1. CONCEPTUAL FRAMEWORK Choosing a Trial Court+ +

2. Personal (Territorial)
Jurisdiction
Power
Process
Minimum Contacts +
Substantial
Justice
&
Fair Play
Presence?
Consent?
Domicile?

3. Personal Jurisdiction
ala Yeazell
Basis
Process
Power
Consent
Minimum Contacts +
Substantial
Justice
&
Fair Play
Presence
Domicile

4. CONSENT CLAUSES The Options
Jurisdictional Waiver Clause
John Rudzewicz appoints Alyssa Vegter, resident in Miami, Florida, as his agent for service of process.

5. CONSENT CLAUSES The Options
Jurisdictional Waiver Clause
Effect
permits, doesn’t require, suit in specified place
waives defendant’s jurisdictional objections
½ way to forum clause
Valid?
Upheld
Nat’l Equipment Rental, p. 168

6. CONSENT CLAUSES The Options (cont.)
Choice of Law Clause
The parties agree that any litigation arising out of this agreement shall be governed by the law of Florida.

7. CONSENT CLAUSES The Options (cont.)
Choice of Law Clause
Effect
Specifies applicable law
Doesn’t affect where lawsuit is heard
Validity
Cf. Burger King, p. 141
Permissible to specify “law of Japan”?
See Rule 44.1
Limits?

8. CONSENT CLAUSES The Options (cont.)
Forum Selection Clause
The parties agree that any litigation arising out of this agreement shall be brought in the Dade County Circuit Court in Miami

9. CONSENT CLAUSES The Options (cont.)
Forum Selection Clause
Effect
Specifies where litigation must be brought
Validity
Upheld
Carnival Cruise Lines, p. 169

10. CONSENT CLAUSES The Options (cont.)
The Cognovit Note
John Rudzewicz appoints Ali Tarbox as his agent for the purpose of confessing judgment.

11. CONSENT CLAUSES The Options (cont.)
The Cognovit Note
Effect
Lawsuit filed
Agent appears for SP & admits allegations
Rare (often forbidden by state statute)
Validity
upheld if “knowing waiver” and consideration
Overmyer v. Frick (p. 174)

12. CO NSENT CLAUSES The O ptions (cont.)
The Cognovit Note
To challenge
Defendant becomes plaintiff
seeks to reopen judgment already entered
See Rule 60

13. THE POWER OF FORUM SELECTION CLAUSES
Which of the pj cases we’ve already studied could have been resolved by inserting a forum selection clause?
(p. 173, note 3a.)
Does that mean lawyer commits malpractice by not including one in every contract? (p. 173, note 2b)

14. REVIEW OF PJ RULES Carnival Cruise Lines v. Shutes, p. 169
Review of Personal Jurisdiction
Absent forum selection clause
Where could Shutes have sued?
Where could Carnival have sued?
Obstacles?

15. SKILLS: READING CASES Carnival Cruise Lines v. Shutes, p. 169
Rule Choice Options?
Court’s Rule Choice?
Do you agree? Why?

16. SKILLS: READING CASES Identifying Black Letter Law
What test did the court apply ?
Forum clause in form contract upheld if
Reasonable
Satisfies fundamental fairness
Not inserted in bad faith
Not used to discourage claims
No fraud, etc. to gain consent
Notice

17. SKILLS: ARGUING FROM PRECEDENT
Hypothetical: Consent on the Internet
WA Brandon owns Divine Chocolates.
Sells chocolates over internet.
Forum selection clause – KC Superior Ct
Must NY Beth sue Brandon in KC?

18. TAKE AWAYS Conceptual Frameworks
How does consent fit into the PJ framework?

19. TAKEAWAYS Consent Clauses Black Letter Law
Lawyers respond to legal doctrine
Recognize what consent clauses do
Black Letter Law
Forum clauses enforceable if
Satisfy fundamental fairness
Not discourage legitimate claims