Thursday audio--Section A, Section B. Essays ## 7 and 8 post at noon Monday, April 15 and are at 10 a.m. (Section A) and 2 p.m. (Section B) on Monday, April 22. Essay # 6 due next Wednesday.
On Consent as a basis for jurisdiction: While primarily about registering to do business, consent also would cover a contract case with a forum-selection clause; had the contract in BK had a clause that litigation would be in Florida, a court never would have reached Shoe--Rudzewicz consented to PJ through the contract. This generally does not happen, because a party under a contractual provision would never challenge PJ, unless he could argue the forum-selection clause is invalid. Then the court would have to analyze jurisdiction through some other basis (likely through a Shoe analysis).
Double Session tomorrow, with a 20-minute break between sessions.
We continue with Venue. Recall FN 6 in Atlantic Marine (the note is attached to the end of the first sentence of Part III.A).
Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. See Norwood v. Kirkpatrick.
• What is the difference between improper venue and change of venue--in terms of how they are raised, what they argue, and the appropriate remedy?
• What is the difference between § 1404 and forum non conveniens? How are they the same? What are the three steps in the analysis?
• Look at VOA: Is venue proper in ND Cal?
• Burger King is sued in the Southern District of Florida and the Middle District of Florida. How would the venue and PJ analyses differ in those two cases.
We then move to Erie, which I confess is my favorite part of the class. For tomorrow, prep Introduction and History, which will be all about Erie itself, then Modern Approach, which will be all about Hanna and the analytical framework that comes from that case. The Glannon reading and problems (pp. 193-211 and 213-32) will be really helpful in preparing and understanding this. Read § 1652 and §§ 2072 and 2074 very carefully and understand what they are about. Consider:
• What does the Rules of Decision Act say and mean?
• What was the issue in Erie and what were the different answers in federal court and state court under Swift? Who wins in Erie, given resolution of the choice-of-law issue?
• Erie overrules Swift in four steps--what are they? What is forum shopping and why is it problematic? What is the difference between "horizontal" forum shopping and "vertical" forum shopping?
• If a federal court must predict how the state supreme court would resolve an issue, what can it look to in deciding that?
• Under Hanna, what is the connection between the RDA and the Rules Enabling Act?
• What are the "twin aims of Erie?"
• What is procedure? What is substance? What are the 3 types of rules we might have under Hanna?
I hope to go through the framework in the two classes tomorrow. Then we will spend Wednesday and Thursday of next week working through a series of puzzles that show how this works.
