Legal Education & Scholarship

Courts in the United States today address the constitutional permissibility of personal jurisdiction by discussing two sub-types, "specific jurisdiction" and "general jurisdiction." "Specific jurisdiction" may exist "in a suit arising out of or related to the defendant's contacts with the forum." "General jurisdiction" may exist "in a suit not arising out of or related to the defendant's contacts with the forum."Over the past few years, courts have begun to address whether maintenance of a business oriented web site that is accessible to and used by residents of a state can be a sufficient anchor for the constitutional assertion of general jurisdiction in that state. At the level of the United States Courts of Appeal, a split of authority is developing. The D.C. Circuit in Gorman v. Ameritrade Holding Corp and the Ninth Circuit in Gator.com Corp. v. L.L. Bean, Inc., have held that the answer is yes, with Gator.com labeling L.L. Bean's web site a "virtual store." The Fourth, Fifth, Sixth, Tenth, and Federal Circuits, all after relatively short discussions, have held that the answer is no, at least on the facts before them.
This article argues that the Gorman and Gator.com were improvident and wrongly decided, that general jurisdiction over virtual stores is inconsistent with any principled development of the law of general jurisdiction. 
The article will conclude with a call for the courts of appeals to abandon the concept of general jurisdiction over virtual stores or for the Supreme Court to take up the issue and provide some much-needed guidance on the constitutional limitations of general jurisdiction.

This article examines how blogging has developed and considers the ethics of blogging and its impact on the legal profession. It examines blog entries from lawyers, law professors and law students and suggests that the rules of the Bar may be colliding with the manner of online storytelling occurring by legal professionals. The article takes an in-depth look at how blogging has impacted legal education and the relationship between faculty and students. It proposes ways in which incorporating blogging assignments into law school courses can assist students in developing ethical story-telling on web logs.

The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal change but no detailed evaluation of the survey's quality exists. This article presents evidence that the survey is substantively inaccurate and methodologically flawed. It incorrectly characterizes state law; respondents provide less than 10% correct answers for objectively verifiable responses. It is internally inconsistent; a state threatened with judicial hellhole status ranked first in the survey while venues not on the list ranked lower. The absence of correlation between survey rankings and observable activity suggests that other factors drive the rankings. Two factors may help explain them. First, persistent low ranking of Gulf Coast states indicates that corporate counsel cannot shed hostility to states that were prominent in asbestos and tobacco litigation, notwithstanding changes in state laws. Second, low rankings of populous states suggest respondents fail to distinguish between rates of events and the absolute number of events. Adverse events in large states may occur more often but not necessarily at higher rates than in small states. The Chamber's uses of the survey fail to account for the sample design, fail to account for the same respondent rating multiple states, fail to account for industry effects, and fail to distinguish among respondents based on their knowledge of a state. The survey may discourage investment in the U.S. and corporate risk managers' views suggest that the survey promotes corporate behavior that needlessly endangers the public.

Sometimes an individual, unsuccessful in one lawsuit, will commence another legal action involving essentially the same issues and parties. However, applying the doctrine of collateral estoppel prevents a party from relitigating an issue which has already been decided by the courts involving the same parties and issues. ... [T]he doctrine may apply to bar relitigating issues decided by administrative agencies if those decisions are "quasi-judicial" in nature. According to the ruling, an administrative agency is quasi-judicial in nature if it is given express statutory authority to act adjudicatively.\nIn contrast, if an agency only invokes its executive powers under the governing statute in making its determination, it is not exercising "quasi-judicial powers." ... [C]hallenging the administrative agency's decision in court in situations where the agency did not arrive at its decision as a result of its acting in an adjudicative or judicial capacity would not be barred under the doctrine of collateral estoppel. ...

Reporters Committee for Freedom of the Press

Elon University

Published by the North Carolina Attorney General's Office and the North Carolina Press Association

Protecting defendants from being forced to litigate in unfair (i.e., unduly burdensome or inconvenient) forums has long been a limiting principle in the exercise of federal judicial power. Rules governing federal service of process and venue play a critical role in providing this protection, as they are the initial means by which plaintiffs select the place of trial. Surprisingly, the courts and the academy have expended comparatively little analytical energy to analyze how well these rules protect defendants from litigating in unfair locations. Utilizing first principles of rule precision and information analysis not previously applied in this context, this Article asserts that the rules governing federal service of process and venue largely fail in this task. By focusing on the connections between the defendant and the state in which the federal district court sits, venue and service of process rules call for limited information that ultimately provides a poor proxy for federal forum fairness. The crudeness of this proxy could more easily be excused if it provided a substantial benefit in the form of administrative simplicity. Unfortunately, the current regime is nothing if not baroque, consisting of a maze of rules, tests, and standards that elicit information which is, ultimately, a highly imprecise approximation of a defendant's ability to litigate in a particular location. Though perfection is impossible, we can certainly do better. Accordingly, courts and scholars should end their attempts to refine the current tests in the hopes of better scrutinizing suboptimal information. Instead, this Article proposes both a reevaluation of the information used to determine forum fairness, and a reassessment of whether courts or litigants are in the best position to optimally use this information.

Is a statute that establishes federal question jurisdiction over cases with nondiverse parties and involving pure state law claims constitutional? "The absence of diversity (and any other apparent article III ground for jurisdiction) looks like an embarrassment to the principle that Congress may not augment the jurisdictional scope of article III. Nevertheless, courts have [tacitly] approved Congress's authority to place all [civil] suits" arising out of "transactions involving international or foreign banking" or "out of other international or foreign financial operations" in the federal courts.

The Edge Act of 1919 provides a basis for original federal district court jurisdiction over the two types of suits mentioned above; any defendant named in such a suit may remove the suit from state court to federal district court. Depending on how broadly a federal court interprets the provisions of the Edge Act, the Act could provide a jurisdictional basis for suits that ordinarily have no business being before a federal court, such as suits involving pure state law claims without any diversity of citizenship. This result has been borne out in several recent court decisions that have involved the extension of federal question jurisdiction under the Edge Act to state law claims of wrongful termination in violation of state public policy, breach of contract, fraud, and intentional infliction of emotional distress.

Scholars and courts have been divided on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the president can supervise administrative agencies is key to arguing that agency action is legitimate, because the president's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimize, an agency action. The reality is that presidential supervision of agency rule making, at least, appears to be both significant and opaque. This paper presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated with high levels of changes in agency rules. Further, the paper documents the comparative silence regarding the effect of that supervision. Neither OMB nor the agencies generally report the content of supervision by presidential offices; nor do they report whether a particular agency decision is consistent with presidential preferences. Silence about content, the paper suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state. The paper then argues for greater transparency. Agencies should be required to summarize executive influence on significant rule making decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to "political reasons" in reviewing a particular agency action. Finally the paper suggests that some, but not all, "political reasons" for agency action are legitimate, but that only a more transparent system - by facilitating public dialogue and accountability to Congress - can fully resolve the question of which reasons are legitimate and which are not.

Given Justice David Souter's retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law. This Article provides a comprehensive survey and summary of the Supreme Court's administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access to the federal courts, covering issues such as standing, jurisdiction, causes of action, statutes of limitation, and exhaustion of administrative remedies. Part II presents the Roberts Court cases that have addressed federalism and the Supreme Court's role in defining the relations between and the respective authority of the state and federal governments, including the imposition of Due Process requirements on states, dormant Commerce Clause limitations on states, federal preemption of state law, and the increasing role of federalism concerns as a factor in the Court's statutory interpretation. Part III summarizes those decisions that give insights into the Robert Court's perspective on the "proper" role of the federal courts in a tripartite federal government, covering issues such as constitutional interpretation, the Court's interactions with Congress, federal court review of federal agency actions, and Chevron deference. While acknowledging that these decisions do not allow for any absolutely consistent principles to be discerned, this Article nevertheless concludes that a strong majority of the Justices are quite comfortable with the Court's roles as constitutional interpreter and as constitutional mediator between governments and citizens and between states and the federal government. However, an admittedly weak

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