While the issue of whether a particular defendant "purposefully availed" himself of the forum state, a finding that the defendant did not purposefully avail himself of the form state is not necessary to find personal jurisdiction. The first question, of course, is to ask whether a particular state's long-arm statute provides for jurisdiction over the defendant. However, the exercise of jurisdiction, even if allowed by statute, must also pass constitutional muster. As the Supreme Court precedent stands today, there are two parts to the constitutional personal jurisdiction test: (1) Whether the defendant has the required minimum contacts with the state; and (2) Whether exercising jurisdiction over the defendant would comport with "traditional notions of fair play and substantial justice."

The purposeful availment test is but one factor in the first prong above. What's more, the Court has not specifically endorsed one view as to what constitutes minimum contacts; yet another manifestation of the conservative-liberal divide. Justice O'Connor's side of the plurality advocates the view that minimum contacts requires not only purposeful availment, but also putting the product into the stream of commerce as well as directing advertising or marketing towards that state. Not surprisingly Justice Brennan argued for a more liberal test, arguing that where a defendant placed its product into the stream of commerce with the knowledge the product will reach the forum state should be subject to personal jurisdiction in that state.

Purposeful availment and the larger question of minimum contacts aside, there is one way in which Middlebrook and Bible & Gospel Trust may be reconciled—fairness. The overall question in personal jurisdiction questions is fairness; the court needs to ask itself whether it seems fair, under the particular circumstances of the case at hand, for the plaintiff to hale the defendant into this particular court. If so, then there is personal jurisdiction; if not, there will not be. Would Anderson, of California, have expected that if he published defamatory statements about the Texas plaintiffs that he could be haled into a Texas court? A reasonable defendant most likely would have thought so. But would the Canadian defendant that maintained his website in Canada ever expect to be haled into a Minnesota court? This seems less likely than with the California defendant.

Because neither of the courts in these cases set out the tests they are required to apply with the kind of specificity that would be required on a law school examination, it is unclear whether they relied on purposeful availment, stream of commerce, stream of commerce plus, or traditional notions of fair play and substantial justice. Without a finding of minimum contacts, the only basis on which either decision could possibly rely would be the greatest thing that Burger King has given to the federal courts since the Angus Steak Burger— Burger King v. Rudzewicz, 471 U.S. 462 (1985): minimum contacts are not required when it appears that it is extremely fair for a defendant to be subject to the forum state's jurisdiction. A fairness inquiry, in its most basic form, tracks the framers' intent most closely and therefore should be the real personal jurisdiction test. Courts, however, often find themselves caught up in the minutiae of the various factors that the Supreme Court and inferior courts have formulated to help along the fairness inquiry and do not always keep in mind the basic purpose those factors were formulated to promote.

I'd never hold myself out as an expert in civil procedure. That's why co-blogger Pennoyer V. Neff is here. But I can't help but wonder about the soundness of a couple recent cases on personal jurisdiction. The cases seem to have hinged on the idea of "purposeful availment," a legal concept that basically says that if you take advantage of the benefits (loosely defined) of a certain jurisdiction, you may be held accountable in that jurisdiction for related causes of action, regardless of where you are or even where you were at the time (i.e. you could have been in another state even while you 'purposely availed' yourself of another state's privileges).

In Middlebrook v. Anderson, a federal northern district of Texas case, emails sent to residents of Texas were held sufficient to subject a California resident sender to Texas jurisdiction in a defamation suit. Another, very similar case (alleging defamation from a website) in federal court in Minnesota held that the long-arm statute could not reach the website's operator in Winnipeg, in Bible & Gospel Trust v. Wyman.

I can't help but think that the Minnesota ruling that didn't hale into court the Canadian resident is a lot better, eh? Thinking anew about the "minimum contacts" cases to establish personal jurisdiction (i.e. McGee v. Int'l Life Ins., Hanson v. Denckla, World-Wide Volkswagen, Asahi, Burger King v. Rudzewicz) seems to keep me in Minnesota's camp. Still, I realize that at some point internet activities must give rise to personal jurisdiction. But what is - or should be - enough? It'll be interesting to watch these and other cases trickle up through the courts in the future. Who knows, it may even make civil procedure interesting instead of thankfully long over.

Experimental economics has shown, in a wide variety of contexts, that people are most likely to be reciprocators. Even before modern experimental economics, game theory had suggested that people tended towards near-optimal tit-for-tat strategies. I'm thinking this has to have some relevance to online sociology. For instance, if I give you a warning or bad review (e.g. on an instant message system or auction site), you may try to do the same to me. But, at a minimum, you'll realize that you can't get away with being a jerk to me. You IM rude or inappropriate things to me, or the item I bought from you at auction turns out to be a piece of junk, you'll pay the price. Tit-for-tat. It seems like game theory and experimental economics are a perfect fit for analysis of online social networks, especially as economic transactions move more and more to these types of environments.

Are wikis democratic? The "volunteer fire department" at Wikipedia has more leverage than other users - in a sense, they have more than one vote. Is that a democratic system? Should wikis be democratic? Well, it seems plausible to think that wikis may yet be democratic. Ronald Dworkin tells us that equality must be conceived of in two dimensions: horizontally (across individuals) and vertically (across offices). To consider one without the other is absurd. Even a ruthless dictator could allow for equality among all citizens, albeit they might have virtually no freedom. On the other hand, equality across offices renders a government (or any organization, for that matter) useless. If senators didn't have more leverage than you and I (or had an obligation merely to echo the voice of their constituents), then the government would be severely disabled. The Dworkin view would lead us to believe that it is actually this increased leverage held by some that enables democracy to function. Therefore, Wikipedia is, in fact, still democratic.

Living in Manhattan, one can get along quite well without a car. Between subways, buses, and taxis, there's all the transportation you need. And with creative new services like by-the-hour online car rental, there's all the transportation you could want. Getting outside of New York, however, can be a little more difficult.

I left New York on Thursday for an all-day meeting in Washington on Friday. Despite initial hesitance, I went via Amtrak, as Penn Station is a mere 3 1/2 blocks from my apartment. This was my first Amtrak ride in a very long time — I have been flying to D.C. the last few times I've gone to the area. This is in part because it's sometimes cheaper to do so, and in part because of my last Amtrak experience. On a very long ride (scheduled for ~22 hours), my train caught on fire, ran over something, and de-railed. Sure, none of these events occurred in the usual sense and, thankfully, nobody was injured, but it was still a rather disconcerting experience, to say the least. I flew home.

The fire was only in the club car, but it left us without electricity (including most lights) from barely out of NYC to D.C. They never did determine what it was that we ran over, but it obviously wasn't too large, since we pushed forward — after the 1 1/2 hour inspection. And the train only left the tracks for a few feet — about 200 yards from the station. Of course, we had to wait aboard for four hours while the train was re-railed, since we weren't allowed to leave the train if not at a station. Oh, and the train had run out of all food and beverage (including potable water) about 8 hours before we were able to get off.

I was obviously pleased to arrive on-time in D.C. Thursday evening, having had a pleasurable ride and not even having anyone sit next to me the entire trip. Friday night's return was, however, a horse of a different color. Although nothing like the prior trip, I did have to stand from D.C. to Philadelphia. Fun times. And people that had seats weren't just thankful to have them. They had to get up every three minutes and push their way through the isle full of standing passengers. First to go get some chips and beer. Then to use the restroom. Then to...whatever.

Guess it's back to the airport for me.

In honor of St. Valentine's Day, a little discussion about what it actually means to "be in the red." Obviously, this is an issue that ranks rather highly on my pet peeve list. While I have no textbook out in the field, I think my stint in public practice as an auditor, albeit relatively brief, does give me enough accounting "street cred" to get away with this post.

Although common parlance among business types, the phrase "in the red" actually does little more than highlight how much the expression's users don't know about accounting. While the common method of teaching accounting includes telling students that "DEBIT MEANS LEFT AND CREDIT MEANS RIGHT," repeated ad nauseum, it isn't quite correct--at least not in every setting. Although the "T-accounts" used in virtually any accounting course will conform to this convention, that's all it is--a convention. Conceptually, debits and credits are just a sort of doppelganger to each other; they're always opposed to one another, regardless of their presentation.

Another common way of denoting debits versus credits includes showing the numbers as positive and negative numbers, respectively, generally denoted with the lack or presence of brackets around the number. When I say "positive and negative," I don't mean it in the mathematical sense per se, but rather it is used to show the conceptual, "double entry" relationship the numbers have to one another. However, just like using brackets to denote credits, the color red denotes the same, often used in conjunction with brackets.

Now recall what net income is. In its most basic form, it's simply REVENUES-EXPENSES= NET INCOME. Conceptually, that's (nominal account) CREDITS - (nominal account) DEBITS = NET INCOME. Obviously, one would typically hope that their NET INCOME account was sporting a hearty CREDIT balance. But wait... we already learned that CREDITS are RED. Therefore, positive income--not losses--puts one "in the red."

The Congress shall have the power...

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
U.S. CONST., Art. I, Sec. 8, cl. 7

CALEA is not a case of copyright or patent infringement. However, it does have a significant relation to innovation—or the "Progress of Science and useful Arts," particularly in the "hottest" areas of intellectual property around today. On the other hand, the government has undeniable interests in the protection of the nation and its citizens. It seems, however, that the former is not always considered to be as weighty an issue as the latter. But the very fiber of the nation is at stake. If economic history teaches us anything, it is that the U.S. is the nation innovation built. Deterrents to innovation should be taken very seriously.

Congress seems to have taken the role of innovation very seriously. "It is the policy of the United States ... to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services." 47 U.S.C. § 230(b)(3) (emphasis added). It seems apparent that Congress did not intend for the blocking and screening of offensive material to be subject to law enforcement approval. But it was not to be an issue of mandatory, unbridled orders to the private sector, either. The process of blocking and screening was to be encouraged, but it was to emphasize user control, not censorship. What is the proper balance between prohibiting illegal material (e.g. child pornography) and laws that end up proscribing large quantities of legal (even if offensive) speech? See e.g., the Pennsylvania Internet Child Pornography Act, 18 Pa. Cons. Stat. §§ 7621-7630 and CDT v. Pappert (.pdf)(finding unconstitutional the prior restraints imposed by the act).

Of course ISPs and any others involved in the delivery of internet service should be expected to cooperate with law enforcement officials. But cooperation need not require the blocking of vast swaths of protected free speech just because a small portion of the material sharing the same address is illegal. If the technology is unfeasible, then innovations that make it feasible should be investigated. But why should providers be forced to fundamentally alter the way that they function just because law enforcement cannot otherwise track criminals? Who really bears (or should bear) the burden or enforcement?

Of course, the law enforcement officials are not the "bad guys" beyond the pale of decency in this story. They doing their job and trying to do it vigorously. And we should all want that and applaud them for it. But sometimes the proper boundaries can be passed. The U.S. model is an adversarial one, one where each side is supposed to do the best they can at their assigned task. But for this model to work—and not devolve into a tyrannical regime—we also need the law enforcement adversaries that will stand up for free speech, even in its most extreme forms. That's how we reach the "proper" limits.

Balancing the interests of government monitoring, intervention, and prosecution against free speech values is certainly not easy, but neither is it something new. Two competing, but strong, interests are at stake. To the extent that the FBI and DOJ intend that technology be designed with their interests in mind and, effectively, subject to their approval, it is a very sad day for values of free speech. Innovation is a powerful weapon, one that makes powerful demands of all those that stand against it. To censor innovation, rather than innovate in response, is not acceptable.


For more information see:
FBI/DOJ joint petition (.pdf) (March 2004)
Center for Democracy and Technology's April 2004 comments to the FCC (.pdf)