Law Commons^™

The Internet, Personal Jurisdiction, And Daos, Matthew R. Mcguire

Washington and Lee Law Review

Global connectivity is at an all-time high, and sovereign state law has not fully caught up with the technological innovations enabling that connectivity. TCP/IP—the communications protocol allowing computers on different networks to speak with each other—wasn’t adopted by ARPANET and the Defense Data Network until January 1983. That’s only forty years ago. And the World Wide Web wasn’t released to the general public until August 1991, less than thirty-five years ago. The first Bitcoin block was mined on January 3, 2009, less than fifteen years ago.

Legal doctrine doesn’t develop that fast, especially in legal systems heavily based around judicial …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

The Justiciability Of Cancelled Patents, Greg Reilly

Washington and Lee Law Review

The recent expansion of the Patent Office’s power to invalidate issued patents raises a coordination problem when there is concurrent litigation, particularly where the federal courts have already upheld the patent’s validity. The Federal Circuit has concluded that Patent Office cancellation extinguishes litigation pending at any stage and requires vacating prior decisions in the case. This rule is widely criticized on doctrinal, policy, and separation of powers grounds. Yet the Federal Circuit has reached (almost) the right outcome, except for the wrong reasons. Both the Federal Circuit and its critics overlook that the Federal Circuit’s rule reflects a straightforward application …

The Cost Of Doing Business? Corporate Registration As Valid Consent To General Personal Jurisdiction, Matthew D. Kaminer

Washington and Lee Law Review Online

Every state has a statute that requires out-of-state corporations to register with a designated official before doing business there, but courts disagree on what impact, if any, those statutes can or should have on personal jurisdiction doctrine. A minority of states interpret compliance with their registration statutes as the company’s consent to general personal jurisdiction, meaning it can be sued on any cause of action there, even those unrelated to the company’s conduct in that state. The United States Supreme Court upheld this “consent by registration” theory over 100 years ago, but since then has manifested a sea change in …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

Categorical Confusion In Personal Jurisdiction Law, Todd Peterson

Washington and Lee Law Review

In Part I, the Article discusses the history of the U.S. Supreme Court’s substantive due process limitations on personal jurisdiction and, in particular, the standards for corporate-activities-based jurisdiction before the Court’s recent cases on that issue. Part II discusses the Court’s failure to provide a convincing theoretical justification for imposing substantive due process limitations on personal jurisdiction. It also discusses the consequences of that failure in three doctrinal areas of personal jurisdiction law, the traditional basis of service on an individual in the forum state, specific jurisdiction and corporate-activities-based jurisdiction. Part III then analyzes in detail the four recent Supreme …

If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch

Washington and Lee Law Review Online

The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign …

The Case Against Federalizing Trade Secrecy, Christopher B. Seaman

Scholarly Articles

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing …

Brief Of Thirty-Four Law Professors As Amici Curiae In Support Of Appellants: Altera Corp. V. Papst Licensing Gmbh, Christopher B. Seaman

Scholarly Articles

The amici curiae are law professors who teach and write on civil procedure and/or patent law and policy. As such, amici are interested in the effective functioning of the courts and the patent system in general. Amici believe that this Court’s rigid rule restricting personal jurisdiction in patent declaratory judgment actions both flouts Supreme Court precedent and frustrates the public policy of clearing invalid patents. Although amici hold different views on other aspects of modern patent law and policy, they are united in their professional opinion that this Court should overturn its inflexible jurisdictional rule.

Personal Jurisdiction And The "Interwebs", Alan M. Trammell, Derek E. Bambauer

Scholarly Articles

For nearly twenty years, lower courts and scholars have struggled to figure out how personal jurisdiction doctrine should apply in the Internet age. When does virtual conduct make someone amenable to jurisdiction in any particular forum? The classic but largely discredited response by courts has been to give primary consideration to a commercial Web site’s interactivity. That approach distorts the current doctrine and is divorced from coherent jurisdictional principles. Moreover, scholars have not yielded satisfying answers. They typically have argued either that the Internet is thoroughly exceptional and requires its own rules, or that it is largely unexceptional and can …

A Tale Of Two Jurisdictions, Alan M. Trammell

Scholarly Articles

The Supreme Court has recently clarified one corner of personal jurisdiction—a court’s power to hale a defendant into court—and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is permissible. The traditional theory, general jurisdiction, authorizes jurisdiction when there is a tight connection between the defendant and the forum. The modern theory, specific jurisdiction, focuses more on the connection between the lawsuit itself and the forum. Although the two theories should have developed in tandem, the doctrine has become a …

Isolating Litigants: A Response To Pamela Bookman, Alan M. Trammell

Scholarly Articles

In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation. And it makes …

Torturous Transfers: Examining Detainee Habeas Jurisdiction For Nonremoval Challenges And Deference To Diplomatic Assurances , Kristin E. Slawter

Washington and Lee Law Review

No abstract provided.

Jurisdictional Sequencing, Alan M. Trammell

Scholarly Articles

Jurisdictional sequencing taps into fundamental questions about the nature and role of subject matter jurisdiction and what, if anything, a court may do before it has established jurisdiction. Because the Supreme Court has not rooted the doctrine in a clear theory, jurisdictional sequencing has engendered confusion among judges and scholars, who have been at a loss to explain it. Although a number of courts have embraced the leeway that the doctrine offers—the ability to dismiss a case on easier grounds before taking up harder jurisdictional questions—most scholars have criticized it as illegitimate or incoherent. This Article is the first to …

"Arise Out Of" Or "Related To": Textualism And Understanding Precedent Through Interpretatio Objectificata, "Objectified Interpretation"—A Four Step Process To Resolve Jurisdiction Questions Utilizing The Third Circuit Test In O’Connor As A Uniform Standard, Victor N. Metallo

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Girl Next Door: A Comparative Approach To Prostitution Laws And Sex Trafficking Victim Identification Within The Prostitution Industry, Gail M. Deady

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Collecting A Libel Tourist's Defamation Judgment?, Doug Rendleman

Washington and Lee Law Review

A libelplaintiffsued an American defendant in aforeign nation where he took advantage ofplaintiff-favoring defamation Law to obtain a heftyjudgment. He brings this judgment to the defendant's state in the United States to collect from her bank account. The defendant 's state's court could not have entered the plaint /ffs judgment because offirst-Amendment doctrines that stem from New York Times v. Sullivan. How should the U.S. court respond to the "libel tourist" and his judgment? This succinct Article summarizes the tangled tale that emerges. Invoking the First Amendment under a public-policy exception to comity, U.S. courts have rejectedforeign-nation defamation judgments. State …

Jurisdictional Discovery In United States Federal Courts, S. I. Strong

Washington and Lee Law Review

No abstract provided.

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Scholarly Articles

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states. This limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …

The Push To Criminalize Aggression: Something Lost Amid The Gains?, Mark A. Drumbl

Scholarly Articles

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Work- ing Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve inter- state armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the …

The Primary Jurisdiction Doctrine: Competing Standards Of Appellate Review, Aaron J. Lockwood

Washington and Lee Law Review

No abstract provided.

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Scholarly Articles

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray.A s a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Scholarly Articles

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches - which emphasize a website's "interactivity" and "target audience" - are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This Article argues that courts …

Congress Gave And Congress Hath Taken Away:1 Jurisdiction Withdrawal And The Constitution, Travis Christopher Barham

Washington and Lee Law Review

No abstract provided.

Script Kiddies Beware: The Long Arm Of U.S. Jurisdiction To Prescribe, John Eisinger

Washington and Lee Law Review

No abstract provided.

The Devil In Us. V. Jones: Church Burnings, Federalism, And A New Look At The Hobbs Act, Thomas Heyward Carter, Iii

Washington and Lee Law Review

No abstract provided.

Judicial Minimalism And The National Dialogue On Immigration: The Constitutional Avoidance Doctrine In Zadvydas V. Davis, Sanford G. Hooper

Washington and Lee Law Review

No abstract provided.

The Supreme Court's Plenary Docket, Margaret Meriwether Cordray, Richard Cordray

Washington and Lee Law Review

No abstract provided.

After Steel Co.: "Hypothetical Jurisdiction" In The Federal Appellate Courts, Joan Steinman

Washington and Lee Law Review

No abstract provided.

Ambassadorial Waiver Of Foreign State Sovereign Immunity To Domestic Adjudication In United States Courts, Andrew B. Pittman

Washington and Lee Law Review

No abstract provided.