Mizuho Bank, Ltd. See Levine Hat Co. Another useful case for defeating waiver arguments is Hinrichs v. General Motors of Canada, Ltd. First, Hinrichs turns the waiver argument around, holding that the plaintiff had himself waived the waiver argument by not asserting it clearly or timely. When it appeared that the trial court would not further amend its scheduling order, [defendant] filed its motion reasserting its defense to personal jurisdiction.
See Statek Corp. Coudert Bros. The dilatory plaintiff scenario occurs with startling frequency, especially in MDL situations where weak plaintiffs seek to lie low and do nothing while hoping for a settlement. Another frequent source of plaintiff-side dilatory conduct of not pursuing pleaded claims is asbestos, where many defendants languish until something usually a settlement; sometimes a bankruptcy causes the plaintiff finally to pay attention to a low level defendant with an inchoate personal jurisdiction defense.
Part III offers a potential explanation. See Coll. This Part begins by taking the Court at its word. It assumes we can compare waivers by both states and criminal defendants, and it accepts that valid constitutional waivers must be knowing and voluntary. First, states are far more likely than individual defendants to know their rights and understand the scope of their waivers. States have attorneys, information, financial resources, institutional knowledge, and experience.
Moreover, states participate in producing the legislation that compels or bargains for their waivers. See Vicki C.
Indeed, it is a foundational tenet of our political process that Congress represents state interests. There is no analogous representation for criminal defendants. States thus not only are better equipped to understand the consequences and nature of a waiver, but also are in the room where decisions about those waivers are made. See generally, e. Project, Justice Denied 52—70 The presumption that such defendants have any legal knowledge on which to fall back is untenable.
Second, states are better positioned to voluntarily waive their rights. Voluntariness can be analyzed as freedom from coercion: the more vulnerable to coercion the rights holder, the weaker the presumption that they acted voluntarily. A waiver might be coercive because of the nature of the choice it invokes is it too good to pass up? See Mitchell N. For discussion of waivers in custodial interrogations and in the face of a prosecutor seeking to compel a guilty plea, see infra sections II.
See The Const. Project , supra note 21, at 61—64 describing resource gap. This Part seeks to draw only general conclusions about these baselines. To cite just one example, in the plea bargaining process, white defendants systematically get offered more lenient charges and sentences than do Black defendants.
The system thus reduces the already minimal leverage that Black defendants have when deciding whether to waive their rights. By contrast, we can more safely presume that state decisionmakers have the political clout to make voluntary decisions under pressure from the federal government.
Using these baselines, we would expect courts to be more willing to presume that states, not criminal defendants, validly waived their rights, since the risk that the former acted unknowingly or involuntarily is lower than the corresponding risk for the latter.
In terms of legal rules, this would translate into a double standard: a waiver test for states that is easy to satisfy, and a waiver test for criminal defendants that is hard to satisfy. But as Part II will show, while we have a double standard today, it is the precise opposite of the one we might expect. This Part moves to the descriptive.
Several constitutional provisions protect criminal defendants. Recognizing that defendants may waive the rights conferred by those provisions, the Court has had to develop standards to evaluate such waivers.
It has almost universally turned to Johnson as a starting point. State immunity does not extend to suits by other states or the federal government. See South Dakota v.
North Carolina, U. Texas, U. Hyatt, S. Maine, U. Note that there is, however, a debate about the constitutional grounding of Eleventh Amendment immunity. The ability to waive immunity and consent to suit was acknowledged in the earliest sovereign immunity cases.
Barnard, U. Louisiana, U. This Note treats waiver and consent interchangeably as situations in which the state, through its own actions or decisions, gives up its immunity.
But see Jonathan R. The following sections explore those standards in the context of three waiver mechanisms that the Court has evaluated for both states and criminal defendants. Section II. There is an ongoing debate about whether Miranda warnings are constitutionally required. Weisselberg, Saving Miranda, 84 Cornell L.
B addresses bargained-for waivers that are exchanged for a benefit. For criminal defendants, this exchange manifests in plea bargaining, through which individuals can waive their rights to a trial and against self-incrimination in exchange for leniency; for states, the exchange is effectuated by Spending Clause legislation, through which states can waive their immunity for federal funds.
See Boykin v. Alabama, U. See Atascadero State Hosp. Scanlon, U. C addresses waivers that occur in the course of litigation. For criminal defendants, the question arises when a state defendant seeks to raise a procedurally foreclosed claim on direct or collateral review; for states, it can arise when the state did not raise the immunity defense at trial but seeks to raise it on appeal.
Each example reveals that while concerns about voluntariness and knowingness consistently animate the Court, in practice the Court has defined those concepts inconsistently to strengthen the presumption against state waivers and weaken it for criminal defendants.
Individual Fifth Amendment Waivers. Thompkins, U. Miranda , U. Huang, Custodial Interrogations , 88 Geo. Miranda originally read Johnson to provide robust protections. Burbine, U. But since Miranda , the Court has drastically limited its scope by weakening both requirements. A Proposal to Mirandize Miranda, Harv. Weisselberg, Mourning Miranda, 96 Calif. It began by rejecting a clear statement rule in North Carolina v.
The defendant had been handed his Miranda rights in writing, but there was a dispute about whether he could read, and he refused to sign a written waiver. Two years later, in Edwards v.
Wisconsin, U. But subsequent cases diluted that protection. Davis v. That argument appears, however, to conflate knowing that you have a right to a lawyer with knowing that you have to unambiguously assert your desire for one to preserve that right; it also seems to conflate awareness of the right with ability to make a free and deliberate voluntary choice about whether to exercise it.
Imagine the following scenario: Police read a suspect her Miranda warnings and inform her she has a right to a lawyer. The suspect wants a lawyer and mumbles that maybe she should talk to one. But under Davis v. Litigation Strategies. Objection Procedures. Personal Jurisdiction. Trial Preparation. Civil Procedure. Carlton Fields on:. Bauman , U. Brown , U. III, Sec. As a general rule, courts read congressional grants of subject-matter jurisdiction narrowly, resolving any ambiguities in favor of denying jurisdiction.
A threshold concern for all federal courts is the presence, or absence, of constitutional standing. The standing requirement, as governed by Article III of the Constitution, permits federal courts to adjudicate only cases or controversies.
A case or controversy must comprise an actual injury that can be redressed. See Lujan v. Defenders of Wildlife at p Subject-matter jurisdiction does not exist in the absence of constitutional standing. This restriction prevents courts—whose members are not elected and are therefore not politically accountable—from influencing the law in a legislative capacity. In this sense, the standing doctrine and subject-matter jurisdiction facilitate the separation of powers.
The two primary sources of the subject-matter jurisdiction of the federal courts are diversity jurisdiction and federal question jurisdiction. See 28 U. Under federal question jurisdiction, a litigant—regardless of the value of the claim—may bring a claim in federal court if it arises under federal law, including the U.
Federal question jurisdiction requires that the federal element appears on the face of a well-plead complaint, is a substantial component of the complainant's claim, and is of significant federal interest.
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