Civil Procedure - U Of Iowa - Wetlaufer - Third Packet (2/19/07)

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Personal jurisdiction is always available on the basis of

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(1) domicile
(2) incorporation
(3) consent or
(4) waiver

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In addition to domicile, incorporation, consent and waiver, personal jurisdiction may also be based on

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the sufficiency of the defendant's contacts with the forum state (including the presence of the defendant or the subject property within the forum state).

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Transient jurisdiction is

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personal jurisdiction exercised by the courts of one state over someone who is not a citizen of that state on the basis of that person's temporary presence within the state.

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What is the distinction between general and specific jurisdiction?

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in the law of personal jurisdiction - and more specifically within the law of International Shoe minimum contact analysis - this is the distinction between (1) those situations that, on Wetlaufer's two-dimensional graph, are above the upper horizontal line, and (2) those other situations that are above the lower horizontal line and to the right of the vertical line.

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What is the nature of the legal test that is (was) applied under Pennoyer? What is the question that is (was) asked under Pennoyer?

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Is the defendant or the defendant's property present within the territorial sovereignty of the forum state?

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What is the nature of the legal test that is applied under International Shoe? What is the question that is asked under International Shoe?

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Are the defendant's contacts with the forum state such that the state's exercise of personal jurisdiction would be consistent with the relevant notions of "fair play and substantial justice."

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Immediately after the Court's decision in International Shoe, what is the size of that case? And what, conversely, is the size of Pennoyer?

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The size of International Shoe was never more contestable than it was immediately after the decision was handed down. Anyone who, at this point in time, said they knew the size of these cases would have been engaging in prophecy as to what the Supreme Court would do next and would probably have been wrong.

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In what way can the Court's decision in Shaffer v. Heitner be said to have altered the "size" of International Shoe?

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If Shaffer v. Heitner altered the "size" of International Shoe, it did so by expanding its domain from in personam jurisdiction to all of personal jurisdiction, including both in personam and in rem jurisdiction.

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If International Shoe could fairly be said to have some particular "size" after the Court's decision in Shaffer v. Heitner, who is responsible for its "size" at that particular point in time?

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Responsibility for the size of International Shoe must be assigned jointly to (1) the International Shoe Court and (2) the Shaffer Court - and it might be fair to assign the greater share of that responsibility to the Shaffer Court. I would say that the International Shoe Court created (or left open) the possibility of this interpretation and that the Shaffer Court made it law.

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In Shaffer v. Heitner, the majority announced that "the International Shoe court believed that the standard it was setting forth governed actions against natural persons as well as corporations, and we see no reason to disagree." Is it making an argument? If so, what type?

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It is making an argument from what I will call the actual historical intentions of the International Shoe Court. Thus the Shaffer Court is asserting that the International Shoe Court meant International Shoe to be quite large - and the Shaffer court then cites the earlier Court's intention as a reason to conclude that the earlier case is and ought to be interpreted as being quite large.

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In Shaffer v. Heitner (1977), the defendant acknowledged that cases involving in personam jurisdiction were governed by International Shoe but argued that those involving in rem jurisdiction were still controlled by Pennoyer. The Court explained that both forms of jurisdiction equally involved power over the interests of a person. What kind of argument was being made?

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The Court was arguing that the distinction between in personam and in rem jurisdiction was a "distinction without a difference." There being no difference between the two categories, there was no jurisdiction for these categories being controlled by different rules. Then of course, in an argument that is analytically seperate (and not here cited), the Court decided that the rule of International Shoe should control both situations.

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In his dissent in World Wide VW v. Woodson (98), Justice Brennan explains that he "would...strip the defendant of an unjustified veto power over certain over certain very appropriate fora - a power the defendant justifiably enjoyed long ago when communication and travel over long distances were slow and unpredictable and when notions of state sovereignty were impractical and exaggerated. But...that is not today's world." (at 104) What is the nature of the argument he is making?

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He is arguing that personal jurisdiction ought now exists in circumstances in which it did not exist in the past...and he is making an argument "from" changed circumstances (or perhaps more specifically changed logistic circumstances and an improved understanding of state sovereignty).

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In his dissent in World Wide VW v. Woodson (98), Justice Brennan observes that the majority opinion "suggests that the defendant ought to be subject to a State's jurisdiction only if he has contacts with the State "such that he should reasonably anticipate being haled into court there." He objects that the argument "begs the question" (104, n. 18). Explain.

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He says that "a defendant cannot know if his actions will subject him to jurisdiction in another State until we have declared what the law of jurisdiction is..." He says that the majority is arguing that (1) a defendant is subject to personal jurisdiction if but only if he reasonably anticipated being haled into court in the forum state; (2) this defendant did not reasonably anticipate... (3) therefore this defendant is not subject to personal jurisdiction in the forum state. But, says Brennan, the truth of the premises (i.e., what constitutes a reasonable anticipation) depends on the truth of the conclusion and the argument is therefore circular.

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An example of a counter-argument against someone else's argument from history and in which it is asserted that history is or out not to be decisive (even if it is good history) - as found in Shaffer v. Heitner (1977) - is

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In Shaffer v. Heitner (1977), the Court acknowledged the long history of treating personal jurisdiction in in personam cases as controlled by the presence of the property in the forum state but said that was not decisive. "Traditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.

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My favorite example of an argument from a legal fiction, drawn from the law of personal jurisdiction, is

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Hess v. Pawloski (1927) (91), where the Court sustained personal jurisdiction against a nonresident defendant - under Pennoyer - on the ground that driving on the roads of Massachusetts constituted, without regard to actual facts, consent to being sued in that state.

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My favorite example of an argument that someone else's asserted distinction is a "distinction without a difference," this one drawn from Shaffer v. Heitner (1977), is

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The defendant admitted that cases involving in personam jurisdiction were governed by International Shoe but claimed that those involving in rem jurisdiction were still controlled by Pennoyer. The Court argued that the distinction between in personam and in rem was a "distinction without a difference" because both equally involved jurisdiction over the interests of a person. There being no difference, they should both be controlled by the same rule - which, by separate argument, the Court tells us in International Shoe.

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My favorite real-world example of an argument in the form "X cannot account for Y" is (from the personal jurisdiction chapter)

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In Shaffer v. Heitner (1977), the Court rejected the claim that Delaware's sequestration statute evidenced the state's interest in supervising the directors of Delaware corporations - in part because this proposed explanation could not account for the fact that the state law was drafted not to apply to the directors of Delaware corporations but to apply to any and all property within the state. If this had been it's purpose, the statute would have been both "underinclusive" and "overinclusive."

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In International Shoe (1945), what is the argument by which the majority attacks someone else's argument for "begging the question."

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A corporation is not a real person and its "presence" within a state can only be manifest by the activities of its agents. To say that a corporation is "present" within the state for purposes of the due process requirements related to personal jurisdiction within the state is "to beg the question to be decided" because the term "present" is used "merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process." And "those demands may be met by such contacts...as...make it reasonable" to require the corporation to defend itself within the courts of that state. (78-79) Let's stop fooling around with "presence" and just ask whether the contacts are sufficient.