1. 1 Agenda for 23rd Class (FJ) Admin –Name plates –Handouts Slides Internet Jurisdiction 2011 Exam Exam info Personal Jurisdiction –Review of World-Wide Volkswagen –McIntyre (continued) –Burger King –Internet

2. 2 Assignment I Yeazell 91-103 (Shaffer) 139-47 (Burnham) Blackboard Questions –Personal Jurisdiction Q6 and Q7 Questions to think about /Writing Assignment –Briefly summarize Shaffer –P. 100ff Q3, 4 –Is jurisdiction proper in the following situation? Car accident in West Dakota Defendant is citizen & resident of California Defendant owns real property in West Dakota Plaintiff is citizen of West Dakota Suit in West Dakota state court West Dakota has the following long-arm 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 owns real property in West Dakota.” Remember to consider both whether there is statutory authorization for jurisdiction and whether jurisdiction is constitutional –Continued on next page

3. 3 Assignment II Questions to think about / writing assignment (continued) –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 –2011 Exam question II.4 Note typo. “delivery” should be “delivering Optional –Glannon Ch. 2 (Statutes and the Constitution) & Ch 1 (Personal J)

4. 4 Review of 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 plaintiff’s) World-Wide Volkswagen was NOT stream-of-commerce case –Car got to the forum (Oklahoma) because the plaintiffs drove it there NOT because it was sold by a distributor or retailer there –But dicta in WWVW discusses the stream-of-commerce A strict view of specific jurisdiction would say that there would NOT be jurisdiction over Audi or Volkswagen of America –They have contacts with Oklahoma, because they sell cars there –But those contacts are not (strictly) related to the Robinsons’ suit, because the car that caused the accident was purchased in NY –A less strict view of specific jurisdiction might say that the contacts were sufficiently related, because they sold the same kind of car in Oklahoma –Q. Are the contacts sufficient for stream-of-commerce jurisdiction under Asahi or McIntyre, even if car purchased in Oklahoma?

5. 5 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 be satisfied.

6. 6 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) –Not sure what rule should be, but clear that no j based on precedents –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 –“Count to 5”: Try to satisfy both Ginsburg & Breyer opinions

7. 7 McIntyre Questions 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? 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?

8. 8 Questions on Burger King & Internet Briefly summarize Burger King Yeazell pp. 117ff. Q1, 2 Suppose you buy Duck Boots mail order from LLBean and pay with a check. They send you the boots, but your check bounces. LLBean sues you in Maine, where it is headquartered. Does the Maine court have jurisdiction over you? Briefly summarize Revell Handout Problems 2-18 to 2-20