For a great many students Civ Pro is the most challenging course of 1L. While everyone's got there own approach I wanted to share the one I used as well as somethings I wish I had known about when I was in Civ Pro that I now tell other newly minted 1Ls. But I'm only one voice I hope there are others who can share there Civ Pro recommendations.
New Online resources:
1) Quimbee https://www.quimbee.com/
The Quimbee website (named after the Simpson's Mayor Quimbee) is relatively new and I think it is best for case briefs. It's a subscription site but compared to buyingbooks it can save you some money (of course when it first launched it was very affordable. They also have videos or lectures which are okay but the production could be better and more entertaining. While I am not a fan of their videos it does break things up if you need a relief from text or casebook reading. However, I do think that quimbee's questions and answers can be helpful.
2) My Law Academy https://www.mylawacademy.com
This is an awesome new site that I wish was available when I was in law school. The cool thing about it is how clear the videos make civ pro concepts - which is almost an impossible task that they do pretty well. The website is still in its infancy and it would be nice if they covered other courses but for Civ Pro its worth checking out. I think that the strength of these videos is that they can save you time in helping you to understand civ pro concepts faster since they are presented from an exam context. One of the toughest things about civ pro is the time it takes to put all of the little pieces together into a working big picture system and this site does it best.
Old Tricks:
1) A good previous outline
This is no big secret to most TLSers but I can't stress how important it is to have a previous outline for your specific civ pro professor. A generic outline for civ pro is especially problematic because this is an area of law where professors tend to take varied opinions on doctrinal concepts. Areas of law like 12(b)(6) and the Erie Doctrine can be hot beds for controversy among legal scholars (i.e. professors) and a strong previous outline will tell you where your professor stands on the topics or areas of law in advance of even hearing them during class so that you can prepare in advance and be ready to take practice exams earlier. If you are having trouble finding a good outline checkout Outline Depot http://www.outlinedepot.com/. Because it cost money I would suggest being more social with 2Ls and 3Ls but if the professor's material is hard to find you might want to check out this site.
2) Acing Civ Pro http://www.amazon.com/Acing-Civil-Proce ... 1628100419
Of the acing series this text is by far the most helpful. I make this point because I do not mean to recommend Acing for all courses but for Civ Pro I think it is a gem. I like it because it is concise and does a lot of the heavy lifting needed to understand how several civ pro rules tie together so that you can see the big picture. The best thing about Acing is the checklist at the end of each brief chapter. It's awesome. At first glance acing will seem like its just too small to be helpful for a class like civ pro and its never ending rules, but don't be fooled you will love Acing and it will safe you time.
3) Civ Pro E&E
ISBN13: 978-1454815488
People rave about E&E's but I am selective about them. For instance, I don't like the E&E for contracts and I prefer another supplement I believe is superior. However, for Civ Pro there is not yet a better book supplement on the market for getting exam practice and learning how to string the rules together into a comprehensive exam analysis. I think that it is best to begin using the E&E early in the semester. Most students wait too far down the road to begin using the E&E. I think it is best to read the relevant E&E chapters as they are discussed in class so that you can develop exam skills in real time with class coverage.
Let's Talk Civ Pro Study Approach Forum
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Shema
- Posts: 96
- Joined: Sat Jun 01, 2013 3:14 am
Re: Let's Talk Civ Pro Study Approach
Pennoyer is one case that annoys everyone in Civ Pro. While a lot of students that have taken Civ Pro will say that the case is useless when you are a 1L in class it doesn't feel that way. Here are some pointers in analyzing and approaching the case that should help you not be as confused about the case in class.
Big Picture
Pennoyer is like that one time, well the only time, when my soccer team won a game which was because our coach failed to notify the other team that there was a game so our team won by a landslide forfeit. Well the Supreme Court thought that a plaintiff shouldn’t win a case if the other party didn’t know there was a law suit. So in Pennoyer, for the first time in its history, the Supreme court explained how the Constitution’s Due Process Clause of the 14th Amendment protects against Personal Jurisdiction problems like the one in Pennoyer.
Facts of the case
Come take a walk with me down memory lane and let me introduce you to the facts of the case. If you already know the facts just skip ahead to the analysis.
Like all epic Westerns this case begins on the Oregon trail. A pioneer cowboy by the name of Marcus Neff arrived in Oregon in the middle of the 1800’s to take advantage of Congresses new law. Congress promised to give away land that it had rightly stole from native American tribes to any white settlor willing to risk their hide to begin a life on the edge of the great western frontier.
With no access to legal zoom, Neff did the next best thing and hired an attorney, one John Mitchell. Mitchell took care of the legal details and paperwork in getting the land grant for Neff. For his laborious legal services he charged $300. Not one for keeping his word, Neff did in fact get the land grant from congress but he didn’t pay Mitchell the $300 he owed in legal fees before hitting the trail again for California. You know, first stop pick up some free Indian land next stop California gold rush… I digress.
Well Mitchell did what attorneys do. He sued Neff in an Oregon state court. And because Neff was god knows where in California Mitchell had the brilliant idea to let Neff know he was being sued by placing a notice in the local Oregon News Paper. It’s hard to imagine how Neff managed never to learn that he was being sued but it could have had something to do with the fact that the Oregon Times didn’t circulate in California. I don’t know, just a guess… As a result Mitchell won the case by default judgment. Default judgment is just Civ Pro jargon for winning the case because the other side ignores the lawsuit. So here’s Mitchell with a paper or judgment that says he is entitled to $300 while Neff is living it up in the sunshine state with little intent to pay the debt owed. What’s a settlor to do? Just as it did in the mid 1800’s, our legal system has a remedy for Plaintiffs stuck with judgments and no real prospect of payment. It’s called the public auction. The court seizes property within the state it sits in and auctions it off to the highest bidder. Then with the proceeds the Plaintiff is paid and happy as a kitten in a fishbowl.
To his luck, Mitchell happened to know of prime realestate owned by Mr. Neff that could be auctioned and with its value of $15,000 could comfortable pay the $300 debt. Never a man to miss a golden opportunity, on the day the property was auctioned being the only person who showed up, Mitchell put in a bid for exactly $300. Seeing that there was no higher bid Mitchell won the auction against himself. After Mitchell’s successful bid he is given a deed to the property by the Sheriff. The Sheriff takes the $300 spoils from the auction and gives the funds over to the court. Mitchell high tails it to the court to pick up the $300 judgment owed to him. Isn’t that cool Mitchell got real estate worth 15,000 and got to keep the $300 he paid for it. I mean with the cost of law school its hard to judge the guy.
Mitchell, puts the place up for sale and a poor unfortunate soul by the name of Sylvester Pennoyer has the unforeseen fate of buying the land that will soon become the dreaded case of every 1L. A few years later, on a trip home to unwind in that beautiful Oregon country, Neff returns to his castle only to find his iron throne has an unexpected occupant claiming ownership free and clear. Outraged and feeling violated Neff appeals the state courts decision with the federal or circuit court in Oregon. The circuit court sides with Neff and returned him to his rightful place on the throne.
The appeals court reason for siding with Neff was rather technical and narrow. According to the appeals court Mitchell didn’t give a statement under oath (what’s called an affidavit) before publishing notice of the law suit in the Oregon News Paper.
Pennoyer took his case to the Supreme court and to his utter dismay the justices sided with appeals court but, and there’s always a but in law school, the Supreme Court sided with Neff and appeals court for a different set of reasons.
Case Analysis/Reasoning
Here’s the type of legal analysis your professor will be looking for in class and on the exam. (Although Pennoyer is rarely ever tested)
You see, your professor want’s you to analyze whether the state court, that gave or granted Mitchell the default judgment for $300, had valid personal jurisdiction over the Defendant Neff. Because if the court did not have jurisdiction then it should not have given Mitchell the default judgment. Without a valid default judgment Mitchell’s sheriff’s deed to Neff’s land and the sale of property to Pennoyer are both invalid. The tricky thing about Pennoyer is that whether Neff get’s his land back has more to do with the First law suit with Mitchell than it does with Pennoyer. So pay attention to the fact that most of our analysis is on the validity of Mitchell’s case even though the case before the Supreme Court is called pennoyer.
The Supreme court said that in order to have valid personal jurisdiction over a defendant certain Constitutional requirements must be satisfied. One of the requirements is the Due process clause and the other is the Full Faith and Credit Clause.
First let’s check out the Due Process Clause. The due process clause is all about being fair. It’s only fair that if you’re gonna be able to sue someone for money or property then you should let them know you’re suing them. The Due process clause calls this notice. Also, you should give the Defendant a chance to present their side of the story in court. The Due Process clause calls this an opportunity to be heard. When both the notice prong and the opportunity to be heard prong are satisfied then the due process clause requirement is met.
The problem in Pennoyer is that Mitchell didn’t satisfy the notice prong of the Due Process requirement. You see, you give someone notice of a law suit by giving them a copy of the complaint or lawsuit you have against them plus a copy of the summons which is a document that symbolizes the court’s power over the Defendant. The delivery of the copy of the complaint and summons is called service of process.
Depending on the type of jurisdiction that the court’s power over the defendant is based on, service of process must be made either personally (person to person) or constructively (like publishing it in a news paper). But whether you can complete service of process personally or constructively depends on whether the defendant lives in the same forum state as the plaintiff or owns property in the same forum state as the Plaintiff.
We call these traditional bases for Jurisdiction. In Pennoyer the traditional bases that your professor wants you to use in your analysis are called in personam and quasi in rem jurisdiction. But I hate legal jargon, here’s the real talk.
If Neff were living in Oregon Mitchell could have simply served him in the state and the courts jurisdiction over Neff would be based on the traditional basis called, in personam jurisdiction. In personam would have worked because Neff would have been a resident living in Oregon or what courts call “domiciled” in Oregon.
But of course, Neff wasn’t living in Oregon so unless he were served in Oregon while traveling through or appeared in court to defend himself against Mitchell there’s no way in personam jurisdiction would work.
However, there’s another argument. While Neff doesn’t live in Oregon he does own property there. And there’s this cool jurisdiction rule that says that if a Defendant lives out of state but owns property in the forum state they’re being sued in, then the court has personal Jurisdiction. The only wrinkle is that the legal dispute must be related to the property. In Pennoyer the court uses the term predicated instead of related.
On the surface it seems like this is a winner for Mitchell. But if we dig a little deeper… not so much. You see, although Neff apparently owns property in the forum state of Oregon that property is not related or the predicate of Mitchell’s law suit for $300. The dispute between Mitchell and Neff is merely over the alleged debt of $300. The property was an after thought and a means to collect on that debt after Neff failed to pay the judgment. In other words, Try not to confuse the fact that Mitchell’s legal services helped Neff to get the property with whether Neff’s property itself was in dispute in Mitchells law suit. The initial law suit was based on the $300 debt. It’s only after the law suit is over that the property comes into play.
So that’s the analysis your professor will be looking for on the Due Process Clause and the Notice prong. But you’ll also want to impress your professor with an analysis of the second constitutional requirement, the Full Faith and Credit Clause.
The thing is this, Mitchell lived in these great united states. And although states have there own individual character, culture, cuisine and favorite sports teams the states are also united under the stars and stripes of the federal government. So when a court in the state of Oregon makes a judgment it would want Courts in California to honor and enforce that judgment over their California resident.
The Full faith and Credit clause guarantees that this happens in article four of the Constitution. But there’s a wrinkle. An out of state court must only enforce a valid judgment by a court sitting in the forum state. The problem in Pennoyer is that because Mitchell failed to properly notify Neff and in doing so violated the Due Process Clause then the Oregon court’s judgment was invalid, has no personal jurisdiction, violates the Constitution and must not be given full faith and credit by any other state.
Because Mitchell did not satisfy the Constitutional requirements then: the Oregon court had no jurisdiction to hear the case or enter a default judgment. Without the default judgment there was no valid basis for Neff’s property to have been seized and sold at auction to Mitchell. As a result, Mitchell had no valid title to sale to Pennoyer and Pennoyer’s deed to Neff’s property isn’t worth the paper it was written on.
And the academy award goes to… Marus Neff!
General Framework of Analaysis
I have an analytical framework for developing the building blocks of my analysis. That way, when I read facts I can just place the facts within the components of the framework so that the analysis is clear and concise. Ultimately professors expect you to be able to do this with cases and on the exam.
First Examine the Constitutional Requirements. That is Due Process and the Full faith and Credit Clause. Under Due Process focus on how the Plaintiff must give valid notice and that the Defendant has the right to an opportunity to be heard. Under the notice prong examine the traditional bases for jurisdiction. Things like In Personam, In Rem and Quasi in Rem.
Big Picture
Pennoyer is like that one time, well the only time, when my soccer team won a game which was because our coach failed to notify the other team that there was a game so our team won by a landslide forfeit. Well the Supreme Court thought that a plaintiff shouldn’t win a case if the other party didn’t know there was a law suit. So in Pennoyer, for the first time in its history, the Supreme court explained how the Constitution’s Due Process Clause of the 14th Amendment protects against Personal Jurisdiction problems like the one in Pennoyer.
Facts of the case
Come take a walk with me down memory lane and let me introduce you to the facts of the case. If you already know the facts just skip ahead to the analysis.
Like all epic Westerns this case begins on the Oregon trail. A pioneer cowboy by the name of Marcus Neff arrived in Oregon in the middle of the 1800’s to take advantage of Congresses new law. Congress promised to give away land that it had rightly stole from native American tribes to any white settlor willing to risk their hide to begin a life on the edge of the great western frontier.
With no access to legal zoom, Neff did the next best thing and hired an attorney, one John Mitchell. Mitchell took care of the legal details and paperwork in getting the land grant for Neff. For his laborious legal services he charged $300. Not one for keeping his word, Neff did in fact get the land grant from congress but he didn’t pay Mitchell the $300 he owed in legal fees before hitting the trail again for California. You know, first stop pick up some free Indian land next stop California gold rush… I digress.
Well Mitchell did what attorneys do. He sued Neff in an Oregon state court. And because Neff was god knows where in California Mitchell had the brilliant idea to let Neff know he was being sued by placing a notice in the local Oregon News Paper. It’s hard to imagine how Neff managed never to learn that he was being sued but it could have had something to do with the fact that the Oregon Times didn’t circulate in California. I don’t know, just a guess… As a result Mitchell won the case by default judgment. Default judgment is just Civ Pro jargon for winning the case because the other side ignores the lawsuit. So here’s Mitchell with a paper or judgment that says he is entitled to $300 while Neff is living it up in the sunshine state with little intent to pay the debt owed. What’s a settlor to do? Just as it did in the mid 1800’s, our legal system has a remedy for Plaintiffs stuck with judgments and no real prospect of payment. It’s called the public auction. The court seizes property within the state it sits in and auctions it off to the highest bidder. Then with the proceeds the Plaintiff is paid and happy as a kitten in a fishbowl.
To his luck, Mitchell happened to know of prime realestate owned by Mr. Neff that could be auctioned and with its value of $15,000 could comfortable pay the $300 debt. Never a man to miss a golden opportunity, on the day the property was auctioned being the only person who showed up, Mitchell put in a bid for exactly $300. Seeing that there was no higher bid Mitchell won the auction against himself. After Mitchell’s successful bid he is given a deed to the property by the Sheriff. The Sheriff takes the $300 spoils from the auction and gives the funds over to the court. Mitchell high tails it to the court to pick up the $300 judgment owed to him. Isn’t that cool Mitchell got real estate worth 15,000 and got to keep the $300 he paid for it. I mean with the cost of law school its hard to judge the guy.
Mitchell, puts the place up for sale and a poor unfortunate soul by the name of Sylvester Pennoyer has the unforeseen fate of buying the land that will soon become the dreaded case of every 1L. A few years later, on a trip home to unwind in that beautiful Oregon country, Neff returns to his castle only to find his iron throne has an unexpected occupant claiming ownership free and clear. Outraged and feeling violated Neff appeals the state courts decision with the federal or circuit court in Oregon. The circuit court sides with Neff and returned him to his rightful place on the throne.
The appeals court reason for siding with Neff was rather technical and narrow. According to the appeals court Mitchell didn’t give a statement under oath (what’s called an affidavit) before publishing notice of the law suit in the Oregon News Paper.
Pennoyer took his case to the Supreme court and to his utter dismay the justices sided with appeals court but, and there’s always a but in law school, the Supreme Court sided with Neff and appeals court for a different set of reasons.
Case Analysis/Reasoning
Here’s the type of legal analysis your professor will be looking for in class and on the exam. (Although Pennoyer is rarely ever tested)
You see, your professor want’s you to analyze whether the state court, that gave or granted Mitchell the default judgment for $300, had valid personal jurisdiction over the Defendant Neff. Because if the court did not have jurisdiction then it should not have given Mitchell the default judgment. Without a valid default judgment Mitchell’s sheriff’s deed to Neff’s land and the sale of property to Pennoyer are both invalid. The tricky thing about Pennoyer is that whether Neff get’s his land back has more to do with the First law suit with Mitchell than it does with Pennoyer. So pay attention to the fact that most of our analysis is on the validity of Mitchell’s case even though the case before the Supreme Court is called pennoyer.
The Supreme court said that in order to have valid personal jurisdiction over a defendant certain Constitutional requirements must be satisfied. One of the requirements is the Due process clause and the other is the Full Faith and Credit Clause.
First let’s check out the Due Process Clause. The due process clause is all about being fair. It’s only fair that if you’re gonna be able to sue someone for money or property then you should let them know you’re suing them. The Due process clause calls this notice. Also, you should give the Defendant a chance to present their side of the story in court. The Due Process clause calls this an opportunity to be heard. When both the notice prong and the opportunity to be heard prong are satisfied then the due process clause requirement is met.
The problem in Pennoyer is that Mitchell didn’t satisfy the notice prong of the Due Process requirement. You see, you give someone notice of a law suit by giving them a copy of the complaint or lawsuit you have against them plus a copy of the summons which is a document that symbolizes the court’s power over the Defendant. The delivery of the copy of the complaint and summons is called service of process.
Depending on the type of jurisdiction that the court’s power over the defendant is based on, service of process must be made either personally (person to person) or constructively (like publishing it in a news paper). But whether you can complete service of process personally or constructively depends on whether the defendant lives in the same forum state as the plaintiff or owns property in the same forum state as the Plaintiff.
We call these traditional bases for Jurisdiction. In Pennoyer the traditional bases that your professor wants you to use in your analysis are called in personam and quasi in rem jurisdiction. But I hate legal jargon, here’s the real talk.
If Neff were living in Oregon Mitchell could have simply served him in the state and the courts jurisdiction over Neff would be based on the traditional basis called, in personam jurisdiction. In personam would have worked because Neff would have been a resident living in Oregon or what courts call “domiciled” in Oregon.
But of course, Neff wasn’t living in Oregon so unless he were served in Oregon while traveling through or appeared in court to defend himself against Mitchell there’s no way in personam jurisdiction would work.
However, there’s another argument. While Neff doesn’t live in Oregon he does own property there. And there’s this cool jurisdiction rule that says that if a Defendant lives out of state but owns property in the forum state they’re being sued in, then the court has personal Jurisdiction. The only wrinkle is that the legal dispute must be related to the property. In Pennoyer the court uses the term predicated instead of related.
On the surface it seems like this is a winner for Mitchell. But if we dig a little deeper… not so much. You see, although Neff apparently owns property in the forum state of Oregon that property is not related or the predicate of Mitchell’s law suit for $300. The dispute between Mitchell and Neff is merely over the alleged debt of $300. The property was an after thought and a means to collect on that debt after Neff failed to pay the judgment. In other words, Try not to confuse the fact that Mitchell’s legal services helped Neff to get the property with whether Neff’s property itself was in dispute in Mitchells law suit. The initial law suit was based on the $300 debt. It’s only after the law suit is over that the property comes into play.
So that’s the analysis your professor will be looking for on the Due Process Clause and the Notice prong. But you’ll also want to impress your professor with an analysis of the second constitutional requirement, the Full Faith and Credit Clause.
The thing is this, Mitchell lived in these great united states. And although states have there own individual character, culture, cuisine and favorite sports teams the states are also united under the stars and stripes of the federal government. So when a court in the state of Oregon makes a judgment it would want Courts in California to honor and enforce that judgment over their California resident.
The Full faith and Credit clause guarantees that this happens in article four of the Constitution. But there’s a wrinkle. An out of state court must only enforce a valid judgment by a court sitting in the forum state. The problem in Pennoyer is that because Mitchell failed to properly notify Neff and in doing so violated the Due Process Clause then the Oregon court’s judgment was invalid, has no personal jurisdiction, violates the Constitution and must not be given full faith and credit by any other state.
Because Mitchell did not satisfy the Constitutional requirements then: the Oregon court had no jurisdiction to hear the case or enter a default judgment. Without the default judgment there was no valid basis for Neff’s property to have been seized and sold at auction to Mitchell. As a result, Mitchell had no valid title to sale to Pennoyer and Pennoyer’s deed to Neff’s property isn’t worth the paper it was written on.
And the academy award goes to… Marus Neff!
General Framework of Analaysis
I have an analytical framework for developing the building blocks of my analysis. That way, when I read facts I can just place the facts within the components of the framework so that the analysis is clear and concise. Ultimately professors expect you to be able to do this with cases and on the exam.
First Examine the Constitutional Requirements. That is Due Process and the Full faith and Credit Clause. Under Due Process focus on how the Plaintiff must give valid notice and that the Defendant has the right to an opportunity to be heard. Under the notice prong examine the traditional bases for jurisdiction. Things like In Personam, In Rem and Quasi in Rem.
Last edited by Shema on Sun Sep 13, 2015 8:48 pm, edited 1 time in total.
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Shema
- Posts: 96
- Joined: Sat Jun 01, 2013 3:14 am
Re: Let's Talk Civ Pro Study Approach
International Shoe
If you get cold called on International Shoe or just want to show of in class here are some points you can make to stand out when approaching the International Shoe case.
Big Picture
Do you remember the ancient proverb “you can’t have your cake and eat it too”. It’s a silly way of saying you can’t have the best of both worlds. This is essentially what the St. Louis based international shoe company tried to pull on the state of Washington. They wanted to sell shoes in the state of Washington but they didn’t want to have to pay taxes in the state of Washington. So they created a system where they hired people in Washington and made money from Washington consumers but did it behind the scenes so if they were ever sued in the state of Washington for business taxes the court wouldn’t have any jurisdiction because technically… they were never formally there. There business was present in St. Louis; Not Washington.
Holding
When the Supreme court decides this case, it sides with Washington that the state does have jurisdiction over the Shoe Company, which would allow the state of Washington jurisdiction to sue international Shoe for business taxes.
Facts
To understand what’s going on in shoe it helps to have a good grasp on some of the more important factual nuances.
One of the nuances is why the State of Washington is suing Shoe. You see when people lose their jobs they can file for unemployment compensation with the State and receive money from the State for a short time while they look for other work. Well that money does not magically appear, it is put into the state’s pocket from business taxes who pay into a fund that’s used later for the state’s unemployed. Well the state of Washington is pretty pissed that International Shoe company has employees in their state and sells it’s shoes to Washington consumer but doesn’t contribute even a copper penny to Washington’s employment compensation fund. So Washington is suing for those unpaid contributions. But in order to sue the Washington court needs jurisdiction over Shoe which is a St. Louis Missouri resident where it houses its corporate headquarters.
Another nuance is, how exactly did International Shoe’s attorneys set up Shoe’s business model to avoid being subject to Jurisdiction in Washington. Well they did a couple things. For starters, Shoe was careful not to own any property in Washington. Instead they would occasionally rent rooms where they would put up shoe samples. The idea was that occasionally renting room would illustrate that Shoe had not established any firm roots in the state. Another clever trick was to only allow the salesmen to display one shoe in the state. The idea was that no Shoe Company could be genuinely doing business in a state if the salesmen hadn’t even been shipped a complete pair of shoes to display. To further hide their hand, if someone wanted to buy a pair of shoes from the salesman they couldn’t simply hand the salesman the money and have a deal. Instead the sales person would let the St. Louis headquarters know that a customer wanted to buy shoes and the transaction would be handled in St. Louis. By having the sale processed and finalized in St. Louis Shoe minimized Washington’s involvement with sales to appear like a St. Louis operation and not a Washington operation. Shoe even had the customer pay for shipping the shoes to Washington to try and make the point that it was the customer shipping shoes to Washington and not International Shoe because the customer paid for the shipping.
Analysis/Reasoning (Cool Points to make in class)
When you take the final exam at the close of the semester or if you are cold called in class your job will be to support your conclusions with reasons and analysis just like the court does. Here’s the type of legal analysis your professor will be looking for in class and on the exam.
Point #1
To start with, there is a brief point to be made about the relationship between Pennoyer and International shoe. Historically Pennoyer interpreted the Constitutions due process clause as requiring the Defendant to be present inside the forum state where the court wants or exercises jurisdiction. However, International shoe says that the due process clause can also be satisfied even when the Defendant is not present in the forum state where they’re being sued, as long as the minimum contacts test is satisfied. Pennoyer looks at the due process clause and the Defendant’s presence in the forum state more narrowly. International Shoe, on the other hand, takes a more broad approach to how the Defendant’s presence in the state is interpreted under the due process clause. The court makes this point in the reasoning so you should make it too.
Point #2
The most important analysis that comes out of International shoe is the minimum contacts test. Under the minimum contacts test, you are analyzing whether the out-of-state-defendant, like St Louis headquarter International Shoe Company, has had sufficient contacts or involvement with the forum state, like Washington, to justify bringing the out-of-state defendant under its jurisdiction. To determine if there are enough minimum contacts that looks at two groups. Group 1 deals with whether Shoe’s level of activity was merely casual and irregular versus continuous and systematic. In other words, was there a lot of activity (systematic and continuous) in the state of Washing or only a little (casual and irregular). The second group deals with whether the State of Washington’s claim related to the things Shoe was doing in the state or was it unrelated to the things Shoe was doing in the state. As to the level of activity, the court reasoned that the level of activity was systematic and continuous because it lasted over a period of several years, involved a sophisticated system of sales people and sales strategy which generated considerable revenue and business for Shoe. As to relatedness, the court reasoned that the State of Washington’s claim for business taxes for their state worker’s compensation fund was related or connected to Shoe’s activity in the state since shoe’s activity of employing sales persons who lived in the state of Washington related to whether shoe as a state employer should pay the state’s business tax.
If there was minimum contact, the next factor is to consider whether litigating the lawsuit in the forum court would offend “fair play and substantial justice.” This is more of a question of analyzing whether it would be fair to litigate the case in Washington or the forum state. The court reasoned that it would be fair because International Shoe also had the benefit of being able to protect its rights in a Washington court. For instance, if a Washington state customer or employee violated Shoe’s right they would also have the right to enter the state’s court to litigate their claim.
Point #3
If you really wanna show off, talk about the importance Justice Blacks concurring opinion. In it, he agrees with the majority of the Justices decision to give Washington personal jurisdiction but he argues that the minimum contacts test is way to complicated and super vague. Basically Justice Black makes the point that terms like “minimum contacts” “traditional notions” or fair play and substantial justice” are open ended criteria that are far too uncertain and unpredictable. The reason this is a problem is that lower courts look to the Supreme court for guidance on how they should rule. If the criterion the court is using is not clear and can be interpreted a lot of ways then the ruling is inefficient for lower courts and for businesses and citizens who would be uncertain as to what the law really is.
I mean if you were an attorney during the Pennoyer at least you could concretely advise your client, “hey if you want to avoid being sued in that state don’t visit the state and don’t appoint an agent in the state”. In other words, don’t be present in the state. But if you’re an attorney during or after the International Shoe decision you tell your client something cryptic like “don’t establish minimum contacts that would offend traditional notions of fair play and substantial justice.”… Huh? Exactly, now you and justice black are on the same page.
Say this in class and you’ll be a rock star!
Point #4
There is another awesome point that Justice Black makes about his concern that the International Shoe test would trample on individual state’s rights. A lot of Civil procedure centers around whether a case can be litigated in State court versus Federal court. Of course States would like to have some autonomy or independence from the Federal government. In fact the Constitution grants each State a certain degree of independence from federal oversight under the Tenth amendment of the Constitution. Justice Black feared that since the criterion for the International Shoe test were so vague that the Federal government would interpret the test in favor of the Federal government which would further limit a State’s rights to be free to determine their own jurisdiction laws. While this was a good point to make in real life things actually went in the other direction. International Shoe ended up increasing and broadening State jurisdiction instead of limiting States ability to determine their jurisdictional reach. Justice Black was wrong about his 10th Amendment or State’s rights prediction but he was totally on point about how International Shoe created too much uncertainty and unpredictability. The Supreme Court came back several times to clear up and redefine the International Shoe test because of what Justice Black predicted when the decision was first made.
Topic #5
An important question that comes out of International Shoe is whether the minimum contacts test over rules Pennoyer’s ruling that personam jurisdiction requires a Defendant to be present in the state or is Shoe’s minimum contacts test just an alternative. The court did not say definitively in International shoe but based on the language in the decision it seems like the justices saw it as an alternative and not as completely over ruling Pennoyer. It is common in Supreme Court cases to leave some questions unanswered or unresolved because Constitutional law is always evolving with the times.
Actually the importance of the time or the era International Shoe is contextually important to the court’s ruling and is a good way of showing your prof that you think like an attorney. You see, Shoe was decided in 1945 during World War II. Because it was a time of war, the cultural majority viewed themselves more collectively as Americans in it together than as individual states vying for position over the other. Also travel between states for business and pleasure was a lot different by 1945 than it had been during the Wagon and Western frontier days of Pennoyer. Because of this cultural shift and societal developments state lines had less significance than they had almost 100 years earlier. It was within this historical context that International Shoe was decided by justices living in that era and it’s an important point to remember.
Policy points like this are important to pay attention to in class because they can lead to extra points on the exam if you tie them in within the right context.
If you get cold called on International Shoe or just want to show of in class here are some points you can make to stand out when approaching the International Shoe case.
Big Picture
Do you remember the ancient proverb “you can’t have your cake and eat it too”. It’s a silly way of saying you can’t have the best of both worlds. This is essentially what the St. Louis based international shoe company tried to pull on the state of Washington. They wanted to sell shoes in the state of Washington but they didn’t want to have to pay taxes in the state of Washington. So they created a system where they hired people in Washington and made money from Washington consumers but did it behind the scenes so if they were ever sued in the state of Washington for business taxes the court wouldn’t have any jurisdiction because technically… they were never formally there. There business was present in St. Louis; Not Washington.
Holding
When the Supreme court decides this case, it sides with Washington that the state does have jurisdiction over the Shoe Company, which would allow the state of Washington jurisdiction to sue international Shoe for business taxes.
Facts
To understand what’s going on in shoe it helps to have a good grasp on some of the more important factual nuances.
One of the nuances is why the State of Washington is suing Shoe. You see when people lose their jobs they can file for unemployment compensation with the State and receive money from the State for a short time while they look for other work. Well that money does not magically appear, it is put into the state’s pocket from business taxes who pay into a fund that’s used later for the state’s unemployed. Well the state of Washington is pretty pissed that International Shoe company has employees in their state and sells it’s shoes to Washington consumer but doesn’t contribute even a copper penny to Washington’s employment compensation fund. So Washington is suing for those unpaid contributions. But in order to sue the Washington court needs jurisdiction over Shoe which is a St. Louis Missouri resident where it houses its corporate headquarters.
Another nuance is, how exactly did International Shoe’s attorneys set up Shoe’s business model to avoid being subject to Jurisdiction in Washington. Well they did a couple things. For starters, Shoe was careful not to own any property in Washington. Instead they would occasionally rent rooms where they would put up shoe samples. The idea was that occasionally renting room would illustrate that Shoe had not established any firm roots in the state. Another clever trick was to only allow the salesmen to display one shoe in the state. The idea was that no Shoe Company could be genuinely doing business in a state if the salesmen hadn’t even been shipped a complete pair of shoes to display. To further hide their hand, if someone wanted to buy a pair of shoes from the salesman they couldn’t simply hand the salesman the money and have a deal. Instead the sales person would let the St. Louis headquarters know that a customer wanted to buy shoes and the transaction would be handled in St. Louis. By having the sale processed and finalized in St. Louis Shoe minimized Washington’s involvement with sales to appear like a St. Louis operation and not a Washington operation. Shoe even had the customer pay for shipping the shoes to Washington to try and make the point that it was the customer shipping shoes to Washington and not International Shoe because the customer paid for the shipping.
Analysis/Reasoning (Cool Points to make in class)
When you take the final exam at the close of the semester or if you are cold called in class your job will be to support your conclusions with reasons and analysis just like the court does. Here’s the type of legal analysis your professor will be looking for in class and on the exam.
Point #1
To start with, there is a brief point to be made about the relationship between Pennoyer and International shoe. Historically Pennoyer interpreted the Constitutions due process clause as requiring the Defendant to be present inside the forum state where the court wants or exercises jurisdiction. However, International shoe says that the due process clause can also be satisfied even when the Defendant is not present in the forum state where they’re being sued, as long as the minimum contacts test is satisfied. Pennoyer looks at the due process clause and the Defendant’s presence in the forum state more narrowly. International Shoe, on the other hand, takes a more broad approach to how the Defendant’s presence in the state is interpreted under the due process clause. The court makes this point in the reasoning so you should make it too.
Point #2
The most important analysis that comes out of International shoe is the minimum contacts test. Under the minimum contacts test, you are analyzing whether the out-of-state-defendant, like St Louis headquarter International Shoe Company, has had sufficient contacts or involvement with the forum state, like Washington, to justify bringing the out-of-state defendant under its jurisdiction. To determine if there are enough minimum contacts that looks at two groups. Group 1 deals with whether Shoe’s level of activity was merely casual and irregular versus continuous and systematic. In other words, was there a lot of activity (systematic and continuous) in the state of Washing or only a little (casual and irregular). The second group deals with whether the State of Washington’s claim related to the things Shoe was doing in the state or was it unrelated to the things Shoe was doing in the state. As to the level of activity, the court reasoned that the level of activity was systematic and continuous because it lasted over a period of several years, involved a sophisticated system of sales people and sales strategy which generated considerable revenue and business for Shoe. As to relatedness, the court reasoned that the State of Washington’s claim for business taxes for their state worker’s compensation fund was related or connected to Shoe’s activity in the state since shoe’s activity of employing sales persons who lived in the state of Washington related to whether shoe as a state employer should pay the state’s business tax.
If there was minimum contact, the next factor is to consider whether litigating the lawsuit in the forum court would offend “fair play and substantial justice.” This is more of a question of analyzing whether it would be fair to litigate the case in Washington or the forum state. The court reasoned that it would be fair because International Shoe also had the benefit of being able to protect its rights in a Washington court. For instance, if a Washington state customer or employee violated Shoe’s right they would also have the right to enter the state’s court to litigate their claim.
Point #3
If you really wanna show off, talk about the importance Justice Blacks concurring opinion. In it, he agrees with the majority of the Justices decision to give Washington personal jurisdiction but he argues that the minimum contacts test is way to complicated and super vague. Basically Justice Black makes the point that terms like “minimum contacts” “traditional notions” or fair play and substantial justice” are open ended criteria that are far too uncertain and unpredictable. The reason this is a problem is that lower courts look to the Supreme court for guidance on how they should rule. If the criterion the court is using is not clear and can be interpreted a lot of ways then the ruling is inefficient for lower courts and for businesses and citizens who would be uncertain as to what the law really is.
I mean if you were an attorney during the Pennoyer at least you could concretely advise your client, “hey if you want to avoid being sued in that state don’t visit the state and don’t appoint an agent in the state”. In other words, don’t be present in the state. But if you’re an attorney during or after the International Shoe decision you tell your client something cryptic like “don’t establish minimum contacts that would offend traditional notions of fair play and substantial justice.”… Huh? Exactly, now you and justice black are on the same page.
Say this in class and you’ll be a rock star!
Point #4
There is another awesome point that Justice Black makes about his concern that the International Shoe test would trample on individual state’s rights. A lot of Civil procedure centers around whether a case can be litigated in State court versus Federal court. Of course States would like to have some autonomy or independence from the Federal government. In fact the Constitution grants each State a certain degree of independence from federal oversight under the Tenth amendment of the Constitution. Justice Black feared that since the criterion for the International Shoe test were so vague that the Federal government would interpret the test in favor of the Federal government which would further limit a State’s rights to be free to determine their own jurisdiction laws. While this was a good point to make in real life things actually went in the other direction. International Shoe ended up increasing and broadening State jurisdiction instead of limiting States ability to determine their jurisdictional reach. Justice Black was wrong about his 10th Amendment or State’s rights prediction but he was totally on point about how International Shoe created too much uncertainty and unpredictability. The Supreme Court came back several times to clear up and redefine the International Shoe test because of what Justice Black predicted when the decision was first made.
Topic #5
An important question that comes out of International Shoe is whether the minimum contacts test over rules Pennoyer’s ruling that personam jurisdiction requires a Defendant to be present in the state or is Shoe’s minimum contacts test just an alternative. The court did not say definitively in International shoe but based on the language in the decision it seems like the justices saw it as an alternative and not as completely over ruling Pennoyer. It is common in Supreme Court cases to leave some questions unanswered or unresolved because Constitutional law is always evolving with the times.
Actually the importance of the time or the era International Shoe is contextually important to the court’s ruling and is a good way of showing your prof that you think like an attorney. You see, Shoe was decided in 1945 during World War II. Because it was a time of war, the cultural majority viewed themselves more collectively as Americans in it together than as individual states vying for position over the other. Also travel between states for business and pleasure was a lot different by 1945 than it had been during the Wagon and Western frontier days of Pennoyer. Because of this cultural shift and societal developments state lines had less significance than they had almost 100 years earlier. It was within this historical context that International Shoe was decided by justices living in that era and it’s an important point to remember.
Policy points like this are important to pay attention to in class because they can lead to extra points on the exam if you tie them in within the right context.
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AReasonableMan
- Posts: 1504
- Joined: Sun Sep 21, 2014 9:32 pm
Re: Let's Talk Civ Pro Study Approach
This is a lot of information. The main thing I wish I knew going in was how much it has evolved in the past century, and how law school professors test. Literally 90 percent of the readings had no relevancy at all, and were like watching 1950's basketball to understand how basketball is played today. For most civ pro students much of what they learn the first month is for naught, and therefore needlessly takes study time away from other exams and personal time. At the end of the day, a client doesn't give a shit what the law would be if we went into a time machine to 1850, and therefore it serves no purpose on a law school exam.
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Shema
- Posts: 96
- Joined: Sat Jun 01, 2013 3:14 am
Re: Let's Talk Civ Pro Study Approach
I think you are right. The problem is that in class Profs make it feel like this stuff is super important. Then come exam time and in real life it was all just a damn history lesson. But if you channel back to 1L your goals were more short term. You wanted to seem reasonably competent among your peers and leave that day feeling like you "get law school" instead of totally confused. Like you I think it's best to think of things in the big picture but when you are a 1L you don't know what matters and what doesn't so you want to follow class and not "miss anything". For those 1Ls struggling with this I'm just trying to give them pointers they can actually use in class and waste a little less time.AReasonableMan wrote:This is a lot of information. The main thing I wish I knew going in was how much it has evolved in the past century, and how law school professors test. Literally 90 percent of the readings had no relevancy at all, and were like watching 1950's basketball to understand how basketball is played today. For most civ pro students much of what they learn the first month is for naught, and therefore needlessly takes study time away from other exams and personal time. At the end of the day, a client doesn't give a shit what the law would be if we went into a time machine to 1850, and therefore it serves no purpose on a law school exam.
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pancakes3
- Posts: 6619
- Joined: Sun Jul 20, 2014 2:49 pm
Re: Let's Talk Civ Pro Study Approach
While the info is good (I'm assuming, didn't read it), info-dumping 1Ls like this is a bad idea because they'll inevitably try to drink the keg all at once. Not an indictment on 1Ls, it's just human nature. Resist the urge and just go with what your profs are assigning then revisit it (this page and others like it) in late Oct/Nov. Compare what you understand CivPro to what is being put up here and fill in gaps/reinforce as needed. You're already doing the readings and sitting in class. You're going to learn the stuff.
The law itself isn't hard - it's just arbitrary. If you don't know how to play Poker, it's not intuitive. You still have to learn the rules. The rules aren't hard either - you just have to sit there and learn it. If the guy sitting next to you remembers if a straight beats a flush quicker than you do at first blush doesn't mean he'll be a better poker player.
The law itself isn't hard - it's just arbitrary. If you don't know how to play Poker, it's not intuitive. You still have to learn the rules. The rules aren't hard either - you just have to sit there and learn it. If the guy sitting next to you remembers if a straight beats a flush quicker than you do at first blush doesn't mean he'll be a better poker player.
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Shema
- Posts: 96
- Joined: Sat Jun 01, 2013 3:14 am
Re: Let's Talk Civ Pro Study Approach
Great Point!pancakes3 wrote:While the info is good (I'm assuming, didn't read it), info-dumping 1Ls like this is a bad idea because they'll inevitably try to drink the keg all at once. Not an indictment on 1Ls, it's just human nature. Resist the urge and just go with what your profs are assigning then revisit it (this page and others like it) in late Oct/Nov. Compare what you understand CivPro to what is being put up here and fill in gaps/reinforce as needed. You're already doing the readings and sitting in class. You're going to learn the stuff.
The law itself isn't hard - it's just arbitrary. If you don't know how to play Poker, it's not intuitive. You still have to learn the rules. The rules aren't hard either - you just have to sit there and learn it. If the guy sitting next to you remembers if a straight beats a flush quicker than you do at first blush doesn't mean he'll be a better poker player.
