SelectedWorks @ Chapman University Dale E. Fowler School of Law
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The Persistent Problem of Purposeful Availment
No full textFor the second time in 25 years, personal jurisdiction has perplexed the Supreme Court. The problem is purposeful availment. All of the Justices agree that specific jurisdiction does not exist without purposeful availment, but the Court could not cobble together a majority opinion in J. McIntyre Machinery, Ltd. v. Nicastro stating what purposeful availment means or what it requires. This Article sets forth a simple — yet meaningful and necessary — solution. Purposeful availment is best understood by its negative. No court should find a non-resident defendant subject to personal jurisdiction for a contact with the forum state that the defendant could not reasonably prevent. Put another way, where it is not reasonably feasible for a defendant to sever its connection with the state, purposeful availment does not exist. Conversely, where it is reasonably feasible for a defendant to prevent its contact with a state but it has not done so, there is presumptively purposeful availment and, subject to the fairness balancing, specific jurisdiction. This principle is consistent with the understanding reached by the Court more than 25 years ago and shared by a majority of the current Justices that personal jurisdiction is an individual liberty interest that is protected by the Due Process Clause. Because it is an individual liberty interest, the purposeful availment requirement must be applied in such a manner that a potential defendant can structure [its] primary conduct so as to avoid subjecting itself to jurisdiction in a disfavored forum. Application of this principle leads to a clear, but certain to be controversial, resolution of several questions left unresolved by the Court in McIntyre v. Nicastro. It also makes clear that Nicastro was itself wrongly decided. First, component part manufacturers generally do not control the distribution and point of sale of the end product into which their component part is incorporated. Thus, absent some additional conduct targeting the forum state, component part manufacturers do not purposefully avail themselves of a particular state where the end product is sold, even where there is a regular flow of a large quantum of the component parts into that state. Second, end product manufacturers retain nearly complete control over the initial point of sale of their products. Thus, an end product manufacturer has purposefully availed itself of every state where the product is sold to consumers — even where the manufacturer sold the product to a distributor who sold the product to a retailer who sold the product to a consumer. Third, a manufacturer who markets its product nationwide has purposefully availed itself of every state where the product is sold and causes injury
The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience
No full textWith its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation
Originalism in Practice
No full textOriginalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits of originalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in practice, it provides a genuinely originalist vehicle for deciding real cases – that is, deciding cases by reference to the meaning of constitutional text as historically fixed at the time of framing and ratification when nonoriginalists would decide them otherwise. Yet, the scholarly literature to date makes no effort to address that question. This article aims to fill this gap by assessing how originalist interpretations of the Constitution fare in practice. In light of the ascendency of originalism, this article offers what may seem a surprising claim – when originalist arguments are actually deployed in real-world litigation, they rarely prove able to provide an approach to constitutional adjudication meaningfully different from nonoriginalism.
Nonoriginalists, no less than originalists, regard constitutional text as binding. The nonoriginalist claim is that the broad, open-ended provisions of the Constitution are properly construed to have evolving content. Originalists, for their part, grant that the Constitution contains much vague or ambiguous text, even when assessed in light of its original semantic meaning. Some originalists rely on framing-era practice or understandings to reduce the scope of textual vagueness or ambiguity subject to nonoriginalist construction, but in practice, this approach is deeply problematic. There is no authentically originalist methodology for evaluating claims that changed circumstances render reliance on framing-era practice or understandings – that is, the original expected applications of constitutional text – obsolete or irrelevant. Other originalists embrace a semantic form of originalism that treats the original meaning of text as binding only at the level of generality found in the text itself. In practice, however, this approach is indistinguishable from nonoriginalism.
The paper concludes with a survey of recent, ostensibly originalist decisions of the United States Supreme Court confirming that in reality, these decisions consistently turn on nonoriginalist considerations. Originalist adjudication is rather like the Loch Ness Monster – much discussed, but rarely encountered
Lessons from Positive Psychology for Developing Advocacy Skills
No full textAdvocacy skills are crucial to law students and lawyers. One of the ways law students develop those skills is in the context of lawyering skills competitions. This article explores whether there is any psychological research that might offer more systematic guidance for advocacy coaches and instructors. Positive psychology does offer some principles that suggest useful approaches to coaching and teaching advocacy. Taken together with instinct and experience, these principles can help coaches and advocacy instructors be more effective in training young lawyers for litigation and dispute resolution practice
Batterers as Agents of the State: Challenging the Public/Private Distinction in Intimate Partner Violence-Based Asylum Claims
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