Assertion Of Jurisdiction Research Articles

Conceptualising Extraterritoriality. Public International Law and Private International Law Considerations

Abstract The aim of this article is to analyse extraterritoriality from public international law and private international law perspectives. Although many scholars relate the exercise of extraterritorial jurisdiction to both private and public international law, in practice the topic is mainly considered as belonging to the latter. Moreover, extraterritorial jurisdiction is not a common notion under private international law. Perhaps because the extraterritorial norm is intended to regulate first and foremost state conduct and not relationships between private persons, but this vision does not take into account that the latter are frequently affected by the norm. It is argued here that from a public international law perspective, the legal framework of extraterritorial jurisdiction is unsettled and incomplete. The bottom line is that states are largely free to unfold their power, given that international law does not really regulate extraterritorial jurisdiction but only establishes the negative obligation not to trespass on state sovereignty. Thus, considering extraterritorial jurisdiction from a national perspective, in this paper, under the general framework of private international law is not only necessary but also justified. In addressing the above, this article will first analyse extraterritoriality as an exception under public international law (2). It will reflect on the lawful/unlawful grounds for the exercise of extraterritorial jurisdiction and will show that the abandonment of territoriality in jurisdictional assertions is more desirable than feasible. Then extraterritoriality will be analysed as an inherent feature of private international law, that can be traced in all three domains regulated by the private international law (3). It will also make a case on the extraterritorial reach of national constitutions.

US anti‐suit injunctions and German anti‐anti‐suit injunctions in SEP disputes

AbstractThe essay argues that anti‐suit injunctions granted in disputes on standard‐essential patents are inconsistent with the general standards governing anti‐suit injunctions. The section on anti‐suit injunction demonstrates that the case law on anti‐suit injunctions is not comparable to disputes over standard essential patents. In contrast, anti‐anti‐suit injunctions are a legitimate response to an extraterritorial assertion of jurisdiction by foreign courts. Under EU law, the courts of member states might even be required to issue anti‐anti‐suit injunctions to protect their exclusive jurisdiction over patents.

The transformation of the art market: Law, norms, and institutions

Abstract Over the last three decades, the art market has undergone a remarkable transformation. Before the 1990s, artworks were sold with hardly any concern about whether they had been stolen or looted, whereas now any reputable gallery or auction house checks the “provenance” of any substantial work before sale. This transformation reflects interlocking changes in law, norms, and institutions. New York’s and more broadly the United States’ assertion of jurisdiction and application of U.S. substantive law has destabilized title to stolen and looted goods worldwide because American statutes of limitations generally provide weaker protection for those who possess stolen or looted goods even in good faith. Application of American law has had a profound effect, especially for the high end of the market, because European or Asian investors who purchase art outside of the U.S. may eventually want to sell or display their works in the U.S. Defective title under American law thus affects prices worldwide. The tightening and broader application of American law reflects both longstanding legal principles and changes in social norms towards the redress of historical wrongs, most notably prominent campaigns relating to art confiscated or sold under duress in Nazi Germany. New institutions, most importantly searchable databases recording stolen and looted art such as the Art Loss Register, are also changing perceptions about minimum standards for good faith purchase, which in turn affects both social norms and court cases. These new norms, induced by both legal changes and better information, have influenced the market even for less valuable art, for which sale or display in the U.S. is not a relevant consideration and for which the threat of costly legal action is not credible. The fact that social and institutionalized norms play an important role in protecting original owners is probably good, because norms and institutions can be effective even where law is not and often do so at lower cost.

Executive Order 13928 on Blocking Property of Certain Persons Associated with the International Criminal Court

On June 11, 2020, President Donald J. Trump issued Executive Order 13928 Blocking Property of Certain Persons Associated with the International Criminal Court under the authority vested in him by the International Emergency Economic Powers Act (IEEPA) and other federal statutes. Although the Trump Administration had earlier threatened aggressive action against the International Criminal Court (ICC), the issuance of the E.O. followed a ruling by the ICC Appeals Chamber authorizing the Prosecutor to commence an investigation into the situation in Afghanistan, which might implicate U.S. persons. The E.O. declared the ICC's “illegitimate assertion of jurisdiction” over U.S. personnel and the personnel of “certain of its allies” to be “an unusual and extraordinary threat to the national security and foreign policy of the United States” within the meaning of IEEPA. It is a sweeping measure, blocking all property within the United States owned by designated natural or legal person (section 1); barring any contribution or provision of funds, goods, or services to, or for the benefit of, designated persons (section 3), including even the donation of food, clothing, or medicine (section 2). The E.O. also authorized the imposition of certain immigration restrictions, including suspension of entry into the United States of ICC officials and their immediate family members (Section 4).

“Do Not Do Abroad What You Would Not Do at Home?”: An Exploration of the Rationales for Extraterritorial Criminal Jurisdiction over a State’s Nationals

AbstractCompared to universal jurisdiction, active nationality jurisdiction remains one of the least understood and written about forms of extraterritorial criminal jurisdiction. This article seeks to offer a normative account of the exercise of criminal jurisdiction by states over their nationals for crimes committed abroad such as sexual offences against minors, bribery of foreign public officials, or medical “circumvention” tourism. It highlights all of the reasons that militate against such assertions of jurisdiction as a matter of policy and law. It goes on to argue that the assertion of criminal jurisdiction over nationals for crimes committed abroad must be understood beyond its permissibility under international law as a modality that manifests the interests of the state of nationality, the territorial (host) state on occasion, the relevant individuals, and, increasingly, the international community.

Ǧviḷ̕ás and Snəwayəɬ: Indigenous Laws, Economies, and Relationships with Place Speaking to State Extractions

A discussion about Indigenous economies, governance, and laws begins with relationships. These relationships are centered in a place, a traditional territory, and include responsibilities towards that place. Such a relational approach to Indigenous economies is in conflict with capitalist modes of extraction and the settler Canadian court’s narrow conception of the duties of “consultation and accommodation” as the state’s primary responsibility when an activity or project will infringe Aboriginal rights in a traditional territory. The purpose of this article is to explore the conflict between Indigenous economies and state-sponsored extraction drawing on the experience of two Indigenous nations in British Columbia, Canada—the Heiltsuk and Tsleil-Waututh Nations—who are upholding their relationship with their traditional territories through the assertion of jurisdiction. The Heiltsuk continue to challenge the federal Department of Fisheries and Oceans’ permitting commercial herring fisheries, and have dealt with a marine diesel spill using their own legal processes. The Tsleil-Waututh are opposing the construction of another fossil fuel pipeline in their territory that would increase tanker traffic in the habitat of endangered orcas by seven hundred percent by conducting their own assessment of the project based on Coast Salish law. These exercises of jurisdiction demonstrate relations with and responsibilities towards these Nations’ traditional territories that underscore ecosystem health and wellbeing as the foundation of Indigenous economies. While these examples effectively demonstrate the Nations’ responsibility towards their territories, the regimes of state-sponsored extractions require radical reformulation to be able to engage relational processes of consent.

The Achievements and Limits of Global Counter-Terrorism Cooperation

This chapter investigates the importance of domestic law for international counter-terrorism cooperation. It highlights an important but often forgotten truism: that any response to terrorism requires action by State organs directed against activities of non-State actors, and these actors – most notably individuals – have rights under domestic law that national authorities cannot breach. National law therefore provides a substantial limit on any response to terrorism. This is true both of the conventional counter-terrorism system based on punitive measures, viz. criminalisation and assertion of jurisdiction, as well as of the post-2001 regime established by the United Nations (UN) Security Council, which is essentially preventive, focusing on the freezing of assets and the listing of suspects. This chapter therefore seeks to illustrate both the achievements and limits of international law by focusing on global counter-terrorism cooperation. The chapter is divided into three parts. The first part provides an overview of the origins of transnational criminal law enforcement and some of the historical limitations of the criminal regime, focusing especially on extradition. The following two parts focus specifically on counter-terrorism cooperation before and after 2001, highlighting the incremental improvement in the protection of individual rights and the limits of transnational criminal law enforcement.

Human rights, extraterritoriality and the good international citizen: a cosmopolitan perspective

This article revisits the possibilities of the good international citizen (GIC) as a civilising agent in international society. It argues that an underdeveloped resource for thinking about state responsibilities as GIC is the idea of cosmopolitan extraterritoriality (ET) in relation to human rights. ET, the assertion of jurisdiction beyond territorial borders, has long been associated with statist and nationalist purposes; however, a significant cosmopolitan, and civilising, potential can be found within practices of ET in relation to human rights and certain aspects of criminal law such as in the practices of child sex tourism and trafficking. This form of ET allows states to restrain their own citizens abroad and potentially restrain their own foreign policies and practices by accepting limits on their freedom of action derived from respect for human rights and respect for the rule of law.

From Sacred to Public:

This narrative essay discusses the transformative nature of colonialism in the creation of the Stein Valley Nlaka’pamux Heritage Park by highlighting how the creation of the park simultaneously tokenizes and erases Indigenous presence on the land and in the waters. Taking up themes of alienation and everyday violence, this essay considers the use of stereotypical notions of Indigeneity in the campaign to save the Stein and how this impacted the way that Nlaka’pamux communities relate to the park today. In doing so, this paper also brings into question the complexities of settler allyship and their potential cooptation of Indigenous assertions of jurisdiction when settlers recenter themselves in the struggle.

“Gateways” within the Civil Procedure Rules and the future of service-out jurisdiction in England

For well over 150 years, the heads of jurisdiction currently listed within paragraph 3.1 of Practice Direction B, accompanying Part 6 of Civil Procedure Rules, have played a vital role in the English courts’ assertion of jurisdiction over foreign-based defendants. These jurisdictional “gateways” identify a broad range of factual situations within which courts may decide to entertain claims against defendants outside England. However, the existing general framework for deciding service-out applications is increasingly vulnerable to attack. In particular, the greater prominence of the forum conveniens doctrine, but also problems arising from the gateways’ operation, combine to cast doubt on their continued role (and relevance) in service-out cases. Against this backdrop, the article assesses the case for abandoning the gateway precondition. It is argued that rather than jettisoning the gateways, future revision of the law in this area should aim to minimise ambiguities concerning the gateways’ scope and also ensure that they include only instances which connote meaningful connection between the dispute and England.

Beyond de jure and de facto boundaries: tracing the imperial geographies of US law

Since 1945, US judges have extended numerous “domestic” US laws (including securities and antitrust laws) to govern economic transactions taking place “abroad”. However, they have generally failed to extend US labor and employment laws to govern employer–employee relationships outside “US territory”. Through a close reading of federal court decisions and drawing on recent work in the field of critical legal studies, this article makes an argument for centering the study of jurisdiction in International Relations scholarship and for approaching states as instantiated in their jurisdictional assertions. I suggest that such an approach enables us to capture the geographies—including the imperial geographies—of US law in the “normal,” everyday course of affairs. In particular, such an approach allows us to see that, since the mid-20th century, the legal authority and legal relations of the US government have come to be organized around the notion of the national economy (rather than simply around, for example, notions of territory or citizenship). What this means is that it is increasingly a posited relationship to this national economy that determines whether people and corporations, wherever in the world they are located, are subjected to or protected by US law.

Mergers, Extraterritorial Jurisdiction and Convergence of EU and US Law

Competition law is structured with the objective of attaining consumer welfare maximization and the efficiency of the market. This is to achieve a perfectly competitive market with concentrations on price, quality, and innovation of products and services. The legislative practice of the EU is aimed at harmonization and it can be compared to the US, which was the first country to establish the ‘effects doctrine’ involving foreign companies. The benefits and problems of extraterritorial assertion of jurisdiction on merger cases needs to be demonstrated in a global market because the mergers extend the anti-competitive effects to other parts of the world, externally from where they originate. This article will identify the advantages and disadvantages of extraterritorial jurisdiction on merger control, and the convergence of US and EU approaches with the intention of setting out a framework to decrease the legal conflicts between antitrust regimes in order to avoid the costs of multiple notifications.

Global Legal Pluralism as a Normative Project

Legal pluralists have long recognized that societies consist of such multiple overlapping normative communities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems. In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities. Traditionally, legal pluralism has been primarily a descriptive enterprise. Anthropologists, historians, and other social scientists have generally seen legal pluralism as simply a reality, neither good nor bad, neither desirable nor undesirable. Instead, they have defined their task principally as an exercise in thick description: cataloging the inevitable hybridity that arises when two legal or quasi-legal systems occupy the same social space, as well as the resulting strategic interactions that occur among those navigating the multiple regimes. This is not to say, of course, that legal pluralism as a scholarly project was (or ever could be) devoid of implicit values and normative biases. Indeed, one might say that two strong normative undercurrents have always animated legal pluralism. First, legal pluralism was an attack on legal centralism, the idea that law was the sole province of the state and its formal institutions. Pluralists sought to undermine the assumption of state power, discovering agency and subversive opportunities among those presumed to be marginalized. As such, legal pluralism was a way of critiquing the power of the state and even at times celebrating resistance to state hegemony. Second, legal pluralism often had an implicit pro-local bias, particularly in its emphasis on forms of resistance to colonial state hegemony. Perhaps echoing cultural anthropology’s more general celebration of the local, legal pluralists tended to make the local, the indigenous, and the anti-colonial the heroes of the narrative. Nevertheless, even if we grant these implicit value preferences, legal pluralists, following most social scientists, generally have eschewed the sorts of strong normative arguments law professors routinely make: because of such-and-such research, we should now change legal or governmental systems in these particular ways. And there are surely virtues in focusing on thick description rather than normative prescription. Among other things, the constant pressure to produce “useful” work that will appeal to judges and policy-makers often forces legal academics into overly strong normative claims based on little evidence or an incomplete understanding of the complexity at work in social forces. One yearns for more effort to comprehend reality before switching to how best to reform it. And yet in this Essay, I conduct a thought experiment. What might it mean for legal pluralists to play out some of the normative implications of their work for theories of law, policy, and governmental institutional design? Do legal pluralists have something distinctive to add to contemporary law and governance debates? Or would asking such questions ultimately undermine the core insights of legal pluralism by committing scholars to particular modes of governance hierarchy? And if it did, is that a trade-off we can bear as scholars in exchange for policy relevance? And even if we were willing to make such a trade-off, is a legal pluralist position inherently in tension with any effort at systemic reform because legal pluralism recognizes that any system will always be partial, contested, and contingent? Or might systemic reform that is partial, contested, and contingent nevertheless be better than no reform at all? Most fundamentally, I believe legal pluralists might be able to mount a clear-throated defense of legal rules and governance institutions that foster interaction and dialogue among those multiple norm-generating communities rather than dissolving diversity either into universalism, on the one hand, or tribalism, on the other. And we need that defense right now, if only to name the values of diversity, dialogue, and communication across difference that are at the core of the world we might be on the brink of losing.

Semi-Public Offerings? Pushing the Boundaries of Securities Law

Securities law traditionally only permits corporations that have registered with the Securities and Exchange Commission (“SEC”) and completed an initial public offering (IPO) to sell equity to the general public. The initial coin offering (ICO) is a new kind of fundraising tool private blockchain-based companies have used over the past several years to raise billions of dollars, circumventing registration with the SEC and the public offering process altogether. But U.S. ICOs have been struggling to avoid the SEC’s assertion of jurisdiction over their offerings. The purpose of this Essay is to use ICOs as the launching point for a thought experiment about how securities law might harness technology—here blockchain technology—in service of lowering the cost of capital-raising from the general public while continuing to serve the underlying goals of U.S. securities law. Such a mechanism would do more than facilitate economic growth—it also has the potential to distribute investment gains more broadly by permitting the general public to access investments in private companies that have until now been the exclusive preserve of the rich.

Storage at the State Level: Promotion and Obstruction

Although the primary statutory framework remains unchanged, a series of court decisions is altering the balance between federal and state jurisdiction over the electric power system. The “Platonic ideal” of a bright line between systems subject to FERC jurisdiction and systems subject to state jurisdiction is “smudging,” as entities located within the traditional zone of state control are increasingly capable of providing services in the FERC-regulated wholesale markets. FERC’s recent assertion of jurisdiction over energy storage resources located on the distribution system or behind the meter (“BTM”) is indicative of the changing landscape. The introduction of federal authority carries with it the possibility of preemption and defines the extent to which states can take action. Several states, most notably California, are already promoting BTM storage. This paper uses the California experience as evidence for a broader theory: the emerging “collaborative federalism” creates a much broader space for promoting energy storage resources than it does for limiting their proliferation. In Part I, the paper briefs the cases that define federal/state authority in electricity law under the emerging, functionalist or “collaborative federalism” approach. Part II explains why FERC’s Order 841, which asserts jurisdiction over storage resources on the distribution system and BTM, is probably lawful under the new approach. The section also explores Order 841’s potential opening for obstructive state policies. Part III examines California’s ongoing energy storage process to show how the “collaborative federalism” approach drives increasing cooperation between the states and the federal government. The section also identifies areas where jurisdictional details are being contested. The paper concludes by arguing states have significant room to promote energy storage but limited ability to restrain its growth. As storage proliferates, states should be proactive in collaborating with federal authorities to ensure the system delivers cheap power and remains reliable. If the states are not proactive, they risk losing authority over local reliability.

Revisiting the Critique Against Territorialism in the Law of the Sea: Brazilian State Practice in Light of the Concepts of Creeping Jurisdiction and Spoliative Jurisdiction

The United Nations Convention on the Law of the Sea (UNCLOS) consolidated considerable jurisdictional powers for coastal states and set the cornerstone for the “new” law of the sea. Such codification did not come on a plate, but derived from continuous opposition to the prevalence of historical hegemonisms in the seas. This paper attempts at offering an account of the expansion of coastal state jurisdiction by differing from the traditional narrative which emphasizes the subversive and disruptive nature of coastal states’ jurisdictional assertions prior and during the III United National Conference on the Law of the Sea (UNCfLOS). Traditional scholarship often alarmed against “territorialism” and the “enclosure of the oceans”, while shielding the sacred principled of freedom of the seas. To traditionalists, assertions by coastal states seeking to extend jurisdiction beyond the usual three nautical miles (nm) amounted to “creeping jurisdiction”, a nefarious practice seen as powerful enough to undermine the international rule of law for the seas. In this context, Brazil has attracted plenty of criticism for its prominent role in thrusting coastal state’s authority seaward. This paper advances the argument that were it not for creeping jurisdiction before, and sometimes after, UNCLOS, the international community would still collude with a regime of “spoliative jurisdiction”, a practice as old as international law’s colonial origins.

Suing Foreign States Before U.S. Courts: Non-Recognition of State Immunity as a Response to Internationally Wrongful Acts

The lawsuits that the survivors and families of the victims of the 9/11 terrorist attacks filed against Saudi Arabia and other foreign defendants have brought to the fore a controversial issue: whether the international law of state immunity can be infringed to ensure accountability for the most serious assaults on fundamental values of the international community. This paper focuses on this and other cases of denial of foreign state immunity before U.S. courts and purports to investigate whether the assertion of jurisdiction in these instances can be considered a justified response to prior internationally wrongful acts. The first part of the paper examines a number of U.S. judgments denying state immunity pursuant to certain exceptions under the Foreign Sovereign Immunities Act: the Anti-Terrorism and Effective Death Penalty Act, the ‘international taking’ exception, the territorial tort exception, implied waiver, and the Justice Against Sponsors of Terrorism Act. This analysis concludes that the assertion of jurisdiction in these cases cannot be considered lawful in the light of the existing rules of state immunity under international law. The paper highlights however that these cases are premised on the existence of prior wrongful acts on part of the state whose immunity is denied. The second part assesses whether these prima facie unlawful assertions of jurisdiction can be justified as countermeasures under the international law of state responsibility. By distinguishing according to the organs that participate in the adoption of these potential countermeasures, three categories are identified: executive, judicial, and mixed countermeasures. Following some considerations on the compatibility of the rules of state immunity with the countermeasure mechanism, the paper shows that neither the law of state immunity nor the law of state responsibility contain any limitation in this respect. Finally, this paper evaluates how domestic courts can comply with the procedural and substantive requirements for the adoption of lawful countermeasures in the form of non-recognition of sate immunity. It concludes with some reflection on the prospective legality of the Justice Against Sponsors of Terrorism Act (JASTA).

The Evolution of Global Legal Pluralism

Global legal pluralism is now recognized as an entrenched reality of the international and transnational legal order. Indeed, wherever one looks, there is conflict among multiple legal regimes. Some of these regimes are state-based, some are built and maintained by non-state actors, some fall within the purview of local authorities and jurisdictional entities, and some involve international courts, tribunals, arbitral bodies, and regulatory organizations. It has now been approximately 20 years since scholars first began pushing the insights of legal pluralism into the transnational and international arena. During those two decades, a rich body of work has established pluralism as a useful descriptive and normative framework for understanding a world of overlapping jurisdictional assertions, both state and non-state. Indeed, there has been a veritable explosion of scholarly work on legal pluralism, soft law, global constitutionalism, the relationships among relative authorities, and the fragmentation and reinforcement of territorial boundaries. Thus, the time has come for a survey and analysis of this literature in order to understand the evolution of global legal pluralism as a scholarly trope. In this chapter, I seek to begin such a task by separating out some of the descriptive and normative strands in the scholarly discourse. In addition, I tackle challenges and criticisms of global legal pluralism and aim to refine the field based on recent research. The result, I hope, will be to re-energize and engage global legal pluralism scholarship and push its trajectory forward into another two decades of innovation.

U.S. Supreme Court Amicus Brief of Civil Procedure Professors in Support of Respondents, Bristol-Myers Squibb Company v. California, No. 16-466

Petitioner Bristol-Myers Squibb argues that specific personal jurisdiction “exists only where the defendant’s contacts with the forum caused the plaintiff’s alleged injuries and the resulting suit.” Pet. Br. 17 (emphasis added). This has never been the law. While general jurisdiction may be amenable to narrowly defined categories, specific jurisdiction is not. Ever since this Court’s pathmarking decision in International Shoe Co. v. Washington, specific jurisdiction has been a far more flexible inquiry into the relationship among the forum, the defendant, and the dispute. This is as it should be. Requiring that specific jurisdiction rest on a strict causal link between the defendant’s forum-state contacts and the plaintiff’s claims provides no new benefits. Yet it would create uncertainty, risk destabilizing the system of litigation in both state and federal courts, and cast doubt on several of this Court’s earlier personal jurisdiction decisions. The current law, as established by this Court, is well calibrated both to ensure an appropriate forum for lawsuits and to prevent unfairness to defendants. To affirm the decision of the California Supreme Court in this case, the Court need only hold that Petitioner has purposefully availed itself of the privilege of conducting activities in California (which no one disputes), Respondents’ claims relate to Petitioner’s California contacts (which is barely, if at all, disputed), and California’s assertion of jurisdiction is reasonable (which Petitioner has effectively conceded (Pet. App. 35a)). No more need be said. The purpose of this brief is to explain why Petitioner’s proposed causation rule is a historical, inconsistent with the principles of personal jurisdiction, potentially destabilizing, and unnecessary to protect defendants from abusive exercises of state power. In short, this Court should decline to adopt petitioner’s proposal and should leave the law on specific jurisdiction unchanged for three reasons. First, this Court has never relied on a causation requirement to endorse — or reject — a state’s exercise of personal jurisdiction over a defendant. In fact, for this Court to do so would be inconsistent with a number of cases in which this Court found — or all involved assumed — that there was personal jurisdiction over claims against the defendant that were not caused by its forum-state contacts. Second, changing course now by adopting a causation requirement would lead to disruptive, inefficient, and unfair results — in both simple and complex litigation, and in both state and federal courts. A new causation test would throw into doubt even chestnuts of the first-year jurisdictional curriculum, like World-Wide Volkswagen v. Woodson. And it could wreak havoc with the way courts resolve our most complicated and economically important disputes, like the extensive litigation arising out of the ongoing Volkswagen “Clean Diesel” scandal. Third, it is unnecessary to take that risk in order to protect defendants from litigating in an unfair forum. Indeed, in this case, Petitioner has not even argued that California is an unfair place to litigate. To the extent that Petitioner’s concern is being haled into an inconvenient or distant forum, those concerns are already addressed in this Court’s requirement that any exercise of personal jurisdiction be reasonable. And in cases where another court is manifestly more appropriate, defendants may move to transfer the case or dismiss on forum non conveniens grounds. To the extent that Petitioner’s concerns relate to the law a court applies, such concerns are covered by each state’s choice-of-law rules and the constitutional restrictions on those rules. To the extent that Petitioner’s concerns relate to a state’s hostility towards out-of-state corporations, such concerns are addressed by diversity jurisdiction. Remedies for any such bias are therefore best left to Congress in defining the right to remove and the subject-matter jurisdiction of the federal courts. Finally, to the extent that Petitioner’s concerns are that the cases are being litigated against it at all — as Petitioner candidly admitted before the Court of Appeal — those concerns are not covered by the Due Process Clause.

Writing, Space and Authority: Producing and Critiquing Settler Jurisdiction in Western Australia

ABSTRACTOn the edge of Stirling Gardens in central Perth, Western Australia, five large, old-fashioned pen nibs stand in a curved line, their tips in the ground. Anne Neil’s sculpture, Memory Markers, commemorates the history of this site, which includes the Supreme Court. Taking this sculpture as an emblem of writing, which in the context of its setting highlights the relationship between literature and law, this article explores the image of the pen in the ground. As a symbol of literacy, it evokes the powerful network of discourses—particularly law, science and religion—that underwrote the imperial project. It signals, in Michele Grossman’s terms, “the event of literacy [that] radically interrupts and disrupts—but never eliminates—pre-existing Aboriginal epistemologies”. The article goes on to explore the sculpture as a symbol of the assertion of jurisdiction, the speaking of law in and over colonised space. It analyses a group of written texts associated with this site, from colonial legal assertions of jurisdiction over Aboriginal people in Edward Landor’s The Bushman (1847), through a proclamation under the Aborigines Act 1905 (WA), to Stephen Kinnane’s Indigenous family memoir of life under that act, Shadow Lines (2004).