Matter Jurisdiction Research Articles

Inherent Power of the Arbitral Tribunal to Investigate Its Own Jurisdiction

Under most leading arbitral institutions' rules and national laws, the arbitral tribunal has the power to raise, investigate and decide on jurisdictional matters sua sponte. This power can be properly exercised, particularly in cases involving issues of arbitrability or public policy and in respondent-default proceedings. When exercising this power, the arbitral tribunal must treat both parties equally and avoid violations of their procedural rights throughout the process of investigating jurisdictional matters.

CJEU – Pammer and Alpenhof – Grand Chamber 7 December 2010, joined cases 585/08 and 144/09, not yet published.

Scope of application of the special protective rules for consumer contracts in the Brussels I Regulation (on jurisdiction in civil and commercial matters). Link with the comparable provision of the Rome I Regulation (on the law applicable to contractual obligations). Trader ‘directing’ his activities to the Member State of domicile of the consumer: Criteria to be used in case of distance booking facilitated by a website. The exception for contracts of transport: Relevance of the concept of ‘package travel’ used in Directive 90/314.

Legal Ethics No Paradigm for Educational Administrators

Shifting Conceptions of the Ethical For most of the past two millennia, it was commonly understood that there is no important distinction to be made between and Even as recently as 30 years ago, university catalogs were likely to list courses as either ethics or morals. Regardless, in each case the content descriptors were identical. Conceptually, this lack of distinction makes sense since and morals are each simply sentences that prescribe or prohibit action. Moreover, even the law is not meaningfully separate from morality since it represents that set of rules for social engagement that those who hold the sovereignty of state wish to endorse and enforce (Kierstead & Wagner, 1992). Today in certain sectors of the professional world some of these traditional understandings are undergoing considerable change. The discussion that follows will focus on two professions in particular, education and the law. There are three reasons for singling out these two professions. First, each is one of the four historic professions. The four historic professions, teaching, lawyering, doctoring, and preaching, have been ubiquitous across several millennia and across geographic barriers. Together the historic professions serve as models for other occupational groups intent on professionalizing their organizations (Abbot, 1994; Freidson, 1988; Macdonald, 1995). Second, the relationship between the law and education has become increasingly intimate both because of the rise of civil litigation generally and because of the increase in disruptive legislation bringing state and federal authorities ever closer to micro-managing school districts (Heubert, 1977). Third, to the extent that educational administrators begin to mirror changes of attorneys in the practice of law, the more educational administrators may drift from their authoritative and traditional moral vision. A Story of a Historical Profession: Lawyering The credibility of the legal profession is waning in the eyes of the public (Rosenholtz, 1991). Educational administrators have a duty to the profession they represent to do all they can to ensure that a similar fate does not befall the educational profession. To the extent that education leaders look to the legal profession for a model of professionalism, they risk devaluation in the public's eye. Educators have a moral vision distinctly separate from the legal profession. More than anything else it is the manifest commitment to the profession's traditional moral vision that preserves the profession's credibility in the public imagination (Wagner, 1993). Still the necessity for educational administrators to rely on legal advice increasingly makes modeling the value set of the legal profession a tempting distraction. Unavoidably, today's administrators increasingly find the need to refer to legal precedent and think somewhat like a lawyer when framing policy and managing the resulting dictates of policy. As alluded to above, the law has traditionally been considered a subset of public morality (Murphy & Nagel, 2002). Criminal law is an obvious example, but all law is shot through and through with moral commitments (both good and bad, as history illustrates). Consider the law of contracts: At its core it is essentially the law of promise-keeping (Ayres & Klass, 2005; Wagner & Simpson, 2009). Similarly, tax law is about the moral rightness of funding alleged public goods and in enlightened democracies includes some redistribution of wealth reflecting concerns for distributive justice. Finally, even the law of procedure and the law of evidence both address matters of jurisdiction, venue and admissibility of evidence respectively, each in an effort to secure some measure of social justice (Bayles, 1990; Ho, 2008; Stein, 2005). Admittedly, what the law is does not dictate how attorneys ought to manage their affairs as officers of the court. …

As súmulas vinculantes no Brasil e a necessidade de limites ao ativismo judicial

The author discusses that, from the strengthening of constitutional jurisdiction, Constituição/1988, new interpretive techniques will be allowed in order to expand operations in jurisdictional matters traditionally the purview of the Legislative and Executive.

Information & Communication Technology Law

A web address usually begins www. This prefix embodies an important concept; that Internet is a world wide application. It involves international protocols and conventions as well as state and national legislation. A Cyberlaw student needs to be aware of online jurisdiction rules that apply to local and cross border transactions. Lapses in choice of law and forum in contracting can land an e-commerce vendor in a foreign jurisdiction that may be outside of the shores of the India. The factors that are driving Internet applications include the expanding global communication networks, the expansion of global online markets, and the emerging of business models that provide access to the global market. Business strategies have evolved from the bricks and mortar retail establishments, and catalog outlets into electronic business transactions that run the full cycle from procurement of raw materials, to processing and distribution of manufactured goods, to order fulfillment systems and international payment processes via electronic funds transfer systems. In addition to the international sale of goods, there is a blossoming of electronic services that were previously only available through hard line links to service providers. Internet retailing, banking, and data exchange now flow over computer grids and satellite systems. Deals are closed not with a handshake, but with an exchange of private keys. Internal business communications are conducted over networks connecting company employees to homes and offices worldwide. Electronic mail, file transfer, image senders, video-conferencing and other workflow are accomplished between remote sites that need to be secure. Cyberspace is the complete value chain that links suppliers, producers, retailers, and customers. Companies that do not plan to enter the e-Commerce arena themselves, still have to deal with clients and customers whose only presence will be in the form of full-service electronic storefronts. These companies will have to adjust their strategic plan to include electronic media in their businesses. Understanding the novel legal issues that arise in relation to, the Internet, electronic commerce and on-line services, as well as the laws and jurisdictional matters that apply to e-commerce applications, will be the instrument of success in positioning a business in the electronic marketplace. Any enterprise that attracts as much traffic and value as does the electronic commerce enterprise, seldom survives in a Laissez-faire environment. This new economic reality is no different. Government intervention in this market exists on every level. From regulating the hours of a cyber-cafe to restrictions on access and content, to international protocol agreements; all levels of government are leaving an imprint on commercial matters in the electronic markets. In the legal market a new classification is emerging: the “Internet Attorney”. This practice area is a crossover specialization that integrates the traditional Intellectual Property practice subjects of Patent, Trademark and Copyright Law with the Litigation practice subjects of Domestic and International Business Law. This practice area incorporates all of the practical applications of doing business online. The legal and regulatory issues of the Internet Law practice area involve the migration of businesses to the electronic storefront, the protection of industrial property, transnational licensing, strategic partnering, of cross border transactions, and electronic financial services. Components of the practice also include consideration of issues of cyber-crime and privacy. In short, the practice of law has embraced the global electronic marketplace. The Cyberlaw program concentration in management of rights and obligations and emerging legal issues in cyberspace provides a new curriculum for training the Internet Attorney. This is a first course in Internet law. You’ll learn the essentials of computer and network technologies, and how those technologies are challenging settled legal understandings. The sources of Internet law are many, from intellectual property to tort to the First Amendment, but by the end of the course, you should be able to sort through the legal complexities in any given case to identify what’s really at stake. Throughout the semester, we’ll tie the doctrines together with four themes: How regulation changes when it’s carried out by computers, rather than by people. Whether going online increases or decreases government control. The new kinds of power possessed by online intermediaries. The extraordinary level of innovation and creativity the Internet has unleashed.

Fair Work Australia: An Accessible, Independent Umpire for Employment Matters

Fair Work Australia is a new industrial relations tribunal that comes with more than 100 years of history that has shaped its functions and substantive work. This article briefly plots the development of Fair Work Australia’s jurisdiction in respect of awards, bargaining and agreement making, the ‘alternative’ dispute resolution of rights-based disputes, termination of employment, industrial organizations, and appeals. It then analyses statistical data to reveal the changes that have occurred in the day-to-day work of Australia’s national industrial institution over time. The independence and accessibility of the tribunal are also considered. The article concludes that Fair Work Australia is well placed to deal with a more extensive jurisdiction in employment matters.

Jurisdiction in Complex Contracts under the Brussels I Regulation

A major innovation of the Brussels I Regulation was the introduction, in Article 5(1)(b), of two provisions dealing with jurisdiction in matters relating to sales and services contracts. These provisions were introduced with the aim of remedying the shortcomings of Article 5(1) of the Brussels Convention, as interpreted by the European Court of Justice (ECJ). This Article gave jurisdiction in contractual matters to the courts for the place of performance of the obligation in question. In De Bloos the ECJ held that the obligation in question was the obligation forming the basis of the claim. In Tessili the Court found that the place of performance of that obligation was to be determined by applying the law designated by the choice-of-law rules of the forum. The Brussels I Regulation has partially repealed the De Bloos/Tessili rules by providing an autonomous definition of the place of performance for sales and services contracts; this definition applies regardless of the obligation forming the basis of the claim. The allocation of jurisdiction in other contracts remains unaffected. Thus, Article 5(1) of the Regulation provides.

Jurisdictional Disputes and Intermediary Liability in Cyberspace

World Wide Web or internet is global information infrastructure which exists virtually with no physical or geographical existence whatsoever and affects all sections of society due to its significance in communication, information gathering, data storage, media, entertainment, etc. It is freely accessible with nominal monitoring by anyone anywhere in the world, and thus provides wide scope for internet crimes namely defamation, pornography, cyber stalking, etc with minimal traceability. The whole activity is done through transfer of packet data which is done through different service providers known as intermediaries like, search engines, chat rooms, service providers, etc. Thus, the jurisdictional issue arises due to the world wide accessibility of the internet and the misuse of the platform for redundant activities which brings the intermediaries into picture. Thus, in the proposed article the endeavor will be to look into the extent of intermediary liability and corresponding jurisdictional issues and conflicts. Under International law the sovereign exercises its authority under their jurisdiction, but the limitation arises when it’s against a foreign state involving objectionable activities on internet. Every state has its limitations and subsequently obligations to restraint itself from jurisdictional issues of foreign state to avoid any kind of unwarranted fortification. Hence, the attempt in this article is to find out various Jurisdictional issues in the International Cyber Space. This brings the question about the jurisdiction for adjudication of claims of injury or violation of domestic standards of a nation. Further, the paper deals with the pros and cons of the victim’s position for instance the most opportune forum; correct medium to enforce the decree or execution of the order etc. To realize the working of jurisdictional aspects, one ought to understand principles on which cyberspace standards can be appreciated. Hence, the paper deals with all the principles like Territoriality Principle, Nationality Principle, Effects Principle, Protective Principle, Universality Principle etc, to analyze the application in cyberspace. The paper further deals and examines intrinsically various advance moves taken by assorted courts to draw a logical conclusion in consideration with the subject matter of jurisdiction for instance general approach, specific approach, moderate approach, expansive approach etc. In the recent scenario we have seen the rapid growth of cyber crime at a massive rate be in terms of defamation, child pornography, fraud, forgery etc. prevalent in both criminal and civil context, when such offence occurs then an imperative concern crop up on the issues like the place to try such wrongdoer & intermediary liability. All these aspects will be duly covered so as to realize the jurisdictional values of different states and thereby making a comparative analysis of two different legislators focus in prosecution for a crime by one state against another in terms of jurisdictional law in the Indian context

Immunity of foreign States from jurisdiction in civil matters as a customary rule automatically incorporated into the Italian legal order by virtue of Article 10, paragraph 1, of the Italian Constitution – Compensation for victims of gross human rights violations committed during World War II – Human rights exception to immunity from jurisdiction – Tort exception to immunity from jurisdiction

Immunity of foreign States from jurisdiction in civil matters as a customary rule automatically incorporated into the Italian legal order by virtue of Article 10, paragraph 1, of the Italian Constitution – Compensation for victims of gross human rights violations committed during World War II – Human rights exception to immunity from jurisdiction – Tort exception to immunity from jurisdiction

Biobanks and the Return of Research Results: Out with the Old and in with the New?

This article examines the complex and contemporary issue of the return of research results in biobanks. After suggesting the exclusion of some adjacent issues usually flanking the debate, this article reviews the current practices of biobanks on the disclosure of research results to participants. It then focuses more specifically on the debate in the literature before turning to a review of the typology of recent reforms being put forward.

Regulatory Options for Controlling Tobacco Advertising, Promotion and Sponsorship Under Article 13 of the Who Framework Convention on Tobacco Control

This report examines regulatory options for controlling tobacco advertising, promotion and sponsorship under Article 13 of the WHO Framework Convention on Tobacco Control. The paper considers these options and issues concerning direct broadcast satellites, the types of protection offered under many laws to content hosts, content navigators and access providers, user-generated content, and jurisdiction and related matters. This suggests the general approach that could be taken to controlling tobacco advertising, promotion and sponsorship in all forms of media and communication could be: 1) To control all tobacco advertising, promotion and sponsorship that is domestic, including tobacco advertising, promotion and sponsorship that users of any media and communication platform can access within the territory of a Party wherever that content originated: - through content bans that would apply to content producers and content providers; and - through notice and obligation schemes that would apply to content hosts, content navigators and access providers. 2) To control all tobacco advertising, promotion and sponsorship with cross-border effects produced or made available by entities operating within the territory of Parties, where those entities act as content producers or providers: - through content bans that would apply to content producers and content providers.

Enforcement of Hudood Punishments Under Islamic Law in Nigeria: Implications for a Plural Legal System

A Borno State High Court case, Garba Mai Tangaran v. Abdullahi Mai Taxi, an appeal under section 272 of the 1999 Constitution from the judgement of the Upper Area Court No. 2, which judgement was delivered on the 28th of June 2002 is one case that has made a judicial pronouncement on the criminal jurisdiction of the Shari'a Court of Appeal of a State. The High Court held that the State House of Assembly cannot enact a law to confer appellate jurisdiction in criminal matters on the Shari'a Court of Appeal. Section 6(1) and (2) as well as section 8(1), (2) and (3) of the Borno State Shari'a (Administration of Justice Law) 2000 provide for the appellate jurisdiction of the Shari'a Court of Appeal of the State.The legislative competence of the State in enacting legislation in respect of the criminal aspects of shari'a is only one of the many issues that trail the Zamfara State 1999 initiative in reintroducing the hudood in Nigeria. The other areas are, (1) law of evidence, and (2) fundamental rights. Some commentators have claimed that because of these issues, the criminal aspects of shari'a cannot be enforced in a state with a plural legal system like Nigeria. This paper espouses a different opinion. It concludes that in spite of the misgivings, there are no apparent contradictions in the existence of a plurality of laws within a single jurisdiction and that hudood is enforceable in Nigeria.However, the paper observes that there are several issues that need to be tackled in order to ensure that the fundamental rights of convicts, who are now awaiting the ratification of their Hadd convictions by State Governors, are not unwittingly abused.

Cross-Border Services, Posting of Workers, and Jurisdictional Alternation

Posting of workers in the framework of cross-border provision of services involves issues of private international law concerning the choice of applicable law as well as matters of jurisdiction. A lack of harmonization or coordination may lead to competing and conflicting litigations that are ill suited to safeguard workers' rights or protect the interests of businesses or social partners. Drawing on a Danish-Polish case these points are sharply illustrated in the present essay. The case in point did not directly involve the EC Posted Workers Directive as it concerned claims based on collective agreement outside of the scope of the Directive. It is argued, however, that even if the Directive may be considered to imply certain measures and safeguards there still is a need to amend the Directive so as to ensure the protection it is intended to provide.

The political economy of regulation: Does it have any lessons for accounting research?

The paper argues that regulation is at the heart of markets, and that regulation is itself an inherently political process. It explores how this insight works out by examining a range of real existing national regulatory systems ‐ notably the US, the UK and the European Union. It argues that political jurisdiction matters, because of the influence of institutional structure, political culture and historical trajectory. It suggests that these insights need to be central to accounting research, because at the heart of accounting research lie processes which are critical to the regulation of economic life.

Perlaksanaan Perundangan Islam di Malaysia: Satu Penilaian

This article elaborates the implementation of Islamic law in Malaysia. It includes, inter alia, the British influence in the administration of Islamic law during colonial period, the status and jurisdiction of Shariah Courts before and after Malaysia achieved independence. The article also examines the codification of Islamic Law and the interpretation to article 121 (1A) of the Federal Constitution by the Civil Courts as to whether the Syariah Courts have exclusive jurisdiction in matters which the Shariah Courts have jurisdiction. It also deals with the issue of conversion and which court has jurisdiction on this matter. The objective of the article is to show that Islamic Law was the law of the land since the Malay Sultanate ruled Malacca. The British interference in the administration of Islamic justice has reduced its application to only personal matters. The position of Shariah Courts after the Court Ordinance 1948 came with effect. The purpose of article 121 (1A) of the Federal Constitution is to avoid conflict of jurisdiction between Civil Courts and Syariah Courts. The role of Shariah and Civil laws Technical Committee in drafting new laws for the Shariah Courts. From the overview of the development of Islamic Law in Malaysia there are other areas which need reforms. In the concluding part several recommendations were suggested for consideration.

Rabbinical Chancery in Romania - An Alternative to the State Organized Courts in Solving Family Matters?

On August 27, 2008, by Government Decree no. 999, the Romanian Government recognized the Statute of the Federation of Jewish Communities of Romania-The Mosaic Cult. According to Article 41 of the statute, the Rabbinical Chancery is a body of the Federation entrusted with the fulfillment of the religious needs of the members of the Federation, observing “the rules of the Mosaic law, halaha [i.e. halakhah] and the Mosaic tradition”. Article 41 enumerating the competences of the Rabbinical Chancery, provides under letter h that the Chancery has jurisdiction over “the religious disputes inside Communities”. But in Judaism, because Torah is the blueprint of the entire universe, every aspect of human life is a religious one. As a proof of this fact we can invoke the extraordinarily rich content of the Talmud (the Mishnah with its six orders and Gemarah, 517 chapters in total). The third order of the Talmud deals mainly with laws concerning marriage, the relationship between spouses and divorce. So, disputes concerning marriages concluded between members of the Federation (whether from the same Community or not) are religious disputes, that should be solved by the Rabbinical Chancery. My paper discusses the legal status in Romania of decisions and writs (especially the kind of writs named get) delivered or drawn up by the Rabbinical Chancery in solving the matrimonial disputes of the members of the Federation of Jewish Communities of Romania - The Mosaic Cult. On the one hand, these documents could be recognized as having binding effect on the Romanian authorities on the grounds of Articles 7, 8, 9 and 26 of Law no.489 of 2006 on the Freedom of Religion and the General Status of Denominations. On the other hand, there is no hard evidence that Romanian Government intended to allow religious courts to rule in litigation concerning such sensible areas as Family Law or Civil Law. On the contrary, Article 5 of Law no.489 of 2006 emphasizes that all religious cults have to observe the Constitution and the others Romanian laws. Or neither Article 124 and 126 of the Constitution nor Articles 3 or 38 of the Romanian Family Code recognize the jurisdiction of a religious authority in concluding or dissolving a matrimonial liaison. Moreover, only the Mosaic Cult and the Catholic Church have in their statutes provisions that enables a religious body to have jurisdiction over laity (while the statutes of the Orthodox Church or the Muslim cult don’t contain such provisions). Article 9 of Law no.489 of 2006 provides for the equality of all religious cults before the Romanian authorities. Or Article 41 of Statute of the Federation of Jewish Communities of Romania - The Mosaic Cult infringes upon this equality, allowing Jews of Romanian nationality to solve their matrimonial causes before a religious court with the observance of other rules than those provided for by the Romanian Family Law. The status of the Rabbinical Chancery as a court of justice with jurisdiction in family matters is not sound enough according to the present Romanian Law. Romanian authorities have to confirm it or to explicitly reject it (by demanding the modification of Article 41 of the Statute of the Federation of Jewish Communities of Romania - The Mosaic Cult).

Roman-Dutch law Meets the Common law on Jurisdiction in International Matters

An intriguing aspect of South Africa's Roman-Dutch jurisdictional rules is that a foreign defendant can be arrested for the purpose of assuming jurisdiction over him in a claim sounding in money. This rule, unknown to the common law, also exists in other Southern African countries and has been criticised. The rule was abolished by a recent decision of the South African Supreme Court of Appeal. The court also accepted mere presence within the jurisdiction as a basis of jurisdiction in international matters and suggested the defendant could contest whether South Africa was the forum conveniens. The former rule was unknown to Roman-Dutch law. The existence of the latter was disputed. But both are well entrenched in the common law. This paper examines the judgment and argues that it is a manifestation of a gradual movement of convergence between Roman-Dutch law and the common law.

Legal and regulatory challenges in the implementation of CO 2 geological storage: An Alberta and Canadian perspective

Alberta is the province with the largest CO 2 emissions in Canada, with approximately two-thirds of emissions originating from large stationary sources. Due to the fortuitous association of large CO 2 sources with the storage capacity offered by the underlying Alberta basin, it is expected that large-scale CO 2 geological storage in Canada will occur in Alberta first, and both levels of governments are contemplating measures to facilitate implementation. A review of the current provincial and federal legislation and regulations presented in this paper indicates that the existing legal and regulatory regime is reasonably sufficient, with some modifications, to accommodate the active injection phase of CO 2 capture and storage (CCS) operations, and the early takers of this new technology. However, governments in Alberta and Canada, and likely everywhere, need to address several pressing issues dealing mainly with the CCS post-operational phase. These issues, reviewed in this paper from an Alberta and Canadian perspective, fall into several categories: jurisdictional, property (ownership), regulatory and liability. Because Alberta is a landlocked province, matters relating to CO 2 storage under the seabed will not be addressed here except when discussing matters of jurisdiction and CO 2 classification. Possible models for post-injection liability transfer to the state are also presented. Although this review is focused on western Canada conditions, the issues are broad enough to be of interest in other jurisdictions, which may also adopt parts of the legal and regulatory framework that is quite well developed in Alberta.

Negotiating the Nation: The Reproduction and Reconstruction of the National Imaginary in Margaret Atwood’s Surfacing

[A]lthough in every culture many Stories are told, only some are told and retold, and ... these recurring Stories bear examining. Margaret Atwood, Strange Things What a society buries is at least as revealing as what it preserves. Margaret Atwood, Mathews and Misrepresentation IN A LECTURE DELIVERED AS PART OF THE CLARENDON LECTURE SERIES at Oxford University in spring of 1991, Margaret Atwood discusses building of national mythologies and prompts her listeners to re-examine a central Canadian emblem and their thoughts on Canadian national identity by provocatively questioning, You thought national flag was about a leaf, didn't you? Look harder. It's where someone got axed in snow (Strange Things 14). Through this simple semiological exercise, Atwood invites a radical shift in perception of Canada's collective consciousness and a re-evaluation of what she terms the great Canadian victim (Gibson 22) in order to reveal both capacity of Canadians to do harm to others and violence that exists unremarked at heart of Canadian signature. This renegotiation of national discourses is similarly demonstrated in Atwood's use of violent woman as a destabilizing figure who, through her brutality, points toward broader social trends and reconfigures centralized myths of Canadian identity. (1) Atwood's formulation of violent woman as an individual who reconceptualizes dominant national imaginary, or limited set of ideals and images that Canadians frequently draw on to construct and maintain their sense of national identity, (2) may prima facie appear an inconvenient and anomalous configuration. Yet Atwood, through this gesture, builds upon long-established cultural frameworks linking nation to gender and violence, not only insisting on enduring relevance of nationalism and national conceits but also need to see nation's genius as a construct in constant flux. Exemplifying such matters, frequently brutal narrator of Atwood's Surfacing (1972) uncovers how reputed vulnerability central to Canadian identity is open to interrogation and re-interpretation; despite her marginal status within society, violent woman is here depicted as a meaningful and revealing figure that forces a reconsideration of Canada's central mythologies. What emerges from this critical endeavour is not a reformed or corrective image of Canada's national identity, since no singular figure can possibly signify cultural heterogeneity existent within a country, but a recognition of need to look harder and to question those national narratives that Canadians hold timeless and of themselves. Contemporary critics and theorists of nationhood have endlessly struggled against inherent difficulties of thinking nationalistically, and Canadian scholars in particular at times contend with self-effacing possibility that very conceit they attempt to analyze and delimit may in fact not exist at all. (3) One of fundamental reasons for apprehensiveness surrounding discussions of nation and national identity is shifting conception of what constitutes nationhood; Philip Spencer and Howard Wollman find that criteria for deciding on what constitutes a nation are highly contested, involving complex issues relating to identity, culture, language, history, myth and memory, and disputed claims to territory (2), and Michael Ignatieff adds that There is only so much that can be said about nationalism in general. It is not one thing in many disguises, but many things in many disguises (9). Unlike a state, which concerns matters of governmental jurisdiction, and powers held by a polity over a defined geographic area, a nation refers to more abstract relations between people who envision themselves as connected through time, space, and an underlying set of values and principles, thereby highlighting complex and recondite systems of meaning that combine to create effect of national identity. …

Court Budgets and the Mootness Doctrine

In times of budget crises, the judiciary, like any government organization, may be subjected to dramatic reductions in operating budgets. Unlike funding for many other government organizations, however, funding for some court programs, such as defense of indigent criminal defendants, implicates important constitutional obliga tions. For example, a state decision to "defund" its public defender system obviously would create enormous Sixth Amendment difficulties. But what happens if a state defunds part of its public defender system, places selected defendants' trials on hold, is sued by these defendants?and then reinstates funding so as to allow the criminal trials to proceed? The answer, according to a recent Ninth Circuit Court of Appeals decision, is that the challenge to the defending is moot. In response to a severe economic downturn and rising state government budget deficits, the chief justice of Oregon in early 2003 issued a "Budget Reduction Plan" (BRP). This suspended criminal trials for some misdemeanors and all adult drug possession felonies in Oregon state courts until July 1, 2003, when the next fiscal biennium was to begin. The BRP's practical result was to shut down temporarily both criminal trials and access to public defenders for designated types of defendants from March through June 2003. As soon as Oregon trial judges implemented the BRP, they were subjected to lawsuits from a collection of public defenders, criminal defen dants, and even the Lane County district attorney. The plaintiffs alleged violations of the First and Sixth Amendments, the Fourteenth Amendment Due Process and Equal Protection Clauses, and the Oregon State Constitution and Oregon state statutes. After the Oregon State Supreme Court refused to invalidate the BRP, State ex rei Metropolitan Public Defender v. Courtney, 335 Or. 236, 64 P3d 1138 (2003), the plaintiffs brought suit in federal district court. By the time the suit had reached the U.S. District Court, June had passed, the chief justice had lifted the BRP, and funds were being provided for indigent defense. Consequently, the district court dismissed the plaintiffs' lawsuit as moot. Plaintiffs appealed to the Ninth Circuit Court of Appeals. In Foster v. Carson, 347 F.3d 742 (9th Cir. 2003), Judge Graber began by noting that as a matter of jurisdiction, feder al courts cannot hear moot cases, and "if there is no longer a possibility that an appel lant can obtain relief for his claim, the claim is moot." Id. at 745. The plaintiffs had not requested monetary damages, but had sought simply a declaratory judgment invalidating the BRP, as well as attorney fees. Inasmuch as the BRP already had been revoked, declaratory relief was not possible; as Judge Graber noted, "we cannot undo the past," id. at 746, and previous caselaw clearly established that an action for attor ney fees does not revive an otherwise moot action. Plaintiffs asked the court of appeals to invoke the "capable of repetition, yet evading review" exception to the mootness doctrine to reach the merits of the claim.