What\u27s Coming for Class Actions,

A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification. Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs\u27 attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action

Daimler and the Jurisdictional Triskelion

Twice in the past three years, in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman, the Supreme Court articulated a new landscape of general personal jurisdiction; namely, exercises of dispute-blind jurisdiction will be based on a determination of whether a corporation is at home in the jurisdiction, not on whether the corporation had continuous and systematic contacts in the forum state. The Court\u27s test was further explained in terms of three different fora: where the corporation is incorporated, where it maintains its principal place of business, and where there are unique circumstances suggesting that the corporation is truly at home. Unfortunately, the Court failed to articulate an underlying policy that bound together the three bases of general jurisdiction, and it refused to clarify what types of unique situations might give rise to general personal jurisdiction outside the state of incorporation and principal place of business. Thus, although a new test was articulated, its boundaries and theoretical foundations remain woefully unclear. This Article seeks to elucidate general jurisdiction\u27s new normal by exploring the jurisdictional triskelion-three interconnected bases of general jurisdiction united by a core underlying policy. While the state of incorporation and principal place of business form the first two bases, this Article suggests that the third basis, now designated only as unique circumstances, should be defined by fora in which the corporation maintains (1) a physical office, (2) employees, and (3) corporate decision makers or executives. These considerations have long appeared in the Court\u27s jurisprudence on general jurisdiction and have the added benefit of being easy to ascertain without significant resource expenditure. Further, defining the third basis in this way lends clarity to the purpose and policy of general jurisdiction. While the Court has never addressed what policy supports the exercise of general jurisdiction, the Daimler Court noted that principles of general jurisdiction stem from traditional conceptions of jurisdictional power. Since pre-International Shoe personal jurisdiction was rooted in the link between sovereign states and their citizens, the three modern bases of general jurisdiction must now emanate from state citizenship. This Article suggests that a corporation should be considered a citizen in fora that help it further its own corporate existence and overarching directives. The state of incorporation, the principal place of business, and fora, where there is an office, employees, and executives in the state, all illustrate this policy-they all promote the corporation\u27s direction and control of its own existence. Accordingly, all three bases are paradigmatic of general jurisdiction and emanate from a core policy rooted in state sovereignty. Re-conceptualizing general jurisdiction in this way not only clarifies the at home standard adopted in Daimler, but clearly establishes the situations in which an exercise of dispute-blind jurisdiction will comport with due process standards

What\u27s Coming for Class Actions,

A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification. Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs\u27 attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action

#PersonalJurisdiction: A New Age of Internet Contacts

This Article explores the complicated relationship between minimum contacts and the modern internet. Part I traces the development of modern personal jurisdiction analyses in the areas of both specific and general jurisdiction. Interesting in this historical overview is the increased reliance on predictability, even as courts have recognized that advanced technologies and infrastructure have made the maintenance of lawsuits infinitely easier than in the days before International Shoe.7 Part II then explores the intersection between personal jurisdiction and the internet as well as the rise of the so-called Zippo “interactivity” test for jurisdiction in cases involving websites. Although Zippo has represented the cornerstone of internet-based jurisdiction since its publication in 1997, there are several problems with the test, including incorrect applications in the area of general jurisdiction and inconsistent applications when websites contain advertisements, contact information, or other possible interactive features. Part III examines the changing nature of the modern internet and the move from Web 1.0 to Web 2.0.8 This change has brought with it increased interactivity in online experiences, including the rise of social media. These changes have made it difficult to continue to apply the Zippo analysis as it currently exists. Accordingly, Part IV of this Article proposes a shift in the manner in which courts should think about personal jurisdiction and website interactivity. Specifically, this Article proposes that courts should move away from interactivity-based analyses to a more holistic analysis that examines the defendant’s expectations based on the increased global presence of the internet and traditional notions of fairness. The analytical framework proposed by this Article seeks to do two things. First, the framework eliminates inconsistent applications of the Zippo test. An examination of the case law reveals that websites with many of the same features are now being classified differently in various jurisdictions. Second, the framework attempts to lay a sustainable groundwork that can withstand future technological innovations. It is without question that the internet has changed substantially since the time of Zippo in 1997. However, the future holds even greater changes for the way in which users communicate online and receive information. Addressing these changes now will lay a sustainable groundwork for the near future, when the web will become more semantic, more personal, and even more ubiquitous

Collateral Damage: Protecting Cultural Heritage in Crimea and Eastern Ukraine

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia\u27s actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon\u27s systematic looting of Egypt to the state-sanctioned pillage and burning of museums in Kuwait by Iraq during the Persian Gulf War.1 The question now is whether that destiny is inevitable for Ukraine\u27s unique cultural resources, or whether such collateral damage can be prevented

Terrible Touhy: Navigating Judicial Review of an Agency\u27s Response to Third-Party Subpoenas

The question of judicial review of a federal agency\u27s response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court\u27s holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard. This Article establishes that the circuit courts\u27 approaches to judicial review of an agency\u27s noncompliance with a subpoena are largely divided over the academic question of sovereign immunity. For the Fourth and Eleventh Circuits, only the Administrative Procedure Act (APA) provides the necessary waiver of sovereign immunity that allows a court to review agency action; accordingly, review of an agency\u27s failure to comply with a subpoena is analyzed under the APA\u27s “arbitrary and capricious” standard. For the Ninth and D.C. Circuits, the federal courts have broad, implicit power over discovery, and Federal Rule of Civil Procedure 45 is applied as it would be in all other cases. This Article seeks to reconcile these competing lines of authority by proposing that the APA\u27s waiver of sovereign immunity still applies when an agency runs afoul of discovery standards contained in Federal Rule 45. This Article attempts to reunite the circuits because district court case law shows that confusion over the appropriate standard is a distinction without a difference. For lower courts and litigants attempting to navigate the circuit split, it is worth knowing that the question largely comes down to the impact third-party subpoenas have on agency time, money, and statutory mission. By framing judicial review accordingly, consistent results can be achieved, despite the geographic location of the court

Collateral Damage: Protecting Cultural Heritage in Crimea and Eastern Ukraine

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia\u27s actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon\u27s systematic looting of Egypt to the state-sanctioned pillage and burning of museums in Kuwait by Iraq during the Persian Gulf War.1 The question now is whether that destiny is inevitable for Ukraine\u27s unique cultural resources, or whether such collateral damage can be prevented