UM Law School Mourns Loss of Professor George Cochran

Services set for Friday at Waller Funeral Hom

General Personal Jurisdiction After Goodyear Dunlop Tires Operations, S.A. v. Brown

This is the published version

Habeas Corpus Review of State Trial Court Failure to Give Lesser Included Offense Instructions

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II then proposes a standard of review that protects this federal interest while at the same time maintaining federal-state comity by invalidating only those state failures to give lesser included offense instructions that are the result of state policies unrelated or antagonistic to the goal of furthering the reliability of the fact-finding function of juries

The Stealth Revolution in Personal Jurisdiction

Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law. This Article argues that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent. By claiming to rely on precedent, the Court avoids the need to offer a clear rule of decision, fails to explain the policies that motivate its changing approach to personal jurisdiction, and fosters a narrative of lower court lawlessness that both devalues the work of the lower courts and erodes public confidence in the judiciary. This Article urges the Court to acknowledge that it is reforming the law of personal jurisdiction, to provide reasons for its new restrictions on the power of courts that are grounded on constitutional principle and sound policy, and to construct a narrative that relates its programmatic reform of personal jurisdiction to the history and purpose of the Due Process Clause or to some other appropriate constitutional authority

The New Sister-State Sovereign Immunity

The Article reviews the constitutional status of sister-state sovereign immunity. It argues that the parity requirement announced in Franchise Tax Board v. Hyatt (2016) is a temporary compromise that is supported by neither the purposes of the Full Faith and Credit Clause nor by cases cited by the Court. It further argues that parity is bad policy because parity overprotects states for acts they commit beyond their borders and under protects the interests of forum states in regulating conduct within their territorial jurisdiction. But the Article breaks from most scholarship. It suggests that the Court went too far in Nevada v. Hall (1979) in finding that nothing in the Constitution compels states to respect sister-state claims to sovereign immunity. But it does not endorse those critics who find absolute state immunity in policies of federalism. Instead it proposes a limited constitutional basis for sister-state immunity that grounds this immunity in territorial restrictions on judicial power that operated during the founding era. Under the proposed approach, states would enjoy sovereign immunity in a sister-state court—but only for acts they or their agents commit in their own territory. The Article explains how this limited immunity accommodates the competing interests of the states, and why it is superior to alternative proposals to ground sister-state immunity in international law