Using TLB to Teach Civil Procedure (2023 Update)
August 8, 2023
With the new school year come new decisions about how to incorporate yet another Supreme Court personal jurisdiction decision into the civil procedure curriculum. TLB can help! This post highlights materials on TLB that can provide updates on recent cases, concise overviews of doctrines, and conversation starters about procedural questions.
The big news in the world of personal jurisdiction was the Supreme Court’s decision in Mallory v. Norfolk Southern Railway, upholding a Pennsylvania statute that provided general jurisdiction based on a corporation’s registration to do business. If you aren’t planning to assign the Court’s opinion in Mallory, you can assign the TLB summary instead. If you are planning to assign Mallory, Maggie’s Throwback Thursday post on Insurance Corp. of Ireland v. Compagnie des Bauxites (1982) provides helpful context for Justice Jackson’s concurrence. For background on registration statutes, consider assigning this post by Rocky Rhodes and Cassandra Robertson.
After Mallory, how far do we take the idea of consent to jurisdiction? John has explained how courts have used forum selection clauses to assert personal jurisdiction over non-signatories (or, to explain the whole idea of forum selection clauses, consider our Primer). Ingrid has reported on whether federal statutes can establish the PLO’s implicit consent to personal jurisdiction (a good question for class: should the SDNY’s analysis change in light of Mallory?).
Maggie also has a series of posts based on recent cases that highlight some of the ambiguities and open questions in personal jurisdiction doctrine: Is the “principal place of business” test for general jurisdiction the same as the nerve center test for subject matter jurisdiction? (or as Maggie likes to say, don’t Hertz the Daimler test!). Is there a difference between the 5th and 14th Amendment’s due process clauses, and how do you apply Rule 4(k)(2)? And after Ford Motor Co. v. Montana Eighth Judicial District (2021), can U.S. consumers still sue foreign car manufacturers? (Maybe not!)
Forum Non Conveniens
If you don’t have time to teach Piper Aircraft Co. v. Reyno (1981)—or even if you do—consider assigning our Primer on Forum Non Conveniens as a concise summary of the doctrine that also touches on its history and how the federal doctrine differs from state doctrines. This post goes into greater detail about state doctrines of forum non conveniens, which sets up an interesting Erie debate: should state doctrines of forum non conveniens apply in diversity cases? To illustrate the stakes of that question, consider assigning this post as well, which discusses an example of what Zach calls “catch and kill jurisdiction”: Boeing first used snap removal to remove a tort case to federal court despite the forum defendant rule and then got the case dismissed from its home jurisdiction using the federal doctrine of forum non conveniens when the state doctrine likely would not have allowed it to do so.
We also recommend this post on Gore v. U.S. Steel Corp. (1954), the New Jersey Supreme Court case that was the first to allow forum non conveniens dismissals of cases brought against local defendants. The racial context of Gore provides a helpful counterpoint to the Supreme Court’s dismissive characterization of foreign plaintiffs’ claims in Piper.
Choice of Law
Speaking of Erie, choice of law is an important building block for 1Ls, yet one that civil procedure professors can’t cover in depth. The TLB Primer on Choice of Law provides a concise introduction to the topic, including an introduction to the major methodologies used by different states. Most casebooks squib Klaxon Co. v. Stentor Electric Manufacturing Co., Inc. (1941) despite its significance. To explore a bit more the import of Klaxon’s solution—as well as what possible alternatives there might be—consider assigning John Parry’s post on Federal Law and Choice-of-Law Reform.
Service of Process and Discovery
Service of process and discovery are both good topics for flagging the existence of—and challenges presented by—transnational litigation. Our Primer on Transnational Discovery is an excellent tool in this regard: it concisely introduces readers to the challenges of cross-border discovery and the variety of tools that have developed to address it. You might also assign our Primer on Service of Process (which focuses on the question of how to serve foreign defendants) or a post that connects service and/or discovery with broader questions of geopolitics, such as Russia’s refusal to fulfill its obligations under the Hague Service Convention, the effect of sanctions on discovery involving Russian entities, the implications of China’s new data secrecy law for U.S. discovery, or the propriety of serving Chinese defendants via email.