The Catholic University of America Columbus School of Law
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Personal Jurisdiction and the Fairness Factor(s)
Full text linkIt has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington, yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Roberts Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court, a case decided in 2021 that addressed an issue related to specific jurisdiction. What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation’s registration to do business constitutes consent to personal jurisdiction in that state. This consent issue is particularly divisive in states like Georgia and Pennsylvania—where jurisdiction via registration is expressly provided for by statute. Indeed, over the past two years the Supreme Court of Georgia upheld the exercise of consent jurisdiction in Cooper Tire & Rubber Co. v. McCall, while the Supreme Court of Pennsylvania struck down its statute as unconstitutional in Mallory v. Norfolk Southern Railway Company. The conflicting decisions in McCall and Mallory have now teed up the consent-by-registration question for the U.S. Supreme Court.
Under International Shoe’s bifurcated test, personal jurisdiction over nonresident defendants comports with due process when the defendants have sufficient minimum contacts with the state and the exercise of jurisdiction is fair or reasonable. Until recently, the Roberts Court’s personal jurisdiction jurisprudence relegated the fairness prong of this test to, at most, an afterthought. However, Ford bucks that trend, providing hope that courts will once again turn to fairness considerations when making tough calls on jurisdiction. Using Ford as a launching pad, this Article argues that fairness—specifically, the fairness factors first articulated in World-Wide Volkswagen Corp. v. Woodson—should be part of every jurisdictional calculus, whether the plaintiff is relying on specific jurisdiction, general jurisdiction, or one of the traditional grounds for personal jurisdictional such as consent by registration. Applying a uniform methodology to the flexible due process standard will improve the consistency and predictability of personal jurisdiction determinations over time, while still allowing courts to decide these questions on a case-by-case basis
Private Caregiver Presumption for Elder Caregivers
Full text linkThe percentage of older Americans increases each year, with a corresponding percentage increase of those considered the older old. Many older persons will develop chronic conditions, decreasing their ability to manage the activities of daily living and requiring many to move into assisted living facilities or group homes. When surveyed, a majority of people expressed that they wish to age in their own homes, and government programs are increasingly supportive of this option. This is a viable option for many if they have the assistance of private caregivers—who provide a vast array of support services—and essential person-to-person human contact during the last years of life. Not all caregivers are family; many are friends, partners, and former colleagues. Whether family or nonfamily, private caregivers often provide a recipient with selfsufficiency for many years, and for some until death.
This Article discusses the statistics of aging and the obstacles faced by private caregivers who suffer economic deprivation as a result of the time and expense expended on behalf of an elder recipient. Presumptions, statutes, and the process of estate devolution work against compensation for a private caregiver. There is far too little recognition of what is contributed when a person feeds, bathes, administers medications, provides companionship, and confronts the bureaucracy meant to help the old. The common sentiment of all caregivers would be that they do it because they feel they must. But upon the death of the recipient, one person should not walk away with the benefits of the decedent’s estate and the other with nothing except the recognition of what they must do and did.
To better provide for the equal treatment of private caretakers, this Article posits the creation of a private caretaker presumption in favor of elder caregivers. This presumption would apply to any person who dedicates himself or herself another’s care for a period of time sufficient to engender economic benefit to the recipient’s estate and a concomitant loss to the caregiver. Then, based upon the estate assets available, the parameters of the claim, and defined mitigating factors, a presumption is raised that the caregiver may file a creditor claim against the estate in an amount that would make the caregiver equal to the other objects of the decedent’s bounty. Existing remedies are insufficient; more is needed to promote equity
America’s Two Pastimes: Baseball and Constitutional Law; Review of Adrian Vermeule, \u3ci\u3eCommon Good Constitutionalism\u3ci\u3e
Full text linkFor the last 50 years, the two prevailing constitutional interpretation methodologies have been Originalism and Living Constitutionalism. The former treats the Constitution almost like a contract and demands that interpreters focus on the ordinary contemporary understanding its terms would have received when they became law. The latter treats the Constitution as a charter for the structure of a new government that would survive and mature as needed to protect both the nation and its people as new threats to government and civil liberties arise. Professor Adrian Vermeule’s book Common Good Constitutionalism offers a new approach to constitutional interpretation, one that gives far greater prominence to the need to protect and advance the good of the nation as a whole than either of the other two theories would require. His theoretical justification for the new approach stems from the classical or natural law principle that a nation may demand that its interests outweigh those of any individual or group. He criticizes Originalism as a morally sterile, positivistic approach to legal interpretation, and Living Constitutionalism as concerned only with the interests of individuals and groups without regard for those of the polity.
Professor Vermeule, however, does not give sufficient weight to what the Constitution did—viz., create a democratic republic whose elected representatives would make moral judgments—than what a court may do when reviewing their work. He also fails to address a goodly number of issues that any new theory of constitutional interpretation must address to serve the role that he posits for Common Good Constitutionalism. He does not give adequate weight to the rationale endorsed in Marbury v. Madison that it is the text that governs, not background principles, however weighty they might be. He does not address how his theory affects antidiscrimination law, the application of the Bill of Rights to the states, or principles of stare decisis. In sum, Common Good Constitutionalism, while valuable, is better seen as a codicil to Originalism (to which it is closer than Living Constitutionalism) than as an entirely new, different will
“Recommend . . . Measures”: A Textualist Reformulation Of The Major Questions Doctrine
Full text linkFollowing Biden v. Nebraska, defenders of the major questions doctrine (which requires administrative agencies to identify “clear congressional authorization” to regulate “major” issues) can be categorized as falling within one of two camps. The first camp includes Justices Gorsuch and Alito, who view the major questions doctrine as a substantive canon. The second camp includes Justice Barrett, who explained in Nebraska that she is “wary” of adopting new substantive canons, and indicated that she considers the major questions doctrine to be a linguistic canon. Interestingly, both camps have relied on an influential scholar to advance their positions: then Professor (now Justice) Barrett. This Article will therefore also work within Justice Barrett’s scholarly framework, but will do so to make two points. First, that textualists have reason to object to both the substantive and linguistic conceptions of the major questions doctrine that are currently on offer. And second, that the major questions doctrine can be reformulated into a new substantive canon that textualists can embrace
The \u3ci\u3ePanuwat\u3ci\u3e Snowball: Correlation Does Not Equal Materiality
Full text linkInsider trading is a term of art referencing the fraudulent practice of trading securities in a company on the basis of material, nonpublic information about that same company in breach of some duty owed to another. The practice erodes the public’s trust in the integrity of our capital markets for a reason that is rather intuitive: it is inherently unfair to allow an individual to make a quick and certain profit by exploiting material, nonpublic information to which he privy due solely to his position in a company or some other relationship of trust and confidence. In this context, unrelenting civil enforcement by the Securities and Exchange Commission (“SEC”) is surely warranted. But, what if an individual in possession of material, nonpublic information about one company trades in the securities of a different company? Is a civil enforcement action warranted in this context? This question is derived from the novel “shadow trading” theory of insider trading liability proffered by the SEC in its August 2021 civil enforcement action against Matthew Panuwat.
Judicial endorsement of the SEC’s shadow trading theory presents concerning doctrinal and practical implications. First, it upends the traditional materiality inquiry required in an insider trading action. Second, it transforms Rule 10b-5—the SEC’s primary enforcement mechanism—into a rule without limitation. Third, it will increase the cost of executing securities transactions as investors in possession of material, nonpublic information about one company could be required to abstain from trading in an endless list of companies, industries, and investment vehicles. Taken together, these considerations compel the rejection of the SEC’s shadow trading theory of insider trading liability
