scholarly journals Degrees of Deference: Applying vs. Adopting Another Sovereign's Law

2018 ◽  
Author(s):  
Kevin M. Clermont
Keyword(s):  
International Law ◽  
Federal Courts ◽  
State Courts ◽  
State Law ◽  
Federal Law ◽  
Local Rule ◽  
The Federalist ◽  
The Status ◽  
Local Courts ◽  
Voluntary Adoption

103 Cornell L. Rev. 243 (2018)Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in the horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application involves the recognition of the other sovereign’s law properly governing by its own force, while adoption follows from voluntary consultation of the other’s law while formulating the local rule of decision in pursuit of fairness, convenience, or other local policies. The applying/adopting distinction can be difficult to draw, but draw it we must because many binary practical consequences turn on it. Those consequences range beyond the federalist implications for federal and state courts to the modifiability of the sovereign’s law and the availability of original and appellate jurisdiction in the local courts.

Probate and Domestic Relations Proceedings

2021 ◽  
pp. 61-72
Author(s):  
James E. Pfander
Keyword(s):  
Federal Courts ◽  
State Courts ◽  
State Law ◽  
Federal Law ◽  
Domestic Relations

This chapter examines the role of uncontested adjudication in probate and domestic relations proceedings. While state courts commonly issued constitutive decrees to recognize or create new legal relationships in these settings (to admit wills to probate or to confirm adoption of children), federal courts declined to hear uncontested proceedings to register or claim a right or title in these contexts. The federal courts lacked power to entertain uncontested applications for the issuance of constitutive decrees as to matters of state law. Such a finding lays the foundation for distinguishing between cases under federal law and controversies over state law, and helps explain the federal judicial reluctance to assert jurisdiction over matters of probate and domestic relations.

Unresolved Business: Federal Corporate Governance Enhancements

2018 ◽  
Author(s):  
Marc I. Steinberg
Keyword(s):  
Corporate Governance ◽  
Insider Trading ◽  
Securities And Exchange Commission ◽  
Federal Courts ◽  
Professional Conduct ◽  
State Law ◽  
Federal Law ◽  
Tender Offers ◽  
Federal Level ◽  
Federal Statute

This chapter analyzes and recommends federal corporate governance enhancements that should be implemented. These enhancements, which should be adopted in a measured and directed manner, are necessary to remediate certain deficiencies that currently exist. Consistent therewith, this chapter focuses on several important matters that merit attention, including the undue deference by federal courts to state law, the appropriate application of federal law to tactics undertaken in tender offers, the need for a federal statute encompassing insider trading, and the propriety of more vigorous oversight by the Securities and Exchange Commission (such as with respect to the “current” disclosure regime, the SEC’s Standards of Professional Conduct for Attorneys, and the Commission’s neglecting at times to invoke its statutory resources). Thus, the analysis set forth in this chapter identifies significant deficiencies that currently exist and recommends measures that should be implemented on the federal level to enhance corporate governance standards.

International Law in American Courts

2020 ◽  
pp. 145-178
Author(s):  
Gary Born
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Current Treatment ◽  
Federal Courts ◽  
National Interests ◽  
Public And Private ◽  
State Involvement ◽  
System P ◽  
The Status

This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are uncertain, frequently governed by contradictory or parochial rules of State law; the resulting body of international law that is applied by U.S. courts is unpredictable and incoherent. Over the past fifty years, U.S. federal courts have also increasingly marginalized both international law and the role of American courts in resolving international disputes. This treatment of international law threatens serious damage to historic U.S. values and frustrates vitally important national policies. The chapter then considers how the current treatment of international law in American courts is also contrary to the U.S. Constitution’s allocation of authority over the nation’s foreign relations and international trade, which vests the federal government with both plenary and exclusive authority over U.S. foreign relations and commerce, while, exceptionally, forbidding State involvement in either field. Moreover, this treatment conflicts with vital national interests and policies in both fields, frustrating long-standing national interests in the nation’s compliance with international law and development of the international legal system.

Brazil

2015 ◽  
Author(s):  
Adrian Ward ◽  
Marcia Araujo Sabino de Freitas ◽  
Henrique Moraes Prata ◽  
Fabr�cio Bertini Pasquot Polido
Keyword(s):  
Hybrid System ◽  
Common Law ◽  
Civil Law ◽  
State Courts ◽  
Elderly Persons ◽  
Federal Law ◽  
Constitutional Amendments ◽  
Federal Constitution ◽  
The Status ◽  
International Conventions

Brazil is a civil law country, with mainly codified law, but which as a result of increasing common law influence is moving towards being a hybrid system. Brazil is a federal republic. States have their own laws and courts, but adult incapacity issues are governed mainly by federal law. State courts have jurisdiction in procedure for incapacitation. Cases are normally heard at first instance in specialized family and succession courts. The federal constitution of 1988 is frequently cited. International conventions approved by qualified majorities in both Houses of Congress attain the status of constitutional amendments. This applies, for example, to UN CRPD. The current civil code dates from 2002. There are in addition relevant statutes, particularly the Statute of Elderly Persons 2003 (‘2003 statute’).

The Nineteenth-Century Perspective on Federal Judicial Power

2021 ◽  
pp. 73-84
Author(s):  
James E. Pfander
Keyword(s):  
Nineteenth Century ◽  
Federal Courts ◽  
Judicial Power ◽  
State Law ◽  
Federal Law ◽  
The U.S ◽  
The Way

This chapter examines the way nineteenth-century jurists defined the words “cases” and “controversies” in Article III of the U.S. Constitution. It shows that federal courts agreed to hear uncontested applications to claim rights under federal law as “cases” under Article III. But the same courts refused to hear matters governed by state law unless they arose between opposing parties as “controversies” within Article III. This distinction between cases and controversies meant that a claim of right by a petitioner, such as that in a naturalization petition, would qualify as a case, even though the plaintiff did not join an adverse party from whom the plaintiff sought redress.

5 Customary International Law

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Status ◽  
Common Law ◽  
State Law ◽  
Customary International Law ◽  
Executive Authority ◽  
Law Of Nations ◽  
The Status ◽  
The U.S

This chapter considers the status in the U.S. legal system of customary international law, which was historically referred to as part of the “law of nations.” After considering what the text of the Constitution suggests about this issue, the chapter discusses how courts historically applied customary international law in cases in which it was relevant and how courts referred to it (in cases such as The Paquete Habana) as “part of our law.” The chapter also recounts the modern debates and uncertainties about the current domestic legal status of customary international law. In particular, the chapter explores the possibility that customary international law might have the status of post-Erie “federal common law” and what such a status might mean for questions of jurisdiction, preemption of state law, and limitations on congressional and executive authority. It also discusses various ways in which customary international law can be important in the U.S. legal system even if it is not applied directly by the courts, such as through the Charming Betsy canon of construction. The chapter concludes by discussing controversies concerning the Supreme Court’s consideration of foreign and international law materials when interpreting the U.S. Constitution.

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