1. Rationale behind the Law
Methods of effective law
i. Efficiency
1. Get to the facts as quickly as possible.
2. Time delays are costly
3. Litigation itself is expensive, filing fee
ii. Transparency
1. See and feel that justice is being done
2. Consistent application, and accountability, fight corruption
iii. Participation
1. Republican government, have your voice heard in a public forum
2. Interaction and commitment
Reasons for a Federal system
i. Choice of state and laws
1. May sound better in theory than application
ii. Geographic proximity to representatives.
1. Not many people even know who they are.
iii. Efficiency, one national model.
1. Also has redundant overlap.
iv. Ability for states to leave.
1. Not likely, an extreme measure.
v. Checks and balances.
1. Can also be achieved on the state level. We have state constitutions, etc.
Two systems of justice; civil (statute based) and common law (judge made). The US is a combination of both forms.
i. Reasons to allow litigants to control in a common law adversarial setting.
1. Puts the onus on the lawyers litigating the case
2. Parties control much of the litigation
3. Motivated as capable fact finders
4. Judge is a passive moderator
Reasons for a civil system where the judge controls the investigation and pace of the litigation.
i. Settlement conferences
ii. Judge may be more adapt at hearing complicated matters, might be a better fact finder.
iii. Speed up the docket
The US is broken down into state and Federal courts. There are reasons to prefer one over the other.
i. Federal courts
1. Liberal discovery procedures
2. Better facilities
3. More ‘Important’ cases, involving large sums of money
4. Better lawyers, judges
5. Wider jury pool, potentially more educated.
ii. State Courts
1. State judge or jury may be more sympathetic
2. Avoid liberal discovery rules
3. May be more comfortable and experienced at the state level
Court systems themselves are generally broken down into a tiered system
i. Trial Court
1. In federal court, spread across 91 district courts, including the territories and DC
ii. First court of appellate review
1. Most allow by right at least one level of appeal by right.
2. Don’t have to appeal. May be too expensive.
3. Will not reopen factual findings of lower courts, unless particularly egregious. A court of law.
4. In federal court, broken into 11 circuits
a. 4 judge panels review the appeals
iii. Court of last resort
1. Not always an appeal by right, very discretionary if this court will hear your claim.
2. SCOTUS has very few cases it has to hear. Grants cert to a very small minority of cases that petition.
3. States differe.
a. In CA, can not appeal to CA supreme court as a matter of right, only in death penalty type cases.
b. In NY, much more liberal.
Territorial Jurisdiction
i. Reasons to have state jurisdictions, and not one national jurisdiction
1. Forum shopping
2. Familiarity with local state laws
3. Location of exhibits, evidence
4. Expensive for the parties to move to states/ jurisdictions that are far removed from their locations.
5. State sovereignty
6. States as the democratic laboratory for the nation
2. Personal Jurisdiction
The historic premise for the assertion of personal jurisdiction rests on a courts powers over a given defendant or her property. Court was able to assert control under three flavors.
i. In personam; permits a court to enter a judgment that is personally binding upon the defendant.
1. Ex; State X issues a judgment against defendant Y.
ii. In rem; permits the court to adjudicate the rights as to a piece of property.
1. Ex.; Box of crackers in State X belongs to Y. This is about the property only. Not a personal judgment.
iii. Quasi in rem; gives the court jurisdiction over the defendant personally, but ONLY to the extent of the in-state property belonging to him which has been garnished or attached.
1. Ex; State X enters a quasi in rem action against Y, allows Plaintiff to satisfy personal claim by taking Y’s property in State X.
2. Has been changed radically in terms of forum state contact requirements. (see Schafer later)
Evolution of jurisdiction doctrine, “presence” required for jurisdiction. Early roots
i. Court could only have control over someone who was physically in their territory. Dating back to a concept of a feudal system of justice.
ii. Early law had a strict formalistic requirement of physical presence. Pennoyer v. Neff (1877)
1. Justice Field makes two critical rulings
a. “every state possesses exclusive jurisdiction and sovereignty over persons or property withing its territory”
b. “that no state can exercise direct jurisdiction and authority authority over persons or property without its territory.
iii. In other words, state had power to adjudicate a dispute if and only if the defendant is present in the state and could be personally served in the state.
1. Difficulties with the early Pennoyer rule
a. Not always clear what defines presence (see Corporations)
b. Overly formalistic
c. Multi-state litigation, national economic model of business.
2. Good parts to the Pennoyer rule
a. Easy to understand
b. State rights and independence given deference.
iv. Note that Pennoyer treats in rem actions different then in personum actions.
1. Personal service required for in personum. As long as you serve Δ in the forum state, you have jurisdiction under Pennoyer.
2. Publication alone would be sufficient for in rem.
3. NOTE that Pennoyer’s differing treatments has been overruled in a later decision!
The Notion of Consent, Courts try to address the short comings of Pennoyer. One of the biggest exceptions to the Pennoyer rules was the notion that parties not physically present in the state could consent to the state’s jurisdiction.
i. A state can condition a corporation’s right to do business within it’s borders on its consenting to service of process on an agent specifically designated by the corporation for that purpose. Lafafayette Insurance Co. v. French.
ii. Implied consent statutes, unhappy with the strict Pennoyer test, some states had statutes that designated local DMV agent to receive service. Hess v. Pawloski (1927).
1. States needed these statutes, because someone could enter the state, injure a citizen and drive off w/out being served a summons or a law suit. The strict Pennoyer rule would make Δ unreachable since he was no longer physically present in the state and did not have any property in the state.
2. An awkward and artificial notion of Implied consent leaves D with no real choice in the matter.
a. St
. Specific jurisdiction; limited contacts with state. If litigation arises out of these limited contacts, can be sued. However, can only be sued about the issue arising out of the contacts.
iii. NOTE that at the lower court, Helicopteros was argued as a general jurisdiction case. May have come out differently if Π had argued specific jurisdiction.
iii. In addition to minimum contacts, must still comport with ”traditional notions of fair play and substantial justice” Not clear what exactly this means.
1. Interest of the state in regulating the activity
2. Interest of the state in providing a forum for its citizens
3. Relative convenience of the parties
a. SCOTUS has made clear that if the Δ’s contacts satisfy the minimum contacts threshold, then few other considerations are likely to tip the balance in rejecting jurisdiction as unfair. Keeton v. Hustler Magazine. (choosing to bring suit in RI, due to statute of limitations, Π had very few contacts with forum state)
b. Does not seem to drive the decisions, and is a very secondary concern of the court.
iv. Courts have elaborated upon the International shoe test and have focused on the foresee-ability of being dragged into court and have required a purposeful act
1. Foresee-ability Gray v. American Radiator (Ill state case)
a. A forum state constitutionally may exercise personal jurisdiction over a corporation that delivers its product into the stream of commerce with the expectations that they will be purchased by consumers in the forum state.
b. Early stream of commerce cases were very expansive. Permitted jurisdiction over corporations that put products in the stream of commerce, even when they weren’t sure where they would end up. Gray. American Radiator
2. However, there are limitations. Acts must be voluntary; In Kulko v. Superior Court (Feuding divorced parents. Dad in NY sends daughter to CA to see mom.)
a. SCOTUS points to several factors that are in addition to the Shoe test.
i. Δ’s act was not purposeful or voluntary act
ii. Δ did not purposefully avail himself of the privileges and protections of CA.
iii. Was not foreseeable that purchasing a plane ticket would force him to litigate a case in a forum thousands of miles away.
1. Note that SCOTUS did not even mention the interests of the forum state in litigating the case.
3. In addition, foresee-ability alone is not enough for personal jurisdiction. Purposeful conduct either by acts in the forum state, or acts outside of the state that defendant could foresee as bringing potential liability. World Wide Volkswagon Corp. v. Woodson (1980)
Forseeability alone without affiliating circumstances is insufficient. Otherwise a every seller of chattels would in effect designate his chattels as an agent for service of
