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Tag: Civil Procedure

Washington and Lee Law Review - Civil Procedure

Article

eBay, Permanent Injunctions, and Trade Secrets

by Elizabeth A. Rowe

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm even where the loss has been compensated monetarily. Moreover, where injunctions are requested but denied, the lack of irreparable harm seemed to have been the factor most often articulated as the reason for the denial.

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Article

Personal Jurisdiction and National Sovereignty

by Ray Worthy Campbell

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants are involved. By requiring an antecedent “top of mind” focus on the forum state when actions that lead to litigation are taken, the Court would exclude from U.S. litigation activities that bear a close relationship to the forum and that would provide a basis for jurisdiction in many, if not most, other nations. This matters especially because the U.S. conducts so much of its national regulation through litigation in state courts and through litigation based on state causes of action. This Article gives fresh emphasis to the notion that states are members of a shared sovereignty, and that state actions implicate national sovereignty as much as actions by the federal branch of government.

The problem is compounded by the incoherency of the Court’s “our federalism” state sovereignty analysis. Other commentators have not focused on how the Court’s assumption in recent personal jurisdiction cases that states are in purely rivalrous relationships contrasts with reality, which is increasingly recognized to involve overlapping, reinforcing, sometimes coordinated spheres of jurisdiction. Rather than treating the states as rivals involved in a zero-sum game, where an assertion of power by one undercuts the power and dignity of another, this Article looks at the polycentric, pluralistic nature of U.S. governance, where state members of a “more perfect union” coordinate, collaborate, pursue shared goals independently, and only sometimes compete.

State sovereignty ultimately is national sovereignty. To exaggerate concepts of state rivalry and exclusiveness in a modern age of legal pluralism serves only to diminish the regulatory reach of individual states, and, ultimately, the nation as a whole. The Court’s narrow focus on sovereignty threatens to make the scope of U.S. jurisdiction far narrower than that of other nations, and by Constitutionalizing that scope to make adjustments in rapidly changing circumstances difficult.

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Note

In re Government Attorney-Client Privilege: A Categorical Rule to Settle the Issue

by Luke Charette

This Note explores the reasoning and factors used by each of the federal circuits in deciding whether or not to uphold attorney-client privilege between the government and the lawyers representing it. After considering those factors, this Note argues that there should be a categorical rule that neither a state nor the federal government may invoke the attorney-client privilege in response to a criminal grand jury subpoena. To justify this conclusion, this Note outlines how current government attorney-client privilege case law, as well as the policy underpinnings of the privilege itself, dictate that a categorical rule is appropriate.

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Article

(Un)Conscious Judging

by Elizabeth Thornburg

Fact inferences made by the trial judge are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Non-conscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This Article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different inferences from the same record. It will then review the psychological literature to show ways in which judges are affected by unconscious forces. It concludes by suggesting reforms to judicial education, use of decision mechanisms that promote conscious deliberation, and civil procedure rule changes designed to increase information and decrease the impact of individual judges’ inferences.

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Article

Categorical Confusion in Personal Jurisdiction Law

by Todd Peterson

This Article posits that two significant problems in the Supreme Court’s personal jurisdiction case law have led to incoherent and irreconcilable results in cases involving individual and corporate defendants. First, the Court has imposed substantive due process limitations on a state’s assertion of personal jurisdiction without ever explaining why such limitations are constitutionally required. Second, in the absence of clearly enunciated principles of substantive due process, the Supreme Court has relied on poorly defined categories of the types of contacts that would satisfy the substantive due process requirement. In Part I, the Article discusses the history of the U.S. Supreme Court’s substantive due process limitations on personal jurisdiction and, in particular, the standards for corporate-activities-based jurisdiction before the Court’s recent cases on that issue. Part II discusses the Court’s failure to provide a convincing theoretical justification for imposing substantive due process limitations on personal jurisdiction. It also discusses the consequences of that failure in three doctrinal areas of personal jurisdiction law, the traditional basis of service on an individual in the forum state, specific jurisdiction and corporate-activities-based jurisdiction. Part III then analyzes in detail the four recent Supreme Court cases on personal jurisdiction, and discusses the mistaken assumptions underlying those decisions. Part IV explains how the Court’s personal jurisdiction rules, as a whole, suffer from theoretical bareness, the ambiguity of the substantive due process categories of jurisdiction, and the rigidity of the Court’s substantive due process analysis. Finally, in Part V, the Article offers some ideas for how the Court could begin to remedy the many problems with personal jurisdiction law.

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