The Supreme Court, final arbiters in the U.S. court system, is busy. Unfortunately the Supremes cannot decide all of the cases that arise in a busy country of 400 million people. So these nine honorable justices need to allow the lower courts, the federal circuit courts, the state supreme courts, the state appellate courts, the trial courts to do their work. They need to allow lawyers to advocate, arbitrators to arbitrate, judges to judge. The judicial system is enormous. It involves hundreds of thousands of advocates for prosecution, defense, not to mention the bailiffs. There is no point in the Supreme court to develop black letter law so clear so binding so severe that it straightjackets these operators, straightjackets the judges in the lower courts. they are on the ground. they have access to the facts. they can see the greed in the eyes of the plaintiff or his fear. they need to judge according to the law, sure, of course. But they also need to have discretion. And its the Supreme’s job first and foremost to see that this wiggle room is left in the system.
The problem is in the reading of the supreme court decisions this is mostly ignored. Teachers, students, practitioners alike struggle with vagueries of court decisions– what the hell are they saying about minimum contacts in the forum state? it has something to do with a guy who opened up a burger king franchise in Michigan and signed a bunch of contracts in Florida and now his Burger King is going bust and he ain’t paying the Miami headquarters and BK is trying to bring the guy in and make him pay but he’s saying no way in hell, he aint ever been to florida and he’s not going to start going there now just cause BK headquarters wants to save some cash and bring in all its renegade franchisees into Florida. Okay so that’s Burger King v Rudzewicz. The Supreme Cour has all this fancy jargon: “defendants purposefully availed themselves of the forum state.” The defendants had a “substantial and continuing relationship” with BKing headquarters in Florida. Therefore these defendants should have anticipated being haled into Florida and due process (and here Brennan is wetting his pants) would not be violated.
Okay, but what really are they saying? Abstractions: defendants “availed themselves” they “had a substantial and continuing relationship.” What’s that? What specifically is substantial? what specifically is continuing? we could get into the details of the case… Rudzewicz remitted their franchise fees and royalties to Burger King’s Florida, Rudzewicz’s partner signed a contract in FL, there is a choice of law clause. But really it all adds upto breach of contract. BK wins.
What example does this set for other courts? The same as for law professors– they can no w puzzle over “minimum contacts in the forum state.” They can ask “well what is substantial and continuing relationship anyway?” They can sit around the fireplace and opine about how things have come a long way from the days of International Shoe, when “minimum contacts” and “substantial and continuing” first came up. Some things die on the vine, this one expands. But the the Supremes do their job not so much by judging as by suspending judgment. Let the lower courts decide. The devil is in the details, so the lower courts be attentive to these details without getting in their soup. If you want to understand civil procedure don’t look at what the judges say, but what they don’t say. That’s where the action is, not judging but suspending judgment. They higher the court the less judging goes on. They take the broad view, the aerial view. They listen with the long ear. etc.
Terms Used: black letter law, burger king, International Shoe, Rudzewicz, supreme,