Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict

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This article examines a form of securities class action that is growing increasingly popular in U.S. courts: the “foreign-cubed” action, brought against a foreign issuer on behalf of a class that includes foreign investors who purchased securities on a foreign exchange. These cases are becoming an important part of the regulatory landscape, and they create the potential for particularly severe conflict with other countries on the question of how best to regulate global economic activity. Yet they point out quite clearly that the traditional conduct and effects tests for subject-matter jurisdiction are inadequate to the task of delimiting the reach of U.S. securities laws in the global capital markets. The article draws on a study of forty-five foreign-cubed claims. It analyzes the arguments made by foreign investors seeking to justify the application of U.S. law to their claims—arguments that base an expansive theory of regulatory jurisdiction on the interconnections among the world’s capital markets. It then turns to judicial disposition of such claims, addressing the various stages of litigation (including class certification) at which courts confront jurisdictional questions and identifying a series of assumptions that courts make in attempting to draw jurisdictional lines. Examining those assumptions, the article concludes that courts operating within the current jurisdictional framework cannot adequately manage the regulatory conflicts that foreign-cubed claims present. It therefore supports a jurisdictional limit based on the location of investment...

Flunking the ECJ’s Tax Discrimination Test

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This Article argues that by applying a highly formalistic methodology to decide tax cases, the European Court of Justice avoids the challenge of weighing the harms of tax discrimination against the benefits to Member States in retaining autonomy over their tax systems. By eschewing normative analysis in favor of formalism, the Court engenders significant legal uncertainty both for taxpayers contemplating intra-Community investment and for Member States dependent on tax revenues. This uncertainty tends to undermine the very economic integration the prohibition on tax discrimination was meant to foster. This Article identifies the normative considerations that the Court could use to clarify the non-discrimination principle in tax cases. These include the desire to foster political and economic integration by curbing tax protectionism, tax exportation, tax preferences for nonresidents, and exit or other outbound...

An Overlooked Gateway to Victim Compensation: How States Can Provide a Forum for Human Rights Claims

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Dorsey & Whitney Student Writing Prize In Comparative And International Law Outstanding Note Award Winner This Note argues that state statutory and common law causes of action are viable alternatives to the Alien Tort Statute (ATS). After discussing the challenges to bringing ATS claims in federal court, this Note examines cases brought against corporations and individuals for human rights violations under state law. Although state law claims are not without their set of challenges, this Note argues that they have been used successfully by foreign plaintiffs in suits for wrongs committed outside the United...

Match-Made in Cyberspace: How Best to Regulate the International Mail-Order Bride Industry

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Dorsey & Whitney Student Writing Prize In Comparative And International Law Outstanding Note Award Winner In 2006, Congress enacted the “International Marriage Broker Regulation Act of 2005” (“IMBRA”) to address the growing concern over the incidence of domestic violence among mail-order brides. After providing an overview of the mail-order bride industry in the U.S. and a critical analysis of the legislation, this Note argues that IMBRA does not extend far enough to achieve its stated goal. While IMBRA embodies a bold attempt to combat domestic violence among mail-order brides, it fails to address the legally-sanctioned tool that fosters and perpetuates abusive relationships among immigrant women and their citizen husbands—the U.S. immigration...