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CONCEPTUAL FRAMEWORK Choosing a Trial Court

CONCEPTUAL FRAMEWORK Choosing a Trial Court. +. +. Personal (Territorial) Jurisdiction. Power. Process. Minimum Contacts + Substantial Justice & Fair Play. Presence?. Consent?. Domicile?. Personal Jurisdiction ala Yeazell. Basis. Process. Power. Consent. Minimum Contacts

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CONCEPTUAL FRAMEWORK Choosing a Trial Court

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  1. CONCEPTUAL FRAMEWORK Choosing a Trial Court + +

  2. Personal (Territorial) Jurisdiction Power Process Minimum Contacts + Substantial Justice & Fair Play Presence? Consent? Domicile?

  3. Personal Jurisdiction ala Yeazell Basis Process Power Consent Minimum Contacts + Substantial Justice & Fair Play Presence Domicile

  4. CONSENT CLAUSESThe Options Jurisdictional Waiver Clause • John Rudzewicz appoints Alyssa Vegter, resident in Miami, Florida, as his agent for service of process.

  5. CONSENT CLAUSESThe Options Jurisdictional Waiver Clause • Effect • permits, doesn’t require, suit in specified place • waives defendant’s jurisdictional objections • ½ way to forum clause • Valid? • Upheld • Nat’l Equipment Rental, p. 168

  6. CONSENT CLAUSESThe Options (cont.) Choice of Law Clause • The parties agree that any litigation arising out of this agreement shall be governed by the law of Florida.

  7. CONSENT CLAUSESThe Options (cont.) Choice of Law Clause • Effect • Specifies applicable law • Doesn’t affect where lawsuit is heard • Validity • Cf. Burger King, p. 141 • Permissible to specify “law of Japan”? • See Rule 44.1 • Limits?

  8. CONSENT CLAUSESThe Options (cont.) Forum Selection Clause • The parties agree that any litigation arising out of this agreement shall be brought in the Dade County Circuit Court in Miami

  9. CONSENT CLAUSESThe Options (cont.) Forum Selection Clause • Effect • Specifies where litigation must be brought • Validity • Upheld • Carnival Cruise Lines, p. 169

  10. CONSENT CLAUSESThe Options (cont.) The Cognovit Note • John Rudzewicz appoints Ali Tarbox as his agent for the purpose of confessing judgment.

  11. CONSENT CLAUSESThe Options (cont.) The Cognovit Note • Effect • Lawsuit filed • Agent appears for SP & admits allegations • Rare (often forbidden by state statute) • Validity • upheld if “knowing waiver” and consideration • Overmyer v. Frick (p. 174)

  12. CO NSENT CLAUSESThe O ptions (cont.) The Cognovit Note • To challenge • Defendant becomes plaintiff • seeks to reopen judgment already entered • See Rule 60

  13. THE POWER OF FORUM SELECTION CLAUSES • Which of the pj cases we’ve already studied could have been resolved by inserting a forum selection clause? (p. 173, note 3a.) • Does that mean lawyer commits malpractice by not including one in every contract? (p. 173, note 2b)

  14. REVIEW OF PJ RULES Carnival Cruise Lines v. Shutes, p. 169 • Review of Personal Jurisdiction • Absent forum selection clause • Where could Shutes have sued? • Where could Carnival have sued? • Obstacles?

  15. SKILLS: READING CASES Carnival Cruise Lines v. Shutes, p. 169 • Rule Choice Options? • Court’s Rule Choice? • Do you agree? Why?

  16. SKILLS: READING CASESIdentifying Black Letter Law • What test did the court apply ? • Forum clause in form contract upheld if • Reasonable • Satisfies fundamental fairness • Not inserted in bad faith • Not used to discourage claims • No fraud, etc. to gain consent • Notice

  17. SKILLS: ARGUING FROM PRECEDENT • Hypothetical: Consent on the Internet • WA Brandon owns Divine Chocolates. • Sells chocolates over internet. • Forum selection clause – KC Superior Ct • Must NY Beth sue Brandon in KC?

  18. TAKE AWAYS • Conceptual Frameworks • How does consent fit into the PJ framework?

  19. TAKEAWAYS • Consent Clauses • Lawyers respond to legal doctrine • Recognize what consent clauses do • Black Letter Law • Forum clauses enforceable if • Satisfy fundamental fairness • Not discourage legitimate claims

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