On Wed, 21 Jan 2009 02:14:37 -0800 Steve Langasek <[email protected]> wrote:
> On Tue, Jan 20, 2009 at 11:45:23PM +0000, Anthony W. Youngman wrote: > >>> But surely, in order to do so, you must have broken a Federal > >>> statute? Not knowing the American legal system, I find it very > >>> odd that you could be sued in Utah, or in California under Utah > >>> law, if you've never been anywhere near Utah. > > >> Nope, in the federal system a state can enforce the laws of > >> another state if it so chooses. It's not required to, and in > >> practice, most folks would remove the case to federal > >> jurisdiction. But with federal removal, you've got a Federal > >> Court, applying a state law, against a resident of a different > >> state. Happens all the time. > > > So you're saying that, even if you have NO CONNECTIONS WHATSOEVER > > with Utah, you can be forced to follow Utah state law (of which, > > not having any contact with Utah, you cannot be expected to know)? > > > That's absurd! (Certainly to my mind!) > > No, he's saying that if you *commit a tort against someone located in > Utah*, you are subject to Utah state law. If you've committed a tort > against someone located in Utah, it is absolutely not true that you > have no connections with Utah. > > The question of how *much* of a connection you must have to a state > in order to be subject to their law is a fuzzy one that does get > debated by courts. > > >> We think it if the treaties between the nations allow for it. I > >> know it has happened in the past, I really can't speak with any > >> authority as to how often that happens and what sorts of law it > >> covers. But in the world of torts (which is what we are talking > >> about), I wouldn't be at all surprise to learn that I can bring a > >> tort suit against a foreign national in their own jurisdiction but > >> under *my* law. Understand the very important distinction between > >> a criminal case and a civil case, such as torts. Different > >> concepts, different policy objectives, different enforcement. > > > As I understand it, if it is legal in Britain then you cannot touch > > me. End of story. Unless there exists a contract between you and me > > that our dealings are covered by US law, then as a British National > > resident in Britain, then any claim you make against me must be > > under English law. > > Even if this is nominally true under British law, there is certainly > no reason for this to be the accepted norm under international law, > and therefore not grounds for dismissal of a case brought against you > in a US court. Just because you think you can *get away with* > committing torts against US citizens doesn't mean the tort does not > occur. Jurisdiction and enforceability are two different questions. > > For comparison with other European countries: it's been discussed on > this list in the past (in connection with choice of venue clauses) > that French law guarantees its citizens the right to defend > themselves in their home court - but it does not say that the claim > has to be brought under French law. > This thread gets into two separate doctrinal areas that even specialist lawyers can regard as arcane for edge cases: personal jurisdiction and choice of law. I read some postings on this list out of personal interest, but I have little to contribute to most of the discussion. I have done work on these issues, however, so maybe I can add some clarity, even if it wanders further off-topic from the original inquiry. When a court concludes that it has personal jurisdiction over a defendant, it means this court, for this defendant, for this claim, has proper authority to deliver a judgment that may be enforced against the defendant. For non-criminal cases, the court's analysis generally will focus on the defendant's "contacts" with the residents and territory of the government of which the court is a part. Two variations of a simple hypothetical fact pattern may illustrate this. A New York resident is injured by a product manufactured and sold by a German company in Germany and wants to sue that company in a New York court for negligence in the manufacturing process. In variation 1, the German company gets most of its revenue from export sales and the New York resident bought the product in New York from a store authorized by the German company to sell its products. In variation 2, the German company is small and has no export sales; the New York resident bought the product in Germany while on a visit; and the injury occurred in Germany during that visit. The New York court is more likely to find that it has personal jurisdiction over the German company in variation 1 than in variation 2. (Even though, in both variations, the claimed negligent manufacture took place in Germany.) Take a different case. A New York author writes and a New York publisher distributes, only in the United States, a book that a UK citizen claims to be libelous in a UK court. What threshold facts must be present for the UK court to decide that it has some power over the New York author? Once a court decides that it has personal jurisdiction and can hear this case against this defendant, the court must determine what rules should apply. This is governed by the doctrines of choice of law (or sometimes called conflicts of law). If the German manufacturer did everything right under German law, but New York law would require something more, which standard should be used by the New York court? Or, in a different type of case, if Microsoft is entitled under United States law to incorporate a browser into its operating system, is the EU required to follow that rule because the operating system and browser are (hypothetically) created in the United States? In the libel example, should the UK court apply its own strict rules or the much more liberal standard of United States libel law to the New York author? If a French citizen asks a United States court to find that a United States citizen violated a French copyright in France, should French law apply both to whether a violation occurred and to the amount of damages? Different governments (and their courts) make their own decisions on these kinds of issues. One final point. I am a lawyer. This email contains opinions about legal issues. It does not contain legal advice. This distinction is technical, but important. Lawyers are picky about this for a reason. At a high level of abstraction, if you receive legal advice from a lawyer, you become a client of that lawyer and that relationship includes various present and future obligations, potentially of time and money. No one on this list, to my knowledge, is a client of mine (and this email should not be relied upon to claim a client relationship was created). -- To UNSUBSCRIBE, email to [email protected] with a subject of "unsubscribe". Trouble? Contact [email protected]
