Author: Jaya Ramji-Nogales

1

Calder and World-Wide and Shoe, Oh My!

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If, like me, you are teaching the jurisdictional portion of Civil Procedure this semester, and if, like me, your students are eager for cases that relate to the age of the internet (for me, the second most popular request after “more hypotheticals”), here’s some candy for you: Dudnikov v. Chalk & Vermilion Fine Arts. In a clearly-written opinion, the 10th Circuit applies all of our old friends, from International Shoe to World-Wide Volkswagen, from Burger King to Calder (even a mention of Keeton!) to an eBay dispute.

So here’s what happens: Ms. Dudnikov and her husband run a “small and unincorporated” business selling fabric on eBay from their home in Colorado; their Colorado location is clear from their eBay auction page. One type of fabric uses a design by Erte, a 20th century artist, but replaces the elegant character in the design with Betty Boop and her dog, Pudgy. Chalk & Vermilion (a Delaware corporation with its principal place of business in Connecticut) is the American agent of a British corporation that owns the copyright to Erte’s works. Chalk decides that this fabric infringes their copyright, and instead of playing nice and sending Dudnikov a cease and desist letter, it files a “notice of claimed infringement” or NOCI with eBay (in California), which terminates the fabric auction and puts a “black mark” on Dudnikov’s eBay record (which until now has enjoyed a 99.9% satisfaction rating). Dudnikov offers to remove the offending fabric if Chalk pulls the NOCI; Chalk refuses and notifies Dudnikov that it plans to file suit in federal court with in 10 days to prevent the fabric auction from being reinstated. Not so fast — in the meantime, Dudnikov and her husband file suit against Chalk and its British counterpart in Colorado federal court, seeking a declaratory judgment and an injunction against interference with future fabric sales. You can see where this is all going — defendants enter a special appearance and move to dismiss for lack of personal jurisdiction. And that’s where the fun begins! Plenty of good times to go around.

20

The Perils of Universal Jurisdiction

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While generally a supporter of the concept of universal jurisdiction for trying grave international crimes (i.e. war crimes, crimes against humanity, and genocide), Spain’s recent indictment of 40 Rwandan army officers on international criminal charges raises interesting questions about the appropriateness of trying such cases in the domestic courts of nations with little connection to the conflict from which these crimes arose. As an internationalist, it’s hard for me to argue with the idea that the crime of genocide, war crimes, and crimes against humanity are so serious that its perpetrators are hostii humani generis — enemies of all humankind — and have thereby opened themselves up to prosecution wherever they may be found. But the practical implications of this Spanish case test the boundaries of this principle in ways that should be of concern to even the most die-hard advocate of universal jurisdiction. 180px-Rw-map.jpg

First, the moral authority question. The charged Rwandans were not responsible for the 1994 Rwandan genocide (Hutus killing Tutsis), but for acts by Tutsi-led rebels who defeated the Hutu extremists responsible for the genocide. Certainly, these soldiers should be held responsible for violations of international criminal law in their efforts to end the overwhelming violence perpetrated in Rwanda — but where was the Spanish army when the Hutus were slaughtering hundreds of thousands of Tutsis? Given the woeful failure of the international community to step in, it seems a bit rich to now be indicting the Tutsis who were left to their own defenses.

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2

Using Immigration Law to Prosecute Terrorism Charges: Double Jeopardy or Fair Play?

875413_balance.jpgThe case of Lyglenson Lemorin, a lawful permanent resident from Haiti facing terrorism charges in immigration court, raises interesting questions about the use of immigration law to prosecute terrorism cases. This phenomenon, known less-than-affectionately as “Crimmigration“, has been used to remove (aka deport) immigrants convicted of a variety of crimes after they have served prison time. But in what one immigration official calls the first case of its kind, Mr. Lemorin was acquitted of terrorism charges by a federal jury in Miami in December, yet faces nearly identical “material support” conspiracy offenses in immigration court this week.

Of course, the standard of proof for criminal charges in federal court is beyond a reasonable doubt — but not in immigration court; rather, the government must meet only the clear and convincing evidence standard in establishing that Lemorin conspired to engage in terrorist activity. In addition, he loses not only constitutional protections awarded to criminal suspects as well as the protections of the Federal Rules of Criminal Procedure, but the Federal Rules of Civil Procedure and the Federal Rules of Evidence don’t even apply in immigration court. One might say that the cards are stacked in favor of the government. Instead of a jury, Mr. Lemorin will be tried by an immigration judge, the perils of which are outlined in my recent article “Refugee Roulette.”

This particular case — lodged against a lawful permanent resident, a married father of two whose family now struggles to support itself — has drawn criticism not only from immigrants’ rights lawyers but also from Prof. David Martin, the former general counsel of the administrative agency formerly known as INS (now the Department of Homeland Security). Martin sees potential unfairness in the authorities’ ability to essentially try Lemorin twice for the same crime. But some might say that, like using tax laws to prosecute the Mafia, the immigration laws are fair game for ferreting out potential terrorists — after all, all’s fair in love and war. Isn’t it?

4

For Whom Would the Undocumented Vote?

A big thank-you to Dave Hoffman and the Concurring Opinions bloggers for inviting me for a guest stint. I’m looking forward to being a regular contributor for the next month, and to the feedback from blog readers! Unlike Paul, I have decided to blog today in one of my areas of substantive interest — immigration — but promise to be more adventurous next time! Now on to the substance:

illegal%20immigrant%20sign,jpg.jpgDuring the longest primary season on record, we’ve had plenty of opportunities to learn of the voting preferences of American women (favored Obama in Iowa but Clinton in New Hampshire), African-Americans (turned out in record numbers for Obama in South Carolina), Latinos (favored Clinton in Florida and Nevada), independent voters (inclined towards Obama and McCain), and even the under-30 vote (generally favor Obama). But the pollsters have not explored the presidential preferences of a harder-to-locate group, estimated at 12 million individuals, who live and work among us — undocumented immigrants. Of course, the undocumented can’t vote, so it’s no surprise that the campaigns and polling organizations have not expended their resources to investigate the preferences of this group. But I posit that if we take Rawls’ Theory of Justice seriously, particularly the notion that society should be structured so as to balance social and economic inequalities such that they provide the greatest benefit to the least-advantaged members of society, we might want to think about the opinions that the undocumented might express in this political process. Moreover, the rallies and marches in response to immigration reform proposals last spring suggest that the undocumented population has some political voice of its own, and that at least some documented immigrants may represent this voice.

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