Emory Law Journal

Volume 60Issue 1

Impersonal Jurisdiction

Allan Erbsen | 60 Emory L.J. 1 (2010)

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism—the constitutional relationship between states—should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence. In particular, the Article questions two pillars of the Supreme Court’s jurisprudence. More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine.

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A Lack of Resolution

David Zaring | 60 Emory L.J. 97 (2010)

The failure to resolve—that is, impose a quick death penalty on—enormous financial intermediaries such as Lehman Brothers and AIG damaged the ability of the government to respond to the financial crisis. But expanding resolution authority to cover new systemically significant institutions—which is one of the lynchpins of financial regulatory reform—poses a problem of legitimacy with constitutional implications, as resolution authority is usually exercised with almost no predeprivation process and little postdeprivation compensation. At the same time, banking regulators have failed, every time they have been given more resolution authority, to exercise that authority when it is needed. This Article reassesses resolution authority. It proposes (1) domestic solutions to protect against government overreach and (2) an international context to deal with the problem of underreach.

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