Law School Discussion

Announcing the most BORING LSD thread EVER! Here we ask & answer legal questions

J D

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In.

So what do you guys think of "tag" jurisdiction?  In the Burnham case, I don't really find Scalia's majority (it's just tradition) or Brennan's concurring opinion (purposeful availment of a state's resources) that compelling.  Our casebook had an interesting hypo, in which Alex, knowing that Beth has just visited Oregon, sends her a waiver of service by mail, claiming Oregon jurisdiction on the theory that she subjected herself to Oregon jurisdiction by visiting the state.  The best that my class and professor could come up with for dismissing the waiver of service was that the tactic was "too cute."  I don't think this is an adequate explanation, and it's led me to think that tag jurisdiction is a bit outdated, and really contrary to notions of fair play and substantial justice - especially in cases like Burnham where the reason he was in Cali while he was served was to see his kids that his wife had dragged off to Cali (I know he was also there on business, but I don't think the court really factored this into its reasoning, at least not in the excerpted version in my casebook).

I think it sucks.  Actually, I think subject matter jurisdiction and personal jurisdiction are the most painful topics of study.  But seriously, I think relying on the historical basis of "well, once upon a time it was ok to serve someone if they were in that state" is crap.  Sure, maybe that made sense back with Pennoyer, but it confuses me that there are cases where personal jurisdiction is such a big deal and based on so much more (and there are much more valid reasons for asserting jurisdiction), and then someone can just step over a state line and then personal jurisdiction is ok because they've been served in that state.  I definitely agree that it's completely contrary to fair play and substantial justice.

Scalia is being his normally originalist self, claiming that this type of thing doesn't violate due process because it is part of the traditional background principles which are inherent in the idea of due process of law, principles which weren't displaced when the due process clause was enacted.  The objection most people, I think, have to this is that this sort of reasoning has a troubling level of circularity to it: it doesn't violate due process because it doesn't. 

Brennan's approach doesn't really square with minimum contacts since a) the divorce claim doesn't really arise from the defendant's visiting his kids, and b) this kind of minimum contact proves too much (basically, minimum contacts don't depend on physical presence at all, and so Brennan is effectively saying that if you visited CA ONCE to visit your kids and then left, you're subject to suit even after you leave, no matter where you're served with process).  Brennan thinks there's jurisdiction here (as did every other justice), but the analytical lens he uses seems to point the other way.  If finding jurisdiction is permissible here really is the right result (and generally I think it is), then Scalia's way seems a little more attractive to me, simply because it doesn't strain International Shoe to the breaking point, and the implications aren't as far-reaching (it still allows substantial opportunity for defendants to avoid being subject to suit in states they don't want to litigate in).

As far as the issue of troubling results on policy grounds, one thing to keep in mind is that this case (just like all cases at the Supreme Court dealing with personal jurisdiction, including International Shoe) doesn't give someone a RIGHT to sue you if they manage to serve process on you while you are present within the jurisdiction.  It merely allows the state to exercise jurisdiction over you in such circumstances IF THEY CHOOSE TO DO SO.  And a lot of times, they don't, simply because the implications of exercising such jurisdiction are so scary.  You'll study this a lot more when you start to read about long-arm statutes (if you haven't gotten there already).  Sometimes states choose to exercise their jurisdiction to the full extent the Supreme Court has said they can, but sometimes they choose to restrict themselves even though the Supreme Court has said it's ok as a federal constitutional matter.

Lots of courts, for example, don't exercise tag (or transient) jurisdiction over a defendant who's only in the state because the plaintiff entrapped him into coming into the state just so jurisdiction could be had over him; but they do exercise this jurisdiction when the defendant was already visiting the state anyway, of his own volition, and plaintiff merely entrapped him into showing his face so plaintiff could serve process (it's a sort of but-for test: would defendant have visited the state and subjected himself to service of process therein but for the maneuvering of the plaintiff?  In Burnham, that answer seems to be yes).

And Burnham isn't nearly as scary as Grace v. MacArthur.  In that case, the guy was served with process on a plane flying over Arkansas, and the court held that it was effective as service with process while defendant was present in Arkansas, and thus the Arkansas courts had personal jurisdiction over him.

Alamo

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Thanks JD!  The voluntary constraints that courts can put on themselves do make it a little less scary in many situations, and I certainly see the benefit of the but-for test.  Still, unlike many saner states, CA has a long-arm statute that gives it leeway to do anything not in direct conflict with the constitution.  At this point I can't say I agree that the right result was reached in Burnham (she left him, and he wouldn't have been in Cali had she not taken their kids there), and am thus having trouble accepting the dubious theoretical justification for that result.  But I'll certainly acknolwedge the possibility that I may come to see things differently, as my views on most issues I'm studying seem to shift on a weekly (if not daily) basis as new cases and doctrines come to light.

J D

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Thanks JD!  The voluntary constraints that courts can put on themselves do make it a little less scary in many situations, and I certainly see the benefit of the but-for test.  Still, unlike many saner states, CA has a long-arm statute that gives it leeway to do anything not in direct conflict with the constitution.  At this point I can't say I agree that the right result was reached in Burnham (she left him, and he wouldn't have been in Cali had she not taken their kids there), and am thus having trouble accepting the dubious theoretical justification for that result.  But I'll certainly acknolwedge the possibility that I may come to see things differently, as my views on most issues I'm studying seem to shift on a weekly (if not daily) basis as new cases and doctrines come to light.

That's what 1L is all about.  ;)  As my civ pro professor told me last year, it's best to be ambivalent right now; wait until you're old, crusty, and cantankerous before you allow yourself to have a legal philosophy you're certain is correct.

As for long-arm statutes: I think the more plaintiff-friendly the state is, the broader the long-arm statute is probably going to be.  CA is, I think, still mostly plaintiff-friendly (although not quite as much as they used to be in the 1980s, at least with regard to their tort law), and there are a lot of other notoriously plaintiff-friendly states in the deep south (AL, AS, MI, etc.), but there are other states as well, like NJ, with this kind of reputation.  The Northeast (especially NY and MA) is generally, from what I've seen, more defendant-friendly, and so their long-arm statutes are likely to be more restrictive than they have to be as a matter of federal constitutional law (I know this is true for MA). 

fuwaf

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Very helpful JD, especially as I was just reading about long-arm statutes.

I also read about the Arkansas/plane case a while back.  That is completely ridiculous.

fuwaf

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heres one.

why is it illegal for an 18 yr old to go buy a beer, but it is ok for him to be sent to the front lines and shoot people?

That's not really a legal question.  I could ask a similar question about 16-year-olds being able to drive cars in most states but not being allowed to watch R movies, but it's more a social policy thing.

redemption

Um. Wrong thread, guys  :)

fuwaf

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heres one.

why is it illegal for an 18 yr old to go buy a beer, but it is ok for him to be sent to the front lines and shoot people?

That's not really a legal question.  I could ask a similar question about 16-year-olds being able to drive cars in most states but not being allowed to watch R movies, but it's more a social policy thing.

if its illegal, why would it not be a legal question?

Because no one in law school would be able to explain any rationale behind it even if you actually cared and weren't just wanting to argue about it.

If you think that's the kind of stuff we learn in law school, you have another think coming.

fuwaf

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heres one.

why is it illegal for an 18 yr old to go buy a beer, but it is ok for him to be sent to the front lines and shoot people?

That's not really a legal question.  I could ask a similar question about 16-year-olds being able to drive cars in most states but not being allowed to watch R movies, but it's more a social policy thing.

if its illegal, why would it not be a legal question?

Because no one in law school would be able to explain any rationale behind it even if you actually cared and weren't just wanting to argue about it.

If you think that's the kind of stuff we learn in law school, you have another think coming.

then open your mind, and tell me what you think youd say/do to try and overturn it.

Sure, I think it may make logical sense to have the drinking age set at 18 to correlate with being able to vote, being an "adult," and being in the armed services.  But it was that way at one time and it isn't anymore, and I'm pretty sure it's not going to be that way again because there were surely good reasons for changing it in the first place.  With the drinking age at 21 many people start drinking long before that anyway, so pushing the age lower could exacerbate drinking in even younger people who probably shouldn't be. 

H4CS

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Is anyone surprised that this is what Blueb thinks he'll be learning in law school?

fuwaf

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Is anyone surprised that this is what Blueb thinks he'll be learning in law school?

Yes, and I already told him he wouldn't

Blue, you don't "sue the state" to change the drinking age.  IIRC, it was mandated by the federal government and they withheld money for highway construction or something along those lines until every state changed the age.