Wednesday, September 19, 2007

Menken v. Emm (9th Cir. - Sept. 19, 2007)

This is a wonderful opinion. Especially for first-year law students, most of whom are currently struggling (or have just finished struggling) to understand personal jurisdiction during their first month of law school.

You don't see many published opinions on personal jurisdiction, so it's a great review. Plus, as typical for the Ninth Circuit, which applies the doctrine more than many other appellate courts, it discusses and applies the somewhat uncertain "effects test" at length. So it's an interesting -- and potentially helpful -- opinion from that perspective as well.

But what's most fascinating is Judge Bybee's concurrence. As most current (and former) law students recall from civil procedure, the typical constitutional personal jurisdiction inquiry is a two-pronged test: (1) see if the defendant has sufficient minimum contacts with the forum state, and (2) see if the exercise of jurisdiction would be fair in light of the burdens on the defendant, the forum state's interest in the dispute, etc. That has been the test for decades, and pretty much everyone agrees with it. Even people like Justice Brennan, who would prefer the second requirement to occasionally obviate the need for the first, have signed onto this test.

But Judge Bybee concurs exclusively to argue that the second requirement shouldn't matter -- that as long as the defendant has minimum contacts, it shouldn't matter whether the exercise of personal jurisdiction is fair. That, he says, is a matter best left to alternative doctrines such a forum non conveniens; and, presumably, the decision of a state court whether to exercise jurisdiction.

This is even farther than Justice Brennan would have gone, who could only hold in Burger King that usually when you have minimum contacts the exercise of jurisdiction would be fair. And it's directly contrary to the express holding of a unanimous Supreme Court in Asahi, which applied the second requirement to invalidate the exercise of personal jurisdiction by a California court even if the defendant had minimum contacts.

Judge Bybee admits at the end of his concurrence that he's "swimming against the tide" on this one. But he's not just swimming against the tide; he's throwing himself against a figurative tsunami of jurisprudence, and with an effort that doesn't do much more than merely fling his body and hope that someone picks him up. I think that if he really wanted to advance his cause on this point, he needed to do a lot, lot more than he does in this concurrence, which is pretty skimpy in its analysis of both precedent and various rationales behind the current rule.

For what it's worth, I also think that Judge Bybee is wrong on the merits. Sure, one could rely on state courts to apply forum non conveniens or other doctrines to constraint fundamentally unfair litigation. But what if they don't? What if, like some states, they don't adopt the doctrine? Or if they apply it, as many states do, in a very narrow and limited set of circumstances? Does this really mean that the Due Process Clause imposes no constraints upon fundamentally unfair litigation? Sure, you could say that it doesn't; that minimum contacts are sufficient alone to establish a state's power over a defendant. But this is not only a worse rule that the one we have now, but is also inconsistent with precedent, history, and purpose.

Judge Bybee's very bright. And, to his credit, feels free to both speak his mind as well as to view things in a different way, and sometimes to even stand alone. But, on this one, while interesting, his view is fairly clearly wrong. At least in my view. He's got much, much better potential judicial campaigns than this one. Which, as written, is both fairly facile as well as entirely unpersuasive.

So sayeth me, anyway.