Agenda for 31st Class
• Slides
• Exam
– 2 new arguments against take home
• Disadvantage to poorer students who don’t have quiet place to study
• Incentives to cheat greater for 1Ls
– 4 hour in-class?
• 4 hours is the longest in-class exam I can give
• Personal Jurisdiction:
– World-Wide Volkswagen (review)
– McIntyre
1
Next Class
• Yeazell 91-103 (Shaffer) 139-47 (Burnham)
• Questions to think about /Writing Assignment
– Briefly summarize Shaffer
– P. 100ff Q3, 4
– Questions on the next slide
– Briefly summarize Burham
– Do you think jurisdiction based on presence makes sense? Should it be
constitutional?
• How far would you extend jurisdiction based on presence? In
answering that question, consider:
– Pp. 145ff Q 3
– Grace v. MacArthur, summarized on slide 5 of Class 17 handout
– Given that Burnham is now established law, how do you think courts
should resolve the cases described in
• Pp. 145ff Q 3 Grace v. MacArthur, summarized on slide 5 of Class 17
handout
2
• Optional –Glannon Ch. 2 (Statutes and the Constitution) & Ch 1 (Personal J)
Statutes & the Constitution
• Facts
– Car accident in West Dakota
– Defendant is citizen & resident of California
– Defendant owns real property in West Dakota
– Plaintiff is citizen of West Dakota
• Is jurisdiction proper if West Dakota has the following statute:
• “West Dakota trial courts may exercise jurisdiction on any basis not
inconsistent with the Constitution of the United States.” (West Dakota
Statute I)
• Is jurisdiction proper if West Dakota has the following statute:
• “West Dakota trial courts may exercise jurisdiction over an individual only
if that individual is a resident or citizen of West Dakota.” (West Dakota
Statue II)
• Is jurisdiction proper if West Dakota has the following statute:
– “West Dakota trial courts may exercise jurisdiction over an individual only
if that individual is a resident or citizen of West Dakota or if the individual
own real property in West Dakota.” (West Dakota Statue III)
• Remember to consider both whether there is statutory authorization for
jurisdiction and whether jurisdiction is constitutional
3
World-Wide Volkswagen
• Forseeability is not enough; Purposeful availment requires more
– Jurisdiction cannot be established by plaintiff’s actions (driving car to
Oklahoma)
– Minimum contacts focus on defendant’s actions (not plaintiffs)
• Jurisdiction if “defendant’s conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court there” (pp.
100)
– When should defendant “reasonably anticipate” being sued in forum?
• That depends on Supreme Court precedent
• If precedents said that defendants can be sued wherever their
products cause injury (as EU law states), then it would be reasonable
for NY car distributor to anticipate being sued in Oklahoma
• If precedents say that distributors can only be sued where they sold
their product, then it would NOT be reasonable for NY distributor to
anticipate being sued in Oklahoma
• If precedents are ambiguous or nonexistent (as they largely were4
before WWVW), then what can defendant reasonably anticipate?
Cons v
Manuf.
In CA
Yes
Probably
Cons v
Retailer
in CA
Cons v
Manuf.
In OR
Yes
Probably
Stream of Commerce
Question
Yes
Yes
Yes
Yes
Stream of Commerce
• Product manufactured in A, sold to distributor in B, and sold to consumer by
retailer in C
• White dicta in World-Wide Volkswagen (stream of commerce)
– There is jurisdiction over mfg in C, if sale is “not simply an isolated
occurrence, but arises from the efforts of the mfg or distributor to serve,
directly or indirectly the market for its products” in C
• O’Connor plurality opinion in Asahi (1987) (stream of commerce plus)
– Jurisdiction over mfg in C if White’s criteria satisfied AND “additional
conduct of the defendant [indicates] an intent or purpose to serve the
market” in C, e.g.
• Designing the product for C
• Advertising in C
• Establishing channels for providing regular advice to consumers in C
• Marketing product through distributor who has agreed to serve as the
sales agent in the forum state
– mfg has direct contractual relationship with retailer in state C?
• No majority opinion on stream of commerce in Asahi
– Majority agreed that no jurisdiction in California over indemnity suit
between foreign manufacturer and foreign part supplier, when California
plaintiff had settled with foreign manufacturer, because inconsistent with
“fair play and substantial justice,” even if purposeful availment could 6be
satisfied.
McIntyre Questions
• Briefly summarize McIntyre
• Yeazell pp. 131ff Qs 1- 4
• How would McIntyre have been decided under White’s view of
the “stream of commerce” theory as expressed in his opinion in
World-Wide Volkswagen
• How would McIntyre have been decided under O’Connor’s
“stream of commerce” plus theory
• How is Kennedy’s view of jurisdiction based on the “stream of
commerce” different from White’s and O’Connor’s? In what
cases would they reach the same result? In what cases
different results?
• Questions on the next page
7
McIntyre
• McIntyre. Kennedy plurality (joined by Roberts, Scalia & Thomas)
– Jurisdiction over mfg in C if White’s criteria satisfied AND defendant
“targeted the forum”
– Not sufficient to show intent to serve US market generally, must show
intent to serve New Jersey market specifically
• McIntyre. Breyer concurrence (joined by Alito)
– Single isolated sale is not enough. Consistent with White dicta in WWVW
– Also notes that no design, advice, marketing, or advertising for forum, so
no jurisdiction according to O’Connor’s “stream of commerce plus”
approach
• McIntyre. Ginsburg dissent (joined by Sotomayor & Kagan)
– Jurisdiction over mfg in C if mfg set up distribution network to serve
whole US and product actually sold in C
• Since no majority opinion, no controlling precedent
– Can only try to predict how future cases will come out
– Try to satisfy both Kennedy & Breyer opinions (harder) OR Ginsburg8&
Breyer opinions (easier)
McIntyre Questions (continued)
• Suppose the California courts and juries are relatively generous to product
liability plaintiffs, but Nevada courts and juries are relatively stingy. A
Chinese company which is breaking into the US market is considering two
distributors, one based in California and another based in Nevada. The two
distributors seem roughly equal in quality and price. Which distributor would
you advise the Chinese company to select. Why?
• Suppose Washington state is suffering from high unemployment. Its
legislators would like to find a way to expand employment by encouraging
Chinese manufacturers to choose distributors based in Washington state.
You are an adviser to a Washington state legislator. What changes would
you suggest that Washington state make to its laws?
• If you were on the Supreme Court, in what situations would you allow those
injured by products to sue the manufacturer? Would you adopt White’s
Stream of Commerce theory? O’Connor’s Stream of Commerce plus?
Kennedy’s theory in McIntyre? Some other rule?
9