Speaking of Steve Sachs and civil procedure, I was recently reminded of this passage, from a recent article by Steve, on the question of whether the Constitution’s limits on personal jurisdiction focus on convenience and fairness or on something more like sovereignty (an issue that may well come up again in next term’s personal jurisdiction cases):
These concepts of convenience and fairness fail to account for another worry. Whether or not one agrees with the McIntyre plurality’s take on sovereignty (or its contractarian theory in particular), the authority of a distant court ought to be supported by some theory of obligation.
Suppose that, after an ordinary fender-bender in a neighboring state, an official visits you from the Tribunal de grande instance de Paris and says:
The person whose fender you hit has asked us to decide your case. We will hear it according to our own rules of procedure and evidence—not just about the kind of paper you file on, but about how intrusive discovery will be, what kind of experts can testify, and whether you will have to pay the plaintiff’s costs and fees if you lose.
Your arguments will be considered by a French judge, who was appointed by French politicians or selected by French bureaucrats. Your substantive rights and liabilities will be determined through our choice-of-law principles, which (all else being equal) tend to favor the laws of France. You can get a jury trial only if French law permits one (which it doesn’t), so the judge will decide all the facts. And any appeals will run to the regional cour d’appel and from there to our Cour de cassation.
This isn’t optional, by the way.
But you do have some protections. We’ll apply whatever U.S. federal law is relevant to your garden-variety tort case; our procedures won’t be inconsistent with your Constitution; and we’ve made arrangements for your Supreme Court to hear final appeals, albeit on federal issues only. And there’s no need for you to travel to France; we’ll hold all of the proceedings right here in your hometown — even in your living room, if that’s what you want.
Most people, on hearing this, would think it horribly improper. So would most lawyers. But what’s troubling about this arrangement isn’t its inconvenience, or any place-based burden it imposes. The trial can be held in your living room, and for all we know French procedures are just as fair as American ones. (Though probably not, if the plaintiff asked for them.) What’s troubling about this process is the obvious lack of legitimate authority. You haven’t voted for the politicians who pick the judges; you haven’t been asked what you think of the rules that apply; you haven’t had any say in the system that has all the say over you.
Where did these French judges get the right to “decree the ownership of all [your] worldly goods”? Why not Bill Gates, or the Pope?
The problem isn’t limited to bizarre hypotheticals and foreign courts. It arises daily in all fifty states. Why should other Americans be bound by rules of procedure, evidence, and discovery favored by New Jersey’s legislature; obtain a jury trial at New Jersey’s pleasure; have their rights and liabilities ascertained by rules preferring New Jersey law; or have their fortunes determined by judges appointed by New Jersey’s governor—or, worse yet, directly elected by the ordinary people of New Jersey? Sure, the federal government might intervene, if there happens to be federal law on point or constitutional rights at stake. But those issues matter in a vanishingly small fraction of cases. In all the rest, the defendant’s fate is placed in others’ hands.