Seven weeks left in the semester. It's all about those exams on December 12, 14, 17, and 20 -- not that I'm counting the days. Because law school grades are exclusively derived from those blind, bell-curved exam scores, the pressure is only going to increase from here until December.
My law school is on "fall break" all week, which allows 2Ls and 3Ls some time to travel for interviews, and for 1Ls to exhale for the first time, or to start studying for those final exams, hoping to be one of the lucky (talented?) 10% who can receive As. After taking the weekend to deal with a lot of personal financial affairs that had been pushed to the back burner by the first eight weeks of law school, today I'm beginning the systematic review of my four main classes. (There's no exam for my "Lawyering" class, but as discussed previously on this blog, the other four are formally identical.)
Civil Procedure began with the study of jurisdiction... and eight weeks later, we're still on jurisdiction. Civ Pro Prof is in his first year of teaching, and I wonder how much of the semester is going according to plans. This is the only class that meets only twice a week -- though its two 75-minute classes and Con Law's three 50-minute periods are the same length overall -- and we've met far less frequently than the others. The count: Contracts = 22 meetings; Torts = 23; Con Law = 22; Civ Pro = 12. So I wonder whether or not we are behind most other Civ Pro classes, or whether the study of jurisdiction is an endless loop.
We've studied two main types of jurisdiction so far: Personal Jurisdiction and Subject Matter Jurisdiction. Personal jurisdiction concerns questions about whether a person can be responsible for defending a lawsuit in a given state. There are three types of personal jurisdiction: in personam, or jurisdiction over one person in his/her bodily form; in rem, or jurisdiction over a specific thing -- real estate or other personal property; and quasi in rem, which is a category between in personam and in rem.
Examples of these three categories:
1) A, a resident of Arizona, lends money to C, a resident of California. C fails to repay the money according to the contract and so A wants to sue C. If C is a California homebody who just sits around and surfs in San Diego 365 days a year, then C is only subject to jurisdiction in California -- A couldn't claim that C would have to adhere to judgments of the state of Arizona. A would have to go to California and sue C in California courts; C is only subject to in personam jurisdiction there.
But if C leaves California and goes to pick up a new wet suit on First Avenue in Tucson, and A finds out that C is in town, A can serve C with papers for a suit in Arizona. If you go to a state willingly, then you're submitting yourself to in personam jurisdiction there (you have a bodily presence in the forum state). Even if C flies on a plane from San Diego to Houston, if A could somehow serve C in the airspace above Arizona, that would count as C's presence in Arizona. (But not if, say, C wipes out while surfing, breaks his neck, and is taken to a trauma center in Phoenix while he's unconscious. Presence has to be voluntary.)
2) To illustrate the difference between in personam and in rem, assume that C is still a California surfer who never leaves San Diego, but that he also owns a yacht docked on the Tucson River. C sells the yacht to A, but the contract is disputed and C refuses to deliver the keys to the ship to A. A wants to sue C to get the ship.
This is where in res comes in. Although C is still not subject to personal jurisdiction in Arizona, the object of the dispute is in Arizona, and so A can sue C in Arizona courts. Technically, the basis of the suit would be the yacht -- not necessarily A himself -- and under in res rules, the "thing" itself is subject to Arizona jurisdiction.
3) Quasi in rem jurisdiction applies if the suit isn't related to the object in question. Say that C is the same surfer who never leaves California. C owns a run-down tugboat docked on the Tucson River. But this time the dispute has nothing to do with the boat -- A lends $500,000 to C, C doesn't honor the contract, and A wants to sue to recover the $500,000. A is allowed to sue C in Arizona court because C owns property in Arizona. But the suit can only recover the Arizona property itself. Let's say that C doesn't show up, or is represented at trial but he loses. The state of Arizona could seize the tugboat and give it or the proceeds to A. But if the tugboat is only worth $20,000, then A only gets $20,000 -- A would not get the tugboat PLUS an enforceable judgment for C to pay A the remaining $480,000 difference under quasi in rem jurisdiction.
The next topic has is primarily about products liability cases: how does jurisdiction apply to corporations that sell products in many states? K, a Kansas resident, buys a pair of Nike sneakers at Foot Locker in Lawrence. During his first jog the soles fall off and he falls and breaks his wrist. Clearly Nike has made some defective shoes, but K bought them at an independent retailer in Kansas (and we'll assume that Nike doesn't have any factories or retail locations in Kansas -- assume it's just an Oregon company that ships its products from Oregon to out-of-state retailers). But it would be extremely impractical for K to sue in Oregon -- he wants to sue in Kansas. Can he? Let's say that K hacks Nike's computer system and distributes intellectual property about Nike's sneaker tests on K's blog (hosted by a server and ISP in Lawrence). Could Nike sue K in Oregon?
The key term of art for making these legal determinations is known as "minimum contacts." A plaintiff has to establish that the defendant has made minimum contacts with the forum state. Because we all know that Nike advertises everywhere, has a huge percentage of the national market share for sneakers, sponsors KU basketball, and so on, it does have the minimum contacts necessary to submit it to Kansas jurisdiction on an injury that happens in Kansas. But where's the limit to minimum contacts? For companies smaller than Nike, it could be a real problem if they had to defend themselves against suits anywhere that their products may end up. The minimum contacts test is probably getting more outdated as the country and the world become more closely integrated, but in a country as big as the US, it still makes a difference for smaller businesses or individuals, when the expenses of travel and accommodation in a distant state might be prohibitively expensive.
We read one real case involving an airplane crash in Scotland. Everyone on board was Scottish, the crew were all Scottish, the airline was Scottish, but the plane itself was made by a Pennsylvania company and sold to Thistle Airways. Because American tort laws are more inclusive (more plaintiff-friendly) than in Scotland, the estates of the deceased wanted to sue in American courts. Though there may be minimum contacts connecting the American manufacturer to Scotland -- it sells airplanes to clients there -- courts send jurisdiction to the forum that it finds to be most appropriate. In this case, the attempt to litigate in the US was clearly not as appropriate as the place containing all the evidence, and the home of the main corporation and all the decedents.
Now we're studying jurisdiction over subject matter, which involves questions about state issues that may get bumped up to federal court for various reasons. The first such reason would be diversity -- i.e., when there are multiple defendants from different states in the same case. M, from Maryland, buys a defective guitar. The guitar's body was manufacturer by a N, a New Jersey company; the neck and strings were assembled by I, an Illinois company. The constitution allows for federal courts to decide the case -- even if the case is not about a federal rule -- due to the diversity of the parties.
I'm looking forward to studying the more minute details of these concepts during the rest of the afternoon. Tomorrow: contracts.
Monday, October 15, 2007
Tuesday, October 2, 2007
If Clarence Thomas buys a book to teach himself to read, is that "commerce"?
Everyone should know more about Clarence Thomas than just that he's a pervy dork, which the Anita Hill hearings should have made quite obvious. Before law school, I knew only a little about him:
1. that he votes conservative on almost all issues except ones about porn (you can probably guess why that is)
2. that he almost never talks -- every description of his role in Supreme Court cases mentions that it is really awkward that the other eight justices can converse like intelligent adults and the weird leery justice just sits there
3. everything from the confirmation hearings (e.g., the Coke can pubic hair)
4. that his cultural tastes are really odd for a black person or for a Supreme Court justice -- he drives around in an RV all summer, going to NASCAR and sleeping in Wal-Mart parking lots (really!)
Anyway, I knew he was weird and suspected he was slightly dumb; despite what he says (and probably even thinks), he is only where he is right now because of affirmative action. But the truth of his opinions is so much worse than that! He's currently on a media blitz promoting his new memoir: you may have seen him on 60 Minutes or other news shows, or breaking his silence for a 90-minute interview on Rush Limbaugh. (Again, I am not kidding. He even presided over Rush Limbaugh's wedding ceremony.) Talking with people like Limbaugh is just not the kind of thing that Supreme Court justices are supposed to do! The other justices tend to do things like participating in international conferences on jurisprudence at the Sorbonne. This tendency is not characteristic of either side of the Court's spectrum: Scalia, Kennedy, Breyer -- all are engaged in serious intellectual debates and scholarship outside of the court. Clarence Thomas listens to Rush Limbaugh.
We've been reading about the history of interpreting the Commerce Clause (part of Article 1, Section 8 of the Constitution), which gives Congress the power to pass laws regulating interstate commerce. During and after the Great Depression, Congress naturally wanted to pass new regulatory and labor laws due to the fact that commerce had been totally dysfunctional. Without getting into the whole debate, it's important to know that the Supreme Court went along with granting Congress the power to pass laws regulating a lot of commercial activity even if that activity took place entirely within the borders of a single state (under the theory that the national market would be affected by the actions of a single state), or if that activity is not strictly "commercial" but that it affects commerce. A good example of the latter would be certain civil rights laws prohibiting a restaurant like Whitey's Hamburgers in Charleston, S.C. from refusing to serve black customers. The reasoning is that Congress can make this South Carolina restaurant follow a federal law (because you know the S.C. politicians would never do anything about it) because discriminatory policies hurt nationwide commerce. If any restaurant could discriminate, that would seriously hurt the opportunities for any black people to go out and spend money on food. ["Whitey's" is a hypothetical case based on similar real ones.]
So, to relate this to Clarence Thomas in the 1990s: a 1995 Supreme Court ruling struck down a 1990 federal law that made it a crime to carry a gun on school property. The law tried to use the Commerce Clause to justify its authority, saying that unsafe schools would adversely affect interstate commerce -- gun violence leads to bad schools which leads to a malfunctioning economy. This argument lost, and the law was deemed unconstitutional by a 5-4 vote.
Clarence Thomas voted in the majority on this case (United States v. Lopez). What's scary about his vote here and on many other cases is that he tries to define a term like "commerce" in a decontextualized vacuum that essentially makes the use of the word so limited that Congress's power to use the clause is extremely tiny. Thomas writes something like this: "Commerce" was sometimes used distinctly from "manufacturing" and "agriculture." So "commerce" must be different from anything related to manufacturing. The Commerce Clause would give Congress the power to regulate the trade of an item across state lines... and that's essentially it.
So when the framers and the ratifying conventions put in this clause, what does Clarence Thomas think that they were thinking? Of course if he'd actually read what they were thinking, from reports of the constitutional conventions, he'd have known that the late 18th-century American economy was totally tanking because, in part, the states had no coherent economic policy, and so the smart framers wanted for Congress to manage commerce in a way that no single self-interested state legislature could. But Thomas seems content to cherry-pick some quotes that suggest that ONE meaning of "commerce" was distinct from "manufacturing," limiting commerce to the actual sale of goods across state lines. His definition of "commerce" naturally means that Congress can't regulate much of anything, giving us the unregulated nightmare of the Great Depression or the privatized, no-bid, unregulated commerce of Halliburtons and Blackwaters.
The only silver lining is that even Justice Scalia recognizes that CT is the epitome of the activist judiciary against which conservatives have so frequently complained. CT's "opinions" don't recognize judicial precedent -- he simply claims a power to read the mind of a random Founding Father who would, CT says, never have let Congress do almost anything, but would have let the executive have free reign. At least CT is smart enough to do the bidding of the Bushies who have given him everything he has -- his jobs, his RV, his cans of Coke. He's become the perfect "injured" conservative because of the confirmation hearings -- thinking that the country is taking his way of life away from him despite the obvious political and economic domination of this country by the right for the last 27 years.
If only Clarence could speak up when the Court is in session about some of his kooky ideas about the Constitution, then the other Justices could tell him that he's totally fucked up just like Anita Hill did when he started talking about zoophilia. My idea would be to pass the Jackie Treehorn Act: use the Commerce Clause to protect the adult film industry, and then see what CT thinks. Justice Thomas forgets that the brain is the biggest erogenous zone...
1. that he votes conservative on almost all issues except ones about porn (you can probably guess why that is)
2. that he almost never talks -- every description of his role in Supreme Court cases mentions that it is really awkward that the other eight justices can converse like intelligent adults and the weird leery justice just sits there
3. everything from the confirmation hearings (e.g., the Coke can pubic hair)
4. that his cultural tastes are really odd for a black person or for a Supreme Court justice -- he drives around in an RV all summer, going to NASCAR and sleeping in Wal-Mart parking lots (really!)
Anyway, I knew he was weird and suspected he was slightly dumb; despite what he says (and probably even thinks), he is only where he is right now because of affirmative action. But the truth of his opinions is so much worse than that! He's currently on a media blitz promoting his new memoir: you may have seen him on 60 Minutes or other news shows, or breaking his silence for a 90-minute interview on Rush Limbaugh. (Again, I am not kidding. He even presided over Rush Limbaugh's wedding ceremony.) Talking with people like Limbaugh is just not the kind of thing that Supreme Court justices are supposed to do! The other justices tend to do things like participating in international conferences on jurisprudence at the Sorbonne. This tendency is not characteristic of either side of the Court's spectrum: Scalia, Kennedy, Breyer -- all are engaged in serious intellectual debates and scholarship outside of the court. Clarence Thomas listens to Rush Limbaugh.
We've been reading about the history of interpreting the Commerce Clause (part of Article 1, Section 8 of the Constitution), which gives Congress the power to pass laws regulating interstate commerce. During and after the Great Depression, Congress naturally wanted to pass new regulatory and labor laws due to the fact that commerce had been totally dysfunctional. Without getting into the whole debate, it's important to know that the Supreme Court went along with granting Congress the power to pass laws regulating a lot of commercial activity even if that activity took place entirely within the borders of a single state (under the theory that the national market would be affected by the actions of a single state), or if that activity is not strictly "commercial" but that it affects commerce. A good example of the latter would be certain civil rights laws prohibiting a restaurant like Whitey's Hamburgers in Charleston, S.C. from refusing to serve black customers. The reasoning is that Congress can make this South Carolina restaurant follow a federal law (because you know the S.C. politicians would never do anything about it) because discriminatory policies hurt nationwide commerce. If any restaurant could discriminate, that would seriously hurt the opportunities for any black people to go out and spend money on food. ["Whitey's" is a hypothetical case based on similar real ones.]
So, to relate this to Clarence Thomas in the 1990s: a 1995 Supreme Court ruling struck down a 1990 federal law that made it a crime to carry a gun on school property. The law tried to use the Commerce Clause to justify its authority, saying that unsafe schools would adversely affect interstate commerce -- gun violence leads to bad schools which leads to a malfunctioning economy. This argument lost, and the law was deemed unconstitutional by a 5-4 vote.
Clarence Thomas voted in the majority on this case (United States v. Lopez). What's scary about his vote here and on many other cases is that he tries to define a term like "commerce" in a decontextualized vacuum that essentially makes the use of the word so limited that Congress's power to use the clause is extremely tiny. Thomas writes something like this: "Commerce" was sometimes used distinctly from "manufacturing" and "agriculture." So "commerce" must be different from anything related to manufacturing. The Commerce Clause would give Congress the power to regulate the trade of an item across state lines... and that's essentially it.
So when the framers and the ratifying conventions put in this clause, what does Clarence Thomas think that they were thinking? Of course if he'd actually read what they were thinking, from reports of the constitutional conventions, he'd have known that the late 18th-century American economy was totally tanking because, in part, the states had no coherent economic policy, and so the smart framers wanted for Congress to manage commerce in a way that no single self-interested state legislature could. But Thomas seems content to cherry-pick some quotes that suggest that ONE meaning of "commerce" was distinct from "manufacturing," limiting commerce to the actual sale of goods across state lines. His definition of "commerce" naturally means that Congress can't regulate much of anything, giving us the unregulated nightmare of the Great Depression or the privatized, no-bid, unregulated commerce of Halliburtons and Blackwaters.
The only silver lining is that even Justice Scalia recognizes that CT is the epitome of the activist judiciary against which conservatives have so frequently complained. CT's "opinions" don't recognize judicial precedent -- he simply claims a power to read the mind of a random Founding Father who would, CT says, never have let Congress do almost anything, but would have let the executive have free reign. At least CT is smart enough to do the bidding of the Bushies who have given him everything he has -- his jobs, his RV, his cans of Coke. He's become the perfect "injured" conservative because of the confirmation hearings -- thinking that the country is taking his way of life away from him despite the obvious political and economic domination of this country by the right for the last 27 years.
If only Clarence could speak up when the Court is in session about some of his kooky ideas about the Constitution, then the other Justices could tell him that he's totally fucked up just like Anita Hill did when he started talking about zoophilia. My idea would be to pass the Jackie Treehorn Act: use the Commerce Clause to protect the adult film industry, and then see what CT thinks. Justice Thomas forgets that the brain is the biggest erogenous zone...
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