Fabu-LAW-sity, Part I

In my Civil Procedure class (which only a few days ago I realized was distinguished from "Criminal" Procedure ... ohhhhhh...) we are discussing personal jurisdiction. When can a state gain jurisdiction over a person or a corporation? The early, famous case Pennoyer v. Neff creates a strict rule for establishing general jurisdiction over a person (called, funny enough, the Pennoyer Power Theory of Jurisdiction) which holds that states have exclusive jurisdiction to the persons and property within its territory and no jurisdiction over persons and property outside of its territory.

In later years, the courts had to determine how to address corporations under this rule. Not having a body, but being a metaphorical body, the courts established two "legal fictions" - metaphors - for allowing jurisdiction over corporations who were technically outside of the state: 1) "presence" (i.e. if a corporation has a "presence" in the state, it does a lot of business there) and 2) "implied consent" (i.e. if a corporation was "doing business" in the state, it was implied that it had agreed to jurisdiction there).

These metaphors were deemed illogical by a group of folks called Legal Realists (again with the creativity here) and were swapped out with a standard in a case affectionately called International Shoe. "Presence" becomes "certain minimum contacts" and "implied consent" becomes a fairness test, "such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice."

But, says problem #6 in the notes on page 97 of my casebook, what about in the case of an individual person, who is NOT a resident or citizen or physically present at the time in a particular state, but who "does business" there to such an extent that it might be analogical to an out-of-state corporation? For there is one (and only one!) such a case, Abko v. Lennon , in which a certain Mr. Richard Starkey was deemed eligible to be sued in the State of New York because, the plaintiff alleged, he went about "doing business" there with minimum contacts and fairness and all the rest.

And to this I said, Well, those minimum contacts and fairness standards stem from (and override) the metaphors of "presence" and "consent," which were only created because of the need to analogize a corporation to a person. Analogizing back the other way, then, would seem to undermine the whole process, because we do have sufficient standards for determining whether a person is under a state's jurisdiction or not. So we obviously need a standard here regulating the types of individuals that this special case can apply to, so as not to offend the entire system of due process. And I would suggest the proper standard here would be that the defendant can be subject to general jurisdiction if it can be shown that he or she is "bigger than Jesus."

...

OK, I didn't say that last part aloud. It's a hundred person class. But I sort of wish I did. ;)