Week Three, Part 6 - CivPro: Sue All The Bastards

By the end of the week, I’m exhausted. Every night I’ve stayed up late reading and writing. In sum, I’ve briefed 33 cases, compared to 24 last week and 9 the first.

I know I should start revising my class notes, by now a tangle of alien words and sentence fragments. First, though, I need to spend some time on the library assignment in Legal Research and my office memo.

Ironically, despite my efforts, it doesn't feel like I’m learning much. There’s little chance to reflect on what I’ve heard in class. Right now it’s all about survival of the fittest.

Of the substantive courses, Civil Procedure seems the most manageable. We’ve spent five classes on Pennoyer v. Neff, the case about the unpaid lawyer. “The law has not remained frozen,” Professor Bauer says, but we’re starting to wonder.

Bauer uses Pennoyer to review the traditional bases of personal jurisdiction: presence, citizenship, consent, agency. Then he introduces us to the concept of notice.

After we’ve squeezed every drop of goodness out of Pennoyer, Bauer announces that we’ll now work faster. He pauses. “On second thought, I can't imagine us going much slower.”

We spend the next class trying to figure out hypotheticals about personal jurisdiction. Each one is based on “A from Minnesota is suing B from North Dakota in a court in Minnesota.”

In the last hypo, Bauer manages a Pennoyer reprise. The question is, “In a suit for divorce, can A serve notice to B in North Dakota?”

“Yes,” Bauer says. To explain why, he has us turn back to Pennoyer. We read about a state’s "absolute right” to prescribe the conditions of the marriage relationship.

Bauer straightens up and thumps his fist on the podium. “It was good law back in 1877, and it’s good law now.” We laugh. If Bauer is Captain Ahab, then Pennoyer is Moby Dick.

On Friday we discuss Hess v. Pawloski, a case dealing with “implied consent” to personal jurisdiction. Bauer notes that Hess, decided in 1927, comes exactly 50 years after... Pennoyer v. Neff.

The facts are simple. Hess, a citizen of Pennsylvania, drove a car that struck and injured Pawloski, a Massachusetts resident. Pawlowski sued Hess in Massachusetts to recover damages for personal injuries and won at trial. Hess appealed. The U.S. Supreme Court upheld the Massachusetts statute giving the state court personal jurisdiction over non-residents who used its roads and were involved in auto accidents.

Bauer says that implied consent is “a legal fiction to permit the exercise of jurisdiction.”

At the end of class, Bauer tells a Hess-like story from his days at Hah-vard. “I went to law school in Cambridge,” he says. “While I was there, I had three accidents. And each time my car was stopped!”

We laugh. Bauer is emphatic and animated, the illogic of situations still at odds with his “procedural” world-view.

“Once I was at the bottom of a hill in a snowstorm. The second took place at a stoplight. And one was in alley where a truck backed into me!” Bauer rages against the bad drivers. “Fortunately, I managed to sue all the bastards and finance my education.”

On the way out, I bump into John Edgar. He shakes his head like he can’t take it any longer.

“What’s wrong?” I ask.

“That driving story. Even his anecdotes are on point!” John says. He turns his wheelchair at right angles to cut through the traffic.

I call after him. “But at least we’re done with Pennoyer v. Neff.”

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