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The Extraterritoriality Formalisms
No full textThe extraterritorial application of U.S. law was a settled issue for a long time. For about sixty years, U.S. law would apply abroad if conduct occurred or effects were felt within U.S. borders. This potentially broad sweep of U.S. law was limited in several ways—most importantly by the doctrine of “reasonableness” grounded in international law and explicated in the Restatement (Third) of Foreign Relations Law of the United States.
This approach had its detractors. In 2010, the U.S. Supreme Court joined the ranks of the critics in dramatic fashion. The Court cast aside the previous sixty years of jurisprudence—dismissing it as uninhibited “judicial lawmaking”—and created a new test. This new approach proceeded in two parts. A court should ask whether the “presumption against extraterritoriality”—a sometimes cited, but oft ignored concept— was rebutted by a “clear indication” in the text or “context” of the statute. If not, a court should then inquire whether the particular case presents a “domestic application” of the statute. But merely “some domestic activity” would not constitute a domestic application of the statute. Rather, the court must define the “objects of the statute’s solicitude” and then determine whether that “focus” is within U.S. borders.
The Court presented this revolution as more predictable, less complex, and more deferential to the legislature. In reality, the Court traded the venerable uncertainties of the conduct-and-effects test for the new, poorly understood, and unanticipated uncertainties of the “Morrison two-step.” Many commentators have attempted to make sense of Morrison’s first step—the reinvigorated presumption against extraterritoriality. But relatively few have examined Morrison’s second step—the question of what it means for a statute to apply domestically in the context of a transnational dispute. In fact, this second question—which the Morrison opinion treats practically as a throw-away line—has caused far more divergence and confusion among the lower courts. It has become a distorted reflection of the extraterritoriality inquiry: the same consequences, but with irrelevant facts or formalisms looming large in the picture. This article attempts to lay out both the current myths and mistakes of the so-called “focus test” and to chart a sensible path forward
Transactional Enforcement Discovery
Full text linkJoseph Stiglitz described the current Argentine sovereign debt crisis as “America throwing a bomb into the global economic system.” And yet, the U.S. Supreme Court decided to tackle only one head of this massive hydra. Presented with numerous issues arising from the controversy, the Court granted certiorari only on the issue of whether the Foreign Sovereign Immunities Act (FSIA) blocked Argentina’s creditors from obtaining discovery of Argentina’s worldwide financial transactions. Justice Scalia, writing for the Court, concluded that because the FSIA says nothing on its face about discovery—it says nothing about discovery.
But the majority did not grapple with the worldwide nature of the discovery granted. It assumed, without deciding, that worldwide discovery in aid of enforcement of a judgment is usually appropriate. This prompted Justice Ginsburg to dissent. Justice Ginsburg wrote that U.S. courts should not assume that the “sky may be the limit” for post-judgment discovery, especially given that other countries typically have far more limited document production. For Justice Ginsburg, discovery in aid of enforcement of a judgment is presumptively about U.S. courts looking to U.S. law about assets in the United States.
The split in the Court reflects deep confusion and disagreement among U.S. courts on the role of discovery in an era of worldwide hunts for assets to satisfy unpaid judgments and arbitral awards. Courts have struggled to define the limits of worldwide enforcement discovery for one overriding reason: U.S. courts—following the Supreme Court’s lead—have applied tests and concepts developed for pretrial discovery to the very different world of post-judgment enforcement discovery. Post-judgment enforcement discovery differs in its purposes, its presumptions, and its problems. This Article grapples with each and proposes new approaches to tackling two obstacles to enforcement discovery—restrictions on discovery and on execution
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
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Forum shopping and international commercial law /
No full text"Commentators and courts disagree on such fundamental issues as the definition of forum shopping and whether it is an 'unsung virtue' or an untrammelled vice. Disagreements persist on how to deal with 'virtuous' forum shopping or how best to proscribe 'evil' forum shopping, if such a distinction can at all be made. The articles reprinted in this two-volume collection illuminate, explore and contest these questions. Volume I analyses the definitions and purposes of forum shopping, the right and duty to practise it and how it relates to private international law. Volume II focuses on the link between forum shopping and uniform substantive law as well as discussing jurisdictional issues and arbitration. Together with an introduction by the editors, this collection provides a comprehensive overview of the topic and will prove useful to academics, students and practitioners alike"-
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Dispelling the Myths Behind First-author Citation Counts
Full text linkWe conducted a full-scale evaluative citation analysis study of scholars in the XML research field to explore just how different from each other author rankings resulting from different citation counting methods actually are, and to demonstrate the capability of emerging data and tools on the Web in supporting more realistic citation counting methods. Our results contest some common arguments for the continued
use of first-author citation counts in the evaluation of scholars, such as high correlations between author rankings by first-author citation counts and other citation
counting methods, and high costs of using more realistic citation counting methods that are not well-supported by the ISI databases. It is argued that increasingly available digital full text research papers make it possible for citation analysis studies to go beyond what the ISI databases have directly supported and to employ more
sophisticated methods
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