Legal scholars should not do this to first year students
As part of our reading for tomorrow, we're reading Linda S. Mullenix's Another Easy Case, Some More Bad Law: Carnival Cruise Lines and Contractual Personal Jurisdiction (Texas International Law Journal, Spring, 1992), a rather histrionic account of the Supreme Court's decision in Carnival Cruise Lines, Inc. v. Shute 499 U.S. 585 (1991). At first reading, I stumbled over the following passage:
The Shutes had once again prevailed in their efforts to sue Carnival Cruise Lines locally, rather than being haled to Florida.
I did a bit of a double-take, but then figured that maybe it was an ambiguous clause: Carnival was a Panamanian corporation, and so even though its main place of business (and preferred jurisdiction) was Florida, maybe it could still be haled there. But then it happened again:
While it is interesting and true that ships travel to many ports of call, and that their corporate owners have an interest in not being subjected to litigation in multiple forums, these self-evident truths do not suggest why it is any better or fairer to force an injured plaintiff to be haled into some distant court of the defendant's pre-arranged choosing, or forego the right to sue altogether.
[emphasis mine in both quotations]
Have I completely missed the point of several weeks of civil procedure? I was under the impression that a plaintiff (through a complaint) haled the defendant into court, and that a defendant wasn't the one doing the haling. Maybe a forum-selection clause could limit the places in which a plaintiff could summon, but he can't be forced to bring a suit, can he? I thought the whole point of this jurisdiction stuff was that the defendant was the only person being forced to go anywhere, and that jurisdiction was the limitations of his choice.
Mullenix is pretty overwrought in her language, so this might just be another example thereof--but can one of you fill me in if I'm missing something?
Update: Someone tell me this is another howler: "The burdens placed by a state upon an absent plaintiff are similar to and of he same magnitude as those it places on an absent defendant. Where an out-of-state plaintiff is summoned by a defendant through a non-negotiated, nonconsensual forum selection clause, the plaintiff is faced with the full powers of the State to render a judgment against it." True, she's reversing the language of a Supreme Court ruling, but she then states, "This paragraph does not stretch the imagination."
Help! I'm lost!
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