Traditional Notions and Burnham v. Superior Court

As everyone knows, blog success is due in large part to a snappy title. A poorly chosen title could mean the ridicule of your peers and the alienation of affection of your loved ones. Bloggers (particularly those like myself who seem to have no readers) are perhaps only outdone by garage bands in the meta-analysis involved in trying to come up with a succinct and witty title for one's public output.

Coming up with Traditional Notions was fairly easy, though, and I believe it will guarantee the eventual fame and riches that are my rightful due (please click on my imaginary advertising links). I started my selection of a name by deciding that I had to have the old law-student-blog standby: the clever use of a legal term (see, e.g. Blog De Novo, Sua Sponte, and Will Work for Favorable Dicta).

Click here to read more on why Traditional Notions is the bestest blawg-name ever
Anyone who made it through 1L will probably recognize that the title came from the fundamental rule of jurisdiction over parties expressed in International Shoe Co. v. Washington: a state may exercise jurisdiction over an out-of-state defendant if the defendant has such minimum contacts with the state that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice."

Personal jurisdiction is one of those esoterically lawyerly areas. Despite the fact that law professors, law students and the Supreme Court devote a substantial amount of time to it, and that is the basis of every lawsuit and has a very real and practical impact on access to justice, it is pretty much ignored by non-lawyers (and, to be honest, probably a lot of post-1L lawyers, too). It arguably has greater impact on our sense of justice than the hot-button issues of abortion, religion and the right to bear arms, but those are the sexy issues that get all the attention. It's exactly the kind of thing I can get into.

Basically, personal jurisdiction comes down to where you can sue someone (which opens up a whole host of other issues because where you sue someone is often determinative of the law that is applied and the type of jury you might get). It's main application is where a plaintiff can bring a suit against a corporation, based on whether or not a corporation has enough contacts with the state in which the lawsuit has been brought. It can get a little complex, but I didn't select the title because of that. I selected it because it is representative of something even more esoteric and totally awesome.

After International Shoe, the Supreme Court returned to personal jurisdiction numerous times. They reined in ever-expanding jurisdiction in Worldwide Volkswagen Corp. v. Woodson, and confused the issue entirely in Asahi Metal Industry Co. v. Superior Court. But it is Burnham v. Superior Court that is the most amazing case that I have yet to read.

Burnham started out fairly simply: A New Jersey couple split up, and she moved to California with the kids. Mr. Burnham heads to CA to visit the kids, and while he is there he is served with divorce papers. But Burnham didn't want their divorce to be filed in California, he wanted it in New Jersey (presumably he benefits from New Jersey law compared to California). So, he appeals the jurisdiction of California courts over him. Somehow, it wound up in the Supreme Court.

This is bizarre, because absolutely no one (with, perhaps, the apparent exception of Mr. Burnham) believes that California does not have jurisdiction over someone who is served while physically present in a state. As the old 1L refrain goes, "Presence is presence is presence." If you're in the state, tag, you're served (with a few minor exceptions... it wouldn't be law if it wasn't ambiguous, now would it?). In fact, even SCOTUS voted unanimously that there was jurisdiction... and no one even called it as close. But here is the utter fabulousness of Burnham: the Justices only wanted to argue about why there was jurisdiction. In fact, they wanted to argue about it so much that there is no majority opinion in the case: it is a unanimous opinion in which 5 justices cannot agree on the reason why they are holding in a particular way. Isn't that awesome?

It came down to this: Scalia (joined by Rehnquist and Kennedy) argued that physical presence as a basis for jurisdiction is a "traditional notion" that our jurisprudence had developed; he cited authority as a far back as the 15th century to support his proposition that presence as a basis for personal jurisdiction is one of the most firmly rooted precepts of our legal system (which brings to mind a lawyer momma joke: Yo' momma's so old, Scalia cites her). In other words, for Scalia the question of whether a legal notion itself is traditional is the basis for meeting the standard of International Shoe.

Brennan (joined by Marshall, Blackmun and O'Connor) believes that the exercise of jurisdiction over Burnham would not offend our "traditional notions of fair play and substantial justice." To Brennan, the question was fairness: is it fair to exercise jurisdiction here? His answer was yes. But note the difference in the basis for deciding: Brennan believes that "fair play and substantial justice" are the "traditional notions," and that in other words it is "fairness" that is the traditional notion, and not some other traditional way of doing things (for example, exerting jurisdiction over a person present in the state, simply because it is traditionally the way things were done, or the way they were done at the time of adoption of the 14th amendment).

White concurs in part with Scalia, but objects to all of the name-calling in Scalia's section III and with the fundamental disagreement between "traditional" and "fair". And Stevens, classically and quirkily, essentially declares a pox on both their houses and concurs in the judgment without really giving a reason why.

This division is nothing new: Scalia and the conservatives arguing for strict construction, original intent, and narrow interpretations, and Brennan and the liberal justices arguing for a "living" Constitution where it is interpreted in light of contemporary standards. In a sense, this argument is less about jurisdiction as it is about abortion, gun control and civil rights.

But consider the almost absurd nature of how it plays out here: Two polar-opposite worldviews (conservative and progressive) unanimously agreeing on a decision (a state may exercise jurisdiction over a present defendant), but getting into a gigantic squabble over why, that ultimately boils down to a grammatical question: in the phrase "does not offend traditional notions of fair play and substantial justice," is it the notions themselves which need to be traditional, or are "fair play and substantial justice" the notions which are traditional?

Fascinating.

And, I suppose, a fairly apt metaphor for the ongoing transitions in my thinking. I'm a little bit country and a little bit rock and roll... I suppose that if I were to call my notions traditional that would be as ambiguous as the traditional notions being debated here. I like it. I hope you do too.