1 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

2 Next Class Yeazell (Shaffer) (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 Optional –Glannon Ch. 2 (Statutes and the Constitution) & Ch 1 (Personal J)

3 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

4 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 were before WWVW), then what can defendant reasonably anticipate?

Cons v Manuf. In CA YesProbably Stream of Commerce Question Cons v Retailer in CA Yes Cons v Manuf. In OR Yes Cons v Distrib. In NV Probably Cons v Distrib. in CA Probably Cons v Manuf. In NV No Probably

6 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.

7 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

8 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 Ginsburg & Breyer opinions (easier)

9 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?