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December 30, 2006

Tid Bits

Michigan's Anti-Affirmative Action Constitutional Amendment Not Enjoined.  It's not really a statutory interpretation issue, but this decision from the Sixth Circuit I found quite interesting.

Fourth Circuit Issues Two Opinions, One Upholding an Inmate's Religious Rights under the Religious Land Use and Institutionalized Persons Act of 2000 Over Constitutional Challenges.  The court's opinion in Madison v. US rejecting Virginia's constitutional challenge to 42 USC 2000cc-1(a) (fondly known as  "RLUIPA") can be found here.  The same court's opinion in Lovelace v. Lee, where the court split on various issues, can be found here.

December 30, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack

December 29, 2006

Worst Statute in the World for December, 2006

Okay, I've decided to make this a monthly feature. It will bring more drama, expectation, and thrills.

As I mentioned somewhere else, I'm writing a book on civil procedure for Carolina Academic Press. Finished the venue chapter yesterday. That explains this month's winner.

This month's winner is the first two subsections of 28 USC 1391, specifically (a) and (b).

Here they are, in all their convoluted glory:

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

Now, it looks like what you have to do, in order to figure out proper venue over a claim, is figure out whether subject matter jurisdiction is based solely on diversity, or not. If it's solely on diversity, then you go to (a), and if it's not, you go to (b).

But, look again: the first two clauses of (a) and (b) are identical. So, it doesn't matter whether diversity is the sole basis for subject matter jurisdiction: in either case, you can file the claim in a district where a defendant resides (if all defendants reside in the same state), or where a substantial part of the events occurred.

That leaves the third clauses of both (a) and (b). Are they different?

Both only apply if there's no other district with proper venue, so they share that, so let's get rid of that.

In diversity cases, venue over a claim is proper in "a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced," but over claims where subject matter jurisdiction is based on federal question, venue is proper in "a judicial district in which any defendant may be found."

Okay, so there are some differences: if the complaint has a federal question, venue lies where the defendant "may be found," and not in which "any defendant is subject to personal jurisdiction" when the complaint's filed.

But, according to the advisory notes, "may be found" apparently means the same thing as "subject to personal jurisdiction."

Okay, so that still leaves one difference: if the copmlaint has federal question, the personal jurisdiction issue is not limited to the time the action is filed.

When, then, is it determined? We don't know. I'd presume at the time of service of the complaint, since that's when venue is measured... but wait, that then means exactly the same thing as "at the time the action is filed..."

So, once we've gone through this, this is probably what these two sections could simply say:

Except as otherwise provided by law, a civil action may be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

This statute was revised about four times in the mid to early 1990's, after causing enormous social costs through poor drafting, and they still left it a mess. How many lawyers, do you think, had to muddle through this thing only to find that venue in 99.9% of the cases didn't turn on the basis of subject matter jurisdiction, and even if there is some difference between the two "clause 3's" they only apply when there's no other basis for venue?

But, it's fun to subject law students to poor statutory drafting. They might as well get used to it!

28 USC 1391(a) and (b), December's Worst Statute in the World...

December 29, 2006 in Current Affairs | Permalink | Comments (4) | TrackBack

December 28, 2006

On Making Sausage

I was reading an article in this week's Washington Post weekly edition about milk price supports, which you can find here. It was truly insightful and... sad, in that it told the power that money has in this country.

There's similar articles here

A long, long time ago, I worked as an intern in the Arizona State Senate. I remember watching a committee staff person working closely at a table with someone from the Salt River Project (what was then, and I assume now, a large utility company in Arizona), going carefully over a bill. I asked someone else what was going on, and she explained that the bill was to regulate utilities -- and the person from SRP was there to make sure it didn't regulate them 'too much.'

I wondered then, and now, if consumers had someone sitting at the table with a few hours to pick at and change the language?

Hope your Holidays are going well. Posting will slowly get back to normal.

December 28, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack