What is &quot;look through&quot; analysis? For a federal court to hear a case it must have both subject matter jurisdiction and personal jurisdiction. Federal court retains subject matter jurisdiction via 1) federal question jurisdiction or 2) diversity jurisdiction. Federal question jurisdiction arises from 28 USC 1331 which provides that federal courts have jurisdiction to decide a case based on federal law or the constitution. According to this reply on SE: A federal court can compel arbitration under Section 4 of the FAA, however, if, on a look through basis, the underlying dispute were to give rise to federal question jurisdiction, even in the absence of diversity of citizenship. Vaden v. Discovery Bank, 556 U.S. 49 (2009). In these cases, there is no minimum amount in controversy and diversity of citizenship is not required. What is the definition of look through analysis? Does the federal court need to delve deeply into the arguments and counterarguments of both sides in order to determine whether there is actual merit to any of the claims? Or as long as on the surface the dispute seems to be of federal nature it is sufficient to create federal jurisdiction? In other words, is the look through analysis deep or shallow? Are there times when federal court might decline to exercise jurisdiction over a matter (to compel arbitration) because it believes that the case would have been dismissed summarily had the court been asked to rule on it? Or they have no right to delve into the merits of the arguments?
In Vaden v. Discover Bank, 556 U.S. 49 (2009), the Supreme Court held: A federal court may “look through” a §4 petition to determine whether it is predicated on a controversy that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in Holmes Group [535 U.S. 826], however, a federal court may not entertain a §4 petition based on the contents of a counterclaim when the whole controversy between the parties does not qualify for federal-court adjudication. Discover sued Vaden to recover a credit card debt in state court. Vaden filed a counter-claim challenging the charges under state usury laws. Discover filed a claim in federal court seeking to compel arbitration under 9 U.S.C. §4, which provides: A party aggrieved by the alleged failure … of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction … of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed … &quot;Look through&quot; analysis gives effect to the bolded words. A dispute about arbitrability itself is not sufficient to attract federal jurisdiction. But the petition does not need to be based on an existing claim in federal court, either – the court can &quot;look through&quot; the petition for a claim that would attract federal jurisdiction. Although Discover's debt recovery claim was based solely on state law, Discover asserted that the court would have had federal question jurisdiction because §27(a) of the Federal Deposit Insurance Act preempted the state laws supporting Vaden's counterclaim. The Supreme Court agreed that the district court should &quot;look through&quot; the §4 petition and consider the possible existence of federal jurisdiction, but reversed the court of appeals' finding that Discover's claim &quot;arose under&quot; federal law for the purposes of 28 U.S.C. §1331. The Supreme Court applied the &quot;well-pleaded complaint rule&quot; to Discover's §1331 claim, which required the court to focus on Discover's original (state law) claim, not its response to Vaden's counterclaim. To answer your question, &quot;look through&quot; analysis does not require the court to consider the &quot;merits&quot; of a federal claim before compelling arbitration. However, it is not sufficient that the dispute &quot;seems to be of federal nature&quot;; the court must conclude that (but for the arbitration agreement) it would have jurisdiction. The disagreement between the Supreme Court and the court of appeals in Vaden, which related to the scope of federal jurisdiction rather than the application of &quot;look through&quot; analysis, demonstrates that disputes about whether jurisdiction would have existed can become very complex. Thus, in general, a federal court should not decline to compel arbitration of a federal claim because &quot;the case would have been dismissed summarily had the court been asked to rule on it.&quot; However, the court must dismiss the petition if the federal claim is so insubstantial that federal jurisdiction is not attracted at all. As the Supreme Court held in Hagans v. Lavine, 415 U.S. 528 (1974): Over the years, this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are &quot;so attenuated and unsubstantial as to be absolutely devoid of merit,&quot; &quot;wholly insubstantial,&quot; &quot;obviously frivolous,&quot; &quot;plainly unsubstantial,&quot; or &quot;no longer open to discussion.&quot;
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.
It's supposed to be carte blanche, i.e. "blank check". The quotation has left out several words. You can find the full decision at https://supreme.justia.com/cases/federal/us/458/176/case.html. The complete sentence is: It thus seems that the dissent would give the courts carte blanche to impose upon the States whatever burden their various judgments indicate should be imposed.
Are there any underlying reasons behind the nonsensical structure of U.S.C. titles? Is it simply a case of "This is how it's been for awhile, don't fix what isn't broken." or is there more to it than that? First of all, the United States Code is generally not designed to be used by non-lawyers. Second, one of the main ways to research case law interpreting a statute is by doing a boolean search on the code section of that statute. Every time you change a title or section number, you impair the ability of people doing legal research (both judges and lawyers) to find previous case law interpreting the meaning of the statute. Third, you make it much harder to determine when the substance of the provision was originally enacted (e.g. if you want legislative history or to determine which of two conflicting statutory provisions was enacted first) since an annotated statute will often show when the current section was enacted but will not explain what it was derived from. Fourth, the location of a statute within the context of other statutory sections often informs its meaning. Machine gun may have one definition in two or three laws, and a different one in two or three other laws, and there may be yet other laws where machine gun is an undefined term. Moving a statutory section from one part of the code to another could influence the default definition that one uses for an undefined term changing substantive law. Fifth, usually a new codification will also involve some drafting standards, for example, to add gender neutrality or to avoid notoriously ambiguous constructions (like 250 word sentences). But, it isn't at all uncommon for very slight changes like the position of a comma or the formatting of a section with multiple indents, to result in a change of the likely meaning of a somewhat ambiguous statute and it is pretty much impossible to know a priori when a statutory section is ambiguous until you are confronted with a fact pattern that makes the ambiguity in that context clear. This isn't confined to obscure laws of little importance. For example, the question of whether Obamacare applied in states that hadn't set up their own exchanges hinged on these kinds of issues. None of this is to say that you should never recodify the statutes. But, a basically aesthetic motivation that mostly matters to people who make up a tiny portion of the main users of the product (non-lawyers) that poses multiple threats to how statutes will be located using legal research tools, and how it will be interpreted once located, means that reorganizing statutes is not something to be done lightly. In short, there are a lot of serious, substantive costs that can accompany a recodification of a law. As a result, re-codification is most often done only as part of an overall omnibus reform of an area of law on the merits where the interest in being able to track prior interpretive caselaw and determine the original meaning of a statute enacted long ago is at its lowest. Barring the even more ridiculous case of Congress repealing everything and passing the exact same laws again, just under different Titles/Chapters/etc, This is not so ridiculous. Most states have done exactly that one or two times in their history (sometimes more for older states). Also, many newly admitted to the union states also do something similar. For example, the basic template for the statutes in Colorado was the statutes of the state of Illinois. Basically, the first time around, somebody started with an Illinois statute book, eliminated Illinois specific laws and laws that they didn't like, rearranged them and adopted them as the original statutes of the State of Colorado (it may have actually been version 2.0 after a stopgap set of statutes, I don't recall which). Also, most states completely repeal and readopt all of their statutes in codified form on the recommendation of the codifier to a legislative committee, to reflect the acts passed in the previous session, every year. This doesn't involve overhauls really, but in principle is a complete repeal and reenactment. While the federal government has never overhauled the entire U.S. Code in this manner, it has been done at the level of individual titles of the U.S. Code. For example, the most recent major reorganization and overhaul of the structure of the Internal Revenue Code (Title 26) was in 1986. The copyright laws were overhauled in the late 1970s. Both of those accompanied major substantive changes in those areas of law. Another major recodification of many parts of the U.S. Code took place following 9-11 in connection with the creation of the Department of Homeland Security, which reorganized both the bureaucracy and the associated U.S. Code language associated with dozens of federal agencies. would it be possible for Congress to arbitrarily merge, combine, and delete Titles, and to rearrange the location of laws, definitions, etc? Are there laws/regulations governing this? Yes. Congress can do so any time it wants by passing a bill (it would be the longest bill ever - dozens of volumes long) doing so, and getting the President to sign it. The legislative process would be exactly the same as any other bill.
No they are not the same statement. Who has jurisdiction? Let's disentangle a few things: A jurisdiction is an entity that has sovereignty to make, interpret and enforce its own laws. Each country in the world is a jurisdiction. Sub-national entities like states, provinces and municipalities may be a jurisdiction depending on the operation of law in the country they are part of. Some supra-national bodies like the EU and the UN are jurisdictions. To some extent, even companies, clubs and similar bodies are jurisdictions to the extent that they can make, interpret and enforce its own rules. A jurisdiction can decide that it has jurisdiction based on a whole raft of matters including: where the event took place where the party(s) are resident where the party(s) are citizens registration of things like planes, trains and automobiles if money passed through their financial system etc. A court or tribunal has jurisdiction if the jurisdiction has jurisdiction and it is the correct body within its jurisdiction to hear a particular matter. Which laws apply? Once a court or tribunal has decided that it does have jurisdiction it then needs to know what law to apply. This may be the law of their jurisdiction or another jurisdiction or both. Example For example, imagine there is a company in New York, USA that sells a product to a consumer in New South Wales, Australia. Further suppose that the contract says it will be governed by the laws of Ontario, Canada (don't ask me why). In the event of dispute, let's say the consumer begins proceedings in the Local Court in New South Wales. The New York company petitions the court to say that the correct forum is the court in Ontario, or New York, or Mexico where the product shipped from but certainly not New South Wales. The court in New South Wales will consider the jurisdictional arguments and decide if it does or does not have jurisdiction. If it decides that it doesn't then the customer would have to bring an action somewhere else (where the process repeats). Worth noting that the New York company would be precluded from arguing in that forum that New South Wales was the right jurisdiction because they can't have their cake ... If it decides that it does have jurisdiction then it would consider what law applies. Its quite probable that they would accept that the contract is governed by Quebec law. However, Australian law, most specifically the Australian Consumer Law would also apply. If there was a claim on a tortuous basis this might be New South Wales or New York law. They would then proceed to decide the case on the applicable law including working out how to reconcile any incompatibilities.
The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does.
united-states In the US Judges are generally not supposed to take public opinion into account, nor the views of executive officials, except as those are expressed in briefs or other documents submitted during a case. This is part of the &quot;Independence of the Judiciary&quot; or &quot;Judicial Independence&quot; Where a court has been too strongly influenced by short-term public opinion in a criminal case, this has been held to be a violation of Due Process, as was noted in Powell v. Alabama, 287 U.S. 45 (1932) although the main issue there was the right to Counsel (a lawyer). In the opinion it is said that: It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. (287 U. S. 51) However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. (287 U. S. 53) In The Federalist #78 Hamilton wrote: ... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with &quot;sufficient minimal contacts&quot; with the forum state such that the particular suit &quot;does not offend 'traditional notions of fair play and justice.'&quot; What constitutes sufficient &quot;minimum contacts&quot; has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the &quot;unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws.&quot; For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction.