PLS 780Week 3

Agenda

• Jurisdiction and online activities • Managing litigation risk and the role of jurisdiction• Alternative dispute resolution in cyberspace

Jurisdiction

• Jurisdiction is the authority of a court or panel to hear a lawsuit.

• Founded in the 14th amendment’s due process clause jurisdiction is the cornerstone of procedural due process

• Procedural due process must be followed before anyone is deprived of life, liberty or property

• Why is it an important idea when it comes to justice and effective rule of law?

Jurisdiction concepts

• Personal jurisdiction• Subject matter jurisdiction• In rem jurisdiction

• Long arm statutes

• Venue

Personal Jurisdiction

• Personal jurisdiction is the power of a court over the parties in the case.  Before a court can exercise power over a party, the constitution requires that the party have certain minimum contacts with the forum in which the court sits.  International Shoe v Washington, 326 US 310 (1945).

• Three art test: The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections (2) the claim must be one which arises out of or results from the defendant's forum-related activities and] (3) exercise of jurisdiction must be reasonable.

Personal Jurisdiction online

• How can minimum contacts be established in cyberspace?

• What is the basis for ‘presence’ or contact?• Does the old standard of systemic and continuous

apply?• Why would there be problems with applying

International Shoe as precedent?

Minimum contacts

• How do we establish minimum contacts in cyberspace?

• How “purposeful availment” established when you are just running a website? Can it be?

• What are ‘activities within the state’ when it comes to internet presence? How can you establish activities within the state in the context of the internet?

• What is reasonable?

Copyright violator in

UK

Server in Cayman Islands

Author in US

Calder v Jones

• Facts?• Issue?• Holding?• Reasoning?

Tamburo v Dowrkin

• Facts?• Issue?• Holding?• Reasoning?

Yahoo v LICRA

• Facts? • Issue?• Holding?• Reasoning?

Oldfield v Pueblo de Bahia Lora

• Facts? • Issue?• Holding?• Reasoning?

In re Pirate Bay

• Facts? • Issue?• Holding?• Reasoning?

Zippo Manufacturing v Zippo Dot Com

• Facts? • Issue?• Holding?• Reasoning?

Is litigation always the answer?

• Costs• Toll on resources• Initiating law suits is time consuming• How is this best decided (decision to pursue

litigation?)• What alternatives are there?

Managing litigation risks

• Forum selection clauses in terms and conditions• Choice of law provisions• Must be reasonable, conspicuous, and not produce

undue hardship• In consumer contexts courts oftentimes fail to

uphold them. Why?

Alternative Dispute Resolution in Cyberspace

• Very popular idea• Online mediation to resolve online disputes• PayPal is a model in this regard• What do they do? Could other global ecommerce

companies easily adopt this strategy? Why or why not? Is this good for consumers? The internet?

Online dispute resolution

• Instead of mediation or arbitration in real life it takes place wholly online

• After referral, intake, contract, input, output and analysis, parties ‘meet’ in a secure online resolution ‘room’ which allows for voice transmission, review of documents and collaborative drafting of resolutions

• What is attractive about this idea or method for resolving disputes that arise online?

• Problems or limitations?

Week after next week

• No class!• Concepts Quiz on Chapters 8 and 9 Week 5• Next writing assignment will be due Week 6• Extra credit (missed a quiz? Didn’t hand in a writing

assignment? Missed a class?) due (email me before class week 5) week 5: Write a brief essay (3-5 pages) on the pros and cons of online dispute resolution after reviewing this article (available on Westlaw) 27 J. Marshall J. Computer & Info. L. 81