Distraction and Deviance
Ah, Lexis. Source of many hours of legal procrastination. On the menu tonight? Suing the Devil: A Guide for Practitioners, by Charles Lablon, 86 Va. L. Rev. 103. (I'm trying to find a copy you can get to without Lexis, but for those of you in law or law school, it's there.) A taste?
"THESE are precarious times for plaintiffs' lawyers. With most of the asbestos manufacturers safely bankrupt, the tobacco companies looking for a settlement, and even the most gullible investors unable to lose money on Wall Street, there is a serious risk of a defendant shortage. To be sure, people continue to be cheated, harassed, and abused by corporate America in reassuring numbers, but recovering the costs of standard corporate malfeasance is just a job, not an adventure. It provides none of the opportunities for financial windfalls, moral indignation, and national television exposure that come from suing a really despicable defendant. It is somewhat surprising, therefore, that one notorious perpetrator of injury, misery, and wrongful conduct has remained curiously immune from the current onslaught of civil litigation. I am speaking, of course, about the Devil incarnate, Satan, Prince of Darkness.
I know that the concept of a lawsuit, preferably a class action, against the Devil strikes many lawyers as bizarre, perhaps even absurd. I completely understand such concerns. Obviously Satan is a formidable legal opponent. He is well financed, highly intelligent, very aggressive, and completely unscrupulous. I believe he has had formal legal training. Yet the point of this Essay is to show that in a world in which Philip Morris, Microsoft, and Rupert Murdoch are all targets of litigation, the Devil isn't really so tough. Moreover, while Satanic litigation does pose some unique jurisdictional and procedural difficulties, none of them, as I will subsequently demonstrate, poses an insurmountable obstacle to a successful lawsuit."
"Since that time, there have been virtually no reported instances of Satanic litigation. This may strike some of you as odd, since the Devil is obviously still heavily involved in commercial activity, and we all know how indispensable the threat of a lawsuit is to maintaining amicable business relations. If he has stopped resorting to the courts, how does Satan keep his business associates in line? After much consideration and research, I believe I have discovered the answer. I can state it in three words: alternative dispute resolution. It appears that the standard-form demonic contract, like the standard securities brokerage contract, now contains an arbitration clause. This explains not only why the Devil no longer resorts to litigation, but also why so many people and institutions these days seem summarily to be going to Hell.
Incidentally, the article cites the following case, great if you're reviewing Civil Procedure: United States ex rel. Mayo v. Satan & His Staff, 54 F.R.D. 282 (W.D. Penn 1971), in which plaintiff "alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff's downfall." The case is dismissed because: (a) the plaintiff can't gain personal jurisdiction over the defendant in this judicial district ; (b) "plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process"; and (c) failure to reveal a cause of action over which relief can be provided by the court . The court also questions if the case is maintainable as a class action, since while it met the requirements for Rule 23 , the court did not want to guess whether the claimant would fairly protect the interest of the class.
 I think the federal judge thinks well of his district here. Personal jurisdiction can be maintained under a theory of general jurisdiction if the defendant has 'substantial and continuous' contacts with the forum state. I guess His Honor thinks that limits general jurisdiction for the Prince of Darkness to California, New York, and other such dens of iniquity?
 Obviously, the defendant didn't file a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted, but I can't find the rule that allows a court to dismiss a claim without a motion from the defendant. Anyone help me out here?
 The class is too numerous that joinder of all parties is impractical (and I would have thought this countered the personal jurisdiction problem); there are questions of law and fact common to the class; and claims of the representative party are common to claims of the class.