The March 2021 decision of Ford Motor Co. v. Montana Eighth Judicial District1 completes the triangulation of specific personal jurisdiction under the U.S. Constitution.2 Combined with the Court’s recent narrowing of general jurisdiction and longstanding adherence to tag and consent-based jurisdiction, personal jurisdiction in the United States is beginning to exhibit contours that are more defined and concrete.3 What does this state of personal jurisdiction mean for future developments? And how does it compare to the way other countries have structured personal jurisdiction? This Article offers answers to those questions.
Category: Volume 51
In this Article, I aim to sketch out the claim that the Roberts Court quietly—and perhaps not entirely intentionally—is pushing 28 U.S.C. § 1331 federal question subject matter jurisdiction doctrine toward a more rights-inclusive approach that fosters a greater doctrinal focus upon congressional intent. I have noted this movement toward more focus upon congressional intent in prior work in the context of one Roberts Court case, Mims v. Arrow Financial Services, LLC. In this Article, I point to a similar shift in five other cases: Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, Gunn v. Minton, Arbaugh v. Y&H Corp., and Empire Healthchoice Assurance, Inc. v. McVeigh. I consider this move, even if modest, a positive outcome and one that, perhaps, points to legal process school underpinnings for the Roberts Court’s procedural rulings.
Visitors of the Neue Galerie in New York have been able to view the famous, gold portrait of Adele Bloch-Bauer by Gustav Klimt since 2006. However, the portrait was not always housed there. Nazis stole the painting following the Anschluss and showcased it in the Vienna Austrian Gallery. Nearly a century would pass before the painting was returned to its rightful owner. Unfortunately, the Klimt painting represents a minority of returned artworks, with a majority of pieces remaining separated from their original owners or their heirs. Such pieces are often subject to considerable controversy and numerous lawsuits. Notable examples of controversial art pieces include the jewels of the Russian Imperial collection showcased in the National Gallery, Madame Cezanne in the Conservatory showcased in the Metropolitan Museum of Art (“the Met”), and The Night Café showcased at Yale University (“Yale”). Like Adele Bloch-Bauer, these art pieces were taken during a time of conflict and political turmoil. In 1917, the Bolshevik regime confiscated much of the Russian Empire’s private art collections, including the jewels of the Russian Imperial collection, Madame Cezanne in the Conservatory, and The Night Café. While the United States has returned multiple Nazi-looted artworks, like the Adele Bloch-Bauer portrait, the United States has yet to return any Bolshevik-looted art to its rightful heirs.
In 2016, Florida became home to the first publicly reported fatality in the U.S. from a Tesla vehicle operating in autopilot mode. In 2018, 2019, and 2021 three other fatal crashes were reported involving Tesla’s autopilot features. Families of the victims in the 2018 California incident and the 2019 Florida incident filed suit against Tesla. Although the U.S. legal system often holds wrongdoers responsible for such damages, contract law allows consenting parties to limit the liability of otherwise responsible parties. Tesla, the number one manufacturer of semi-autonomous vehicles, does exactly that by conditioning the purchase of a Tesla vehicle on a contractual clause that limits its liability for damages associated with the vehicle. Because Tesla’s limitation of liability clause likely contravenes Florida’s public policy, this Article shows that semi-autonomous vehicle manufacturers may struggle to enforce limitation of liability contracts in relation to their vehicles, even though such contracts may be upheld in other jurisdictions.
Florida’s Constitution is often amended through various procedures, most of which need reform. Of particular concern is Florida’s “citizen” initiative process under Article XI, where citizens and special interest organizations are able to directly propose constitutional amendments with limited safeguards. This Article outlines the process for amending Florida’s Constitution through the initiative process, describes some of the problems with the current system, and discusses a few proposed reforms.
Lawyers generally have no trouble identifying their clients or understanding the nature of their representations. But that is not always the case. In some instances, an attorney-client relationship may be implied or inferred from the parties’ conduct. In other cases, a lawyer may acknowledge an attorney-client relationship with someone—for instance, an employee of an organizational client—but believe that the scope of the representation is limited in a fashion that exempts the lawyer from certain duties that the lawyer might otherwise owe the individual client. Yet, depending on the facts, there is no assurance that the lawyer’s belief is justified. Plus, even within the confines of a limited scope representation, the lawyer still owes the client critical duties.
Lawyers who fail to appreciate that they are a party to an implied attorney-client relationship, or who do not understand the scope of a client’s representation or their duties within that scope, tempt professional trouble. No case illustrates these situations better than the Pennsylvania Supreme Court’s 2020 decision in Office of Disciplinary Counsel v. Baldwin. Baldwin is an outgrowth of the largest scandal in the history of college sports: former Penn State assistant football coach Jerry Sandusky’s molestation of numerous boys from his youth charity. Sandusky was convicted of multiple crimes and received a long prison sentence, but the consequences of the scandal stretched well beyond his conviction. Among those consequences was the professional discipline of Penn State’s distinguished former general counsel, Cynthia Baldwin, an accomplished lawyer and Pennsylvania Supreme Court Justice prior to becoming Penn State’s general counsel. Baldwin was not the sort of lawyer anyone would expect to stumble over settled professional responsibility principles but stumble she unfortunately did. Baldwin’s tragically confused performance as Penn State’s general counsel and as personal counsel for three senior Penn State administrators amidst the Sandusky scandal has emerged from Happy Valley as a cautionary tale for lawyers.
With the growth of smart home technology comes extraordinary opportunities for data collection and a newfound tool for law enforcement investigations. But recent cases raise serious questions about privacy rights in the smart home. This Article examines evolving Fourth Amendment jurisprudence and the framework for assessing privacy and smart home technology. The narrow ruling of Carpenter v. United States is applied, and an expectation of privacy and the third-party doctrine are evaluated, calling for further reconsideration of the doctrine. Smart home data should be afforded Fourth Amendment protection, requiring a warrant to access such data from third-party providers.
This Article sheds light on the Federal Reserve’s actions during the COVID-19 financial crisis and its subsequent lack of accountability to the public. Congress reformed Section 13(3) in the Dodd-Frank Act, restricting emergency fund lending to broad-based eligibility programs. Such broad-based eligibility programs became relevant during the COVID-19 financial crisis. On March 23, 2020, the Federal Reserve declared unlimited quantitative easing and two unique corporate credit facilities designed to purchase private credit on the open market. The Federal Reserve now holds the corporate credit of Berkshire Hathaway, Apple, Walmart, and other big businesses as a consequence of Dodd-Frank’s changes to Section 13(3). Currently, the Federal Reserve is acting as a market-maker-of-all-resorts rather than its rightful role of lender-of-last-resort and will continue to do so until Congress intervenes. This Article examines Dodd Frank’s failure to reform Section 13(3) and the Federal Reserve’s resulting inequitable support of publicly traded companies. It also proposes Section 13(3) remedies for Congress to pursue. Particularly, this Article suggests that Congress legislate automatic stabilizer metrics within which the Federal Reserve could operate, explicitly forbid the Federal Reserve from directly purchasing private credit, and end the broad based eligibility program requirement to ensure that the Federal Reserve abandon its ad hoc role as market-maker-of-all-resorts.
COVID-19 left an unprecedented wake of destruction; one that hit America’s most vulnerable long-term care dwelling elders the hardest. However, the disaster in long-term care facilities could have been prevented—the pandemic exploited the many problems that the industry had been ignoring for years. As the famous Mike Tyson once said: “[e]verybody has a plan until they get punched in the mouth.”
Unfortunately, the long-term care industry faces a crisis that is far from over. Policymakers have their work cut out for them because the path to a well-functioning industry will take significant time and investment. In the current state, elders with end-of-life health conditions spend their final days in facilities that provide them little more than the bare minimum of care needed to keep them alive. Despite contrary belief that more funding is the only answer, the industry can utilize a patient centered approach to improve and create a creative, cost-efficient, and decentralized system that makes the elder feel more at home than they would at a hospital.