith and Credit Clause and Act do not apply to foreign judgments, these provisions do sometimes intrude on the recognition and enforcement of such judgments. This essay discusses two such situations. The first is when a court in one U.S. state recognizes a foreign judgment. The question then arises whether the U.S. judgment recognizing the foreign judgment is entitled to full faith and credit in other U.S. states. The second situation is when a foreign judgment and a domestic judgment conflict. When domestic judgments conflict, the usual rule in the United States is that the last in time should be given priority. Courts have generally extended this last-in-time rule to foreign judgments. But when the conflict is between a foreign judgment that is not entitled to full faith and credit and a domestic judgment that is, should the Full Faith and Credit Clause instead break the tie, giving priority to the domestic judgment regardless of the order in time
The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education
Full text linkThis paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious exercise and knowledge acquisition, as well as Fourteenth Amendment themes of minority vulnerability, family privacy, and parental concerns beyond education.
Part II searches for lessons from the Meyer-Pierce legacy in several contemporary contexts. Part II.A. focuses on a culture war clash in which Meyer-Pierce rights seem exceptionally strong -- regulation of parental consent to gender-affirming medical care for minors suffering from gender dysphoria. In the October 2024 Term, the Supreme Court will decide United States v. Skrmetti, a case presenting a challenge to the Tennessee legislation on this subject.
Part II. B. analyzes issues in education. Among these are parents’ rights to control the content of public-school curricula, including instruction about matters of race, sexual orientation, and gender identity; to receive information about gender-related changes in how their children present themselves at school; and to receive financial support of the state in educational choices, including the possibility of religious charter schools. Comparison among these contexts illuminates the many ways in which other, contemporaneous changes in constitutional law influence the shifting shape of parents’ constitutional rights
FEATURE COMMENT: Don’t Let Post-Employment Conflicts Derail Your Contract Award
Full text linkOften referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes.
In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, in recent years, contractors have faced another growing area of risk: protests. In numerous recent bid protests, protestors have alleged “unfair competitive advantages” stemming from Government contractors’ hiring of former Government employees— these include several high-profile examples in which the protests were sustained.
Given the increasing prominence of these protests, we surveyed GAO and U.S. Court of Federal Claims protest decisions to identify when those fora have found post-employment unfair competitive advantages and when they have not. We summarized our assessment in a convenient chart that practitioners may use in evaluating potential conflicts. By being vigilant about these concerns and addressing them proactively, contractors may reduce their risk of being the subject of a protest