Justice Robert H. Jackson– of the U.S. Supreme Court and the prosecution team at Nuremberg— author of Mullane.

A bit of 4L stuff here– the stuff they never mentioned in Civ Pro class because it was so basic as to be assumed [ahem, we all know what assumptions do].  Your assigned readings today are Mullane v. Central Hanover Bank Trust Co, 339 U.S. 306 (1950)  and  Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).  Additionally, read the Hague Service Convention and the Supremacy Clause.  Be prepared to discuss both cases in a sadistic Socratic “rolling boulder” scenario.

The topic: service of process, both (1) generally speaking and (2) more specifically as it relates to defendants located abroad.

To boil it all down, a plaintiff has to tell a defendant that a lawsuit has been filed and the defendant has X days to answer the complaint.  The defendant is literally summoned to court by the plaintiff.  But there’s nothing in U.S. law that absolutely, positively requires that process be placed into the hands of a defendant.  Nada, zip, zero, zilch– despite how old TV shows might portray the event.  To the chagrin of many defendants, they can’t simply refuse to take hold of an envelope when a process server walks up to them.   The encounter itself is sufficient, regardless of their acceptance.

Conversely, it’s not enough for a plaintiff to tack a summons on the bulletin board at the neighborhood coffee shop, in the hope that the defendant will see it.  The plaintiff has a responsibility, and it amounts to this:  service by a means reasonably calculated to give the defendant (1) notice and (2) an opportunity to defend against the claim.  (Pay attention to that verbiage, because there’ll be a quiz later on.)

The methods most often used:

  • In most instances, a “means reasonably calculated” entails a sheriff, marshal, or professional process server walking up to the defendant– or up to the defendant’s house, or into a corporate defendant’s registered office– and handing him/her/it an envelope of documents.  If he* refuses to take it, too bad.  The person serving can simply drop the documents at his feet and the job is done.
  • “Reasonably calculated” can also include serving someone by mail.  At least legally speaking, it’s on solid ground.  Factually, though, a bit shaky.  As in “prove it, pal.”  If you can’t demonstrate that the defendant actually signed for the package, you’ll have a tough time claiming that he was served– especially if you can’t prove that you have the right address.
  • And a method that we old duffers may recall is the “legal notices” section of the local newspaper.  Service by publication, they call it, and it’s still on the books in lots of jurisdictions to this day.  As a last resort, I’m okay with it, just to demonstrate that the plaintiff is trying, even though the defendant has gone deep underground (ie: vanished).  But it’s only okay only everything else has been tried and failed.  Honestly, when is the last time a non-lawyer read the legal notices section in the local paper?  At that, when’s the last time most people read the local paper?  A gross legal fiction if ever there was one, but if a defendant has gone completely dark, it’s the only way.

Overseas, things work a bit differently, especially in civil law jurisdictions (eg: anyplace that wasn’t once a British colony).  Service of process in civil law systems is a prerogative of the court, rather than the responsibility of the plaintiff.  Long ago, a method called notification au parquet entailed tacking a notice on the aforementioned bulletin board– only the board wasn’t at the local coffee shop.  It was at the public prosecutor’s office.  Today, N.P. has pretty much gone the way of our newspaper notices– still on the books in many places, but given its lack of realistic odds of success, this (even more gross) legal fiction is also a last resort.

But back to today’s assigned reading.  Mullane set out the “means reasonably calculated” standard.  Schlunk takes that idea a step further by confirming that if a defendant has to be served in another country that is party to the Hague Service Convention, then the Convention’s strictures must be followed.  Period.  The Supremacy Clause puts it above FRCP and state rules (although FRCP and quite a few states have codified Schlunk anyway).

In most civil law jurisdictions, that means the private process server option is off the table– even if the “destination state” doesn’t object to Article 10.

The ultimate takeaway: don’t play fast & loose with the defendant’s right to notice, and certainly don’t play fast & loose with the doctrines that govern how things have to happen when paper crosses a border.

Class dismissed.  See you next week when we discuss the extraordinary value of Civ Pro professors who wear bow ties.**

* With a nod to gender equality and an accurate statement by Mitt Romney (he was right, I hate to admit), I’m leaving out the he/she/it distinction from here.  I use “he” merely for simplicity.  My mom would thwock me on the head if I were intentionally disrespectful to women.  My wife and sister would join in.  And they’d be justified.

** A bit of an homage to my good friend Jeffrey Berman, who retired a couple of years ago as Associate Dean at UMKC Law.  He was my Civ Pro 1 professor, and used Beanie Babies to beautifully illustrate the concept of joinder.  We never got into the tall weeds of service of process (thus the impetus for this post), but I learned a bunch from him.

This caused no small amount of anxiety about his presence in my CLE lecture in Paris in the fall of 2016.  Teaching your teacher is an awesome, yet incredibly daunting, experience– especially when you live in the subject the fellow taught you.  But he came up afterward, shook my hand, congratulated me, and said he learned a bunch.  Like the Grinch’s heart on Christmas morning, my head swelled to three times its normal size that day.

I have on very good authority that Jeffrey still wears a bow tie as he teaches 1L Civil Procedure as professor emeritus, and 1Ls come out of the Beanie Baby lecture with a keen understanding of how whales can sue husband & wife unicorns.  Just sayin’.

(Wm. Grimes, via Wikimedia Commons.)

Our handy-dandy “How to Serve Process in China” guide has been posted for quite some time.  Pretty straightforward stuff, given that the Chinese declarations to the Hague Service Convention eliminate Article 10’s alternative methods from the equation.  There’s only one way to get it done, and that is by filing a USM-94 with the Ministry of Justice in Beijing.  On its face, a seemingly simple undertaking… rock & roll that thing on over to the PRC.

Not so fast, though.  It’s always been a bit more complicated than that.  For starters, the Chinese bureaucracy is excruciatingly slow– historically, they’ve taken six to nine months to return a proof of service.  Lately, though, more than a year passes, and there are rumblings in the transnational litigation community that they’ve stopped executing U.S. requests altogether.  But Hague strictures remain mandatory doctrine in U.S. procedure [see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) for more], so you have to at least attempt it.  And unlike their counterparts in Russia, the Chinese have not expressly stated that they will not execute U.S. Hague requests.  Instead, China assesses a reciprocal fee of $95 per request– as a countermeasure to the U.S. fee charged due to Congress’ outsourcing of the Justice Department’s Central Authority function.*

But recently, two critical developments have come to light, and practitioners need to know about them:

First, the reciprocal fee can no longer be submitted by check.  The fee has to be wired to our friends in Beijing, and a wire transmittal confirmation must accompany the Hague request instead of a bank draft.

Second, they moved!  And they didn’t tell anybody for a couple of months.  The new address for China’s Hague Central Authority:

Ministry of Justice of China
International Legal Cooperation Center
No.33 PingAnLi XiDaJie
Xicheng District, Beijing,100035
People’s Republic of China

Critical information right there.  And there’s been no official notification to the Hague Conference for a website update– as of this writing, the Conference’s site still shows the old address (which is summarily walled off, my courier tells me) and it can only be updated upon official notification from Beijing.  An update is coming eventually, I’m confident, but meanwhile a good many requests could be lost in the ether.

* I still happen to think the Russians are completely justified in their recalcitrance.  I also think the Chinese are completely justified in their reciprocal fee requirement.  The Convention prohibits fees, but we charge one anyway because Congress decided we didn’t need all those gubmint employees drawing a paycheck.  Now, to be sure, the Central Authority function is outsourced to a top-flight organization– and I’m a huge advocate of outsourcing where it’s reasonable.  But the United States charges foreigners a fee for something that ought to be a routine government function, provided at public expense.

(Public Domain, courtesy Jayess, via Wikimedia Commons.)

My family is populated on both sides by blue-collar workers and farmers, going way back to the Old Country (ie: various parts of northern Europe).  Part of the ethos I gained from all four of my grandparents is “fix the damned thing yourself.”

Put another way, if that doo-hickey is so complicated that you need to hire somebody to fix it for you, you don’t need it that badly.  As a result, our houses have historically been a mishmash of DIY plumbing, wiring, plastering, and various code violations.  We never hired a plumber at $100 an hour– we just fixed the damned thing ourselves.  Or we called the old man (my maternal grandfather, Clyde*) and he fixed it.  But the old man wasn’t concerned with aesthetics.  Or efficiency.

Although we saved a few bucks in the process, we wasted a whole bunch of time and created a whole bunch of ugly-but-functional physical plant.  “Does it work?” and “did you save a buck?” trumped other considerations like “is it efficient?” or “could your time have been better spent elsewhere?”

Going way back to the Old Country, my family didn’t have much choice.  Saving a buck was critical to having food on the table– and we hated having to take the government cheese, although it made better sandwiches than the expensive stuff.**

As I started practicing law, I began to recognize the wisdom in hiring someone else to do the job.  I now hire plumbers and drywall guys and painters– not because I don’t know how to do those things.  I hire them because I don’t do them well, because it takes me six times as long to produce functional-but-ugly, and because I bill more than they do, so it just makes sense.  When I vary from that practice, bad things happen.  Peggy and I needed a new kitchen faucet earlier this winter.  Simple stuff, putting in a faucet, so off to Sutherland’s we go.  This ain’t rocket science, we said.  And it’s true.  Putting the thing in took all of twenty minutes.

Getting the old one out took two hours.  Had it been done by a pro, it would have cost me about twenty minutes of billable time.  I should have adhered to the theory and outsourced it.

An interesting article popped up in my newsfeed from the Business Journal a few weeks ago.  Jim Blasingame laid out a simple three-question test to determine whether a particular task or process ought to be outsourced…

Blasingame’s Outsourcing Power Question: Must this task be done in-house? 

The answer will come from these three questions:

  1.  How much control do we lose, and can we live with it?

  2.  What impact will our decision have on customers?

  3.  How much of not using outsourcing is about ego?

Now, I’m biased here, but I think much of what makes a law firm run should be farmed out.  IT, translation, investigation & process service, appellate work, accounting & billing, coffee service.  Those processes do require that a lawyer cede some control.  But they can have a huge positive impact on a client’s checkbook– efficiency does that naturally.

Far be it for me to ever challenge anybody’s ego.  I’m a lawyer.  All of my clients are lawyers.  And although we may not all have massive, outsized, bigger-than-life egos… it’s a rebuttable presumption.  And I’ll presume that much of the hesitation lawyers feel about outsourcing is as much about ego as about fear.  (Fear?  Yes.  Fear of a malpractice suit or disbarment.)

But we get a whole bunch of functional-but-ugly if we don’t call in some help– and functional-but-ugly is usually pretty inefficient.

* Clyde was an Air Force fighter jet mechanic in the early 1950s, and joined the union at the Sioux City Stockyards the same day he met a young U.S. Senator named John F. Kennedy.  I never saw a piece of machinery he couldn’t fix, and he could tune up a Ford truck engine so well that it would sing Puccini arias– it just wouldn’t look pretty.  Regardless, I did not inherit this talent.

** For the uninitiated, the USDA gave away surplus food decades ago– the chief give-away being in the form of processed American cheese.  It benefited struggling farmers, it benefited poor and working class families who’d fallen on hard times, and it gave conservatives a huge political punching bag.  But I gotta tell you, there has never been a better grilled cheese sandwich than the ones we made with day old bread from the Metz Baking thrift store, a couple of slices of government cheese, and the surplus butter that came with it.

This is a reboot of a post from last year, but it bears repeating: summonses in bankruptcy adversarial proceedings must be modified if they are to be served on a defendant located abroad.

The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court.  Perfectly logical.  And Rule 7004 governs how to serve the summons.  Again, logical.  But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.

The reality is that a bankruptcy action is going to be served under Rule 4 in most cases.  That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad.  Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it.

Bankruptcy lawyers are under no heavier a burden than the rest of us.  No difference in how you get service effected, whether a bankruptcy adversarial proceeding or a personal injury suit.  There’s a problem, though:  proper Hague service takes a while— a very long while in many instances– and bankruptcy summonses must be answered within thirty days after issuance.  Not a big problem here at home.

But, hang on, says the adverse party.  It is a problem here at home.  You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer? 

Well, no, not exactly.  The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e).  Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).

But 7004(e) applies only within the United States.  The seven-day rule doesn’t apply when serving abroad.*  So how to get around the expiration?  Simple.  Just modify the language.

To be fair, any adversary is going to need two or three weeks to properly answer a complaint.  This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?).  Simply put, though, if you have to serve an adversary outside the United States, it ain’t gonna happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.  But if it’s not done in either of those two countries, forget it.

Tell the Clerk that the summons (Form B 250A) must set a deadline based on the date of service— not based on the date of issuance.  Best bet: go 21 days, just like you’d have in a regular AO440.  It doesn’t have to be an overly complicated edit, and it doesn’t have to alter the substance of the document itself.  Seriously, the picture above shows it all.

Woman in Gold, Gustav Klimt, 1907

Here we go again.  Every few weeks, somewhere in these 50 states, a case gets dismissed for lack of proper service on a foreign sovereign (or foreign state instrumentality).  There’s not a single rule, statute, or customary practice that ought to tell a plaintiff that just dropping a summons & complaint on a receptionist’s desk at a foreign diplomatic mission is effective. Write this down…


Unless they’re exceedingly dense, opposing counsel is going to 12(b)(5) the hell out of your claim.  Very likely after Rule 4(m)’s 90-day deadline passes (uh oh).  Your client will be less than amused.  So don’t even try.  No, really.

Late one afternoon, on a plane ride home from Italy, I clicked into that high-tech touchscreen (you know, the one that works sometimes) on the seatback in front of me.  I’ve always had a bit of a crush on Helen Mirren, so I spent a very worthwhile 109 minutes watching Woman in Gold.  It really is an incredible film, depicting a Los Angeles woman’s quest to recover a legendary painting that had been stolen from her family in the early days of the Nazis’ attempt to eradicate the Jews of Europe.

Some five decades after the war, she learns that the painting hangs in the Austrian state museum and, with the help of an energetic young attorney (who looks strangely like the Green Lantern), launches a lawsuit against the gallery that purports to own it.  Because the gallery is owned by the Austrian government, the Green Lantern says process has to be served by sliding the summons & complaint through a teller’s window at the Austrians’ L.A. consulate.  And litigation begins in earnest.

Had I been alone in my own home, I would have emitted a deathly scream unlike has been heard in Kansas City since we dropped the 2014 World Series.  I’m Norwegian, so it would have looked like this:

But… aircraft decorum prohibits such noise when fellow travelers are trying to sleep, so I kept my mouth shut and grumbled through the rest of the movie.  Why the mental torture?


There’s no way in hell that the real Randy Schoenberg got it done that way.*  Not a chance, unless he really was young and green (okay, that I understand) and the lawyers hired by the Austrian government were simply clueless.

If they weren’t clueless, it would take all of seven minutes to draft the 12(b)(5) motion.  And that includes time enough to open and pour a Stiegl to consume upon completion.

In reality, the Foreign Sovereign Immunities Act controls the method of service– and in this case particularly, 28 U.S.C. §1608(b).  That statute, in turn, raises the question of how service is effected in Austria.  Simply put, a Letter Rogatory.  End of options before resorting to diplomatic note.

And because HOLLYWOOD SCREWS UP THE RULES, lawyers far & wide stop short of investigating how to do it properly.  It staggers the imagination.

Seriously…  just do this.

* I emailed the man himself.  Randy, dude, how’d you really do it?  No answer.  I really blame Hollywood scriptwriters for this, in the same way infantrymen curse filmmakers who lack the good sense to hire Dale Dye.

Adare, County Limerick.  Oh, yeah– ask for Chloe at Pat Collins.  But be aware what ye say… all the pubs in Adare are related.  Her cousins, Julianne and Jason, work at Auntie Lena’s down the block.

We’ve been on “vacation” since last weekend.  I use quotation marks because, in all reality, I cannot disconnect completely, as it would be a disservice to my clients– all lawyers who need help navigating the cross-border issues that they never touch on in law school.  Everybody with an active matter knows I’m overseas, and they’re incredibly respectful of my time and circumstance, but I take great comfort from the fact that I can still work no matter where I am.  Peggy is not incredibly pleased when I pull out my phone to answer an email, but she understands the challenge.

Just today, a colleague shot me a question that I was able to answer– quickly and definitively, on my phone– from pub in County Limerick, Ireland.  Ponder the practice of law today versus the practice thirty years ago.  Answering that question would have taken either several days or a whole bunch of dollars– probably both, and definitely, not from Pat Collins’ Pub.

But in a matter of minutes, I was able to tell her exactly what she needed and, hopefully, save her client several hundred dollars.  It cost me all of seven cents, thanks to the miracle of the Internet.  I called her and said, “yeah, no worries– do XYZ and you’re fine.”  Not a chance I could have done that in the 1990s.

Our economy is no different– we are part of an interconnected world.  An inextricably linked world.  Personally, I like that.

The Ha’Penny Bridge, across the River Liffey, Central Dublin.

This morning, Peggy and I awoke in Dublin, the capital of the Republic of Ireland.  I’m incredibly fortunate to have traveled extensively since I was a young kid (Army brats never really shake the wanderlust), but until yesterday, the Emerald Isle was an unchecked box on my list.  I’ve been waiting decades for this, and it does not disappoint.  We’re here not only to see the sights, but also to build relationships with colleagues who serve Irish defendants for my clients.  It’s a great mix of business and leisure.

Throughout Dublin, there’s an undercurrent of revolutionary spirit, even a century after the Easter Rising and the subsequent advent of the Irish Free State.  Homages to Daniel O’Connell and Michael Collins and Wolfe Tone are everywhere, much as Washington and Jefferson and Franklin abound in the District of Columbia.  Atop the political history is a layer of culture and vibrancy– and even refinement– that make Dublin truly a world-class capital, even though it governs a country far smaller and less populated than my home state of Missouri.

On the downside, Dublin is expensive, it’s touristy, it’s aged, and it’s a bit grimy.  Just like every other big city.  Hard to criticize a major metro for any of those things when it has so much else to offer.

But the most striking thing I’ve noticed about Dublin is its distinct multicultural atmosphere.  This is, as far as I can tell, among the most European of European cities, perhaps second only to Brussels.  In a few hours’ time, I heard a dozen different languages and encountered people of every hue, faith, and economic class.  It’s not a stretch to predict that, following Brexit, the Celtic Tiger will awaken once again and make Dublin the English-speaking capital of a renewed Europe.

That’ll be exciting to watch.

Aside: I highly recommend the concept of VRBO– Vacation Rental By Owner.  It’s really a cross between AirBnB and a traditional hotel.  For about the same cost as a standard double room in a Hilton or Intercontinental, we have an entire apartment in Smithfield, just steps away from the Jameson distillery (they don’t make whiskey there anymore, but that’s beside the point!).  If you have occasion to visit Ireland’s capital, check out Dublin City Rentals.  Ask for Séamus.  He’s a good fellow.  (And his name is Séamus— there is no name more Irish.)

No, really.  When you travel to Italy, don’t just follow the tour books and stick to Florence & its environs– wonderful though they are.  For just as much Italian culture and scenery (for a significantly lower cost), try Umbria.  Right next door, and only a smidge less enticing than its more famous regional neighbor to the west.

Last fall, on a CLE Abroad Program hosted by my alma mater, I had occasion to visit Spoleto, a beautiful town south of Perugia, and an easy drive up from Rome.  The people there are incredibly welcoming (and who wouldn’t be, when facing a horde of American lawyers?), the scenery stunning, and the economy… well, there’s the problem.  Italy has had a rough go of it since the Great Recession a decade ago.  And, while not as bad off as their Greek neighbors across the Adriatic, unemployment has stayed chronically high, and towns like Spoleto have really borne the brunt of the downturn.

But if you visit, plan on some of the best food you’ve ever tasted, some of the warmest hospitality, and a heck of a pleasant surprise.

They might even give you a tour of the courthouse, complete with the chance to don a judge’s robe.



NASA photo.

A huge segment of the legal community thinks that international law equals immigration law.  My local bar association even conflates the two ideas in its committee structure, which is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.  It staggers the imagination that a profession so concerned with precise language can’t see the distinction.

When somebody asks me about my specialty,* I tell them that I handle “anything that crosses a border.”  Naturally, they respond with “oh, great, I have a neighbor whose cousin’s housekeeper is being deported– I’ll send her your way.”

No.  Just… no.

So now, I always follow “anything that crosses a border” with a clarification: “paper– not people.”

Technically, I don’t practice in International Law– what I handle is Transnational, but I’ve abandoned the fight on that distinction.  The point is, I don’t handle immigration.  But I have a whole bunch of friends– spectacularly talented advocates– who do handle immigration, and I wouldn’t want to touch their specialty with a ten-foot pole.**

Even at that, it cannot be said that there’s such a thing as “immigration law”.  As I found out recently, it’s a bifurcated discipline, so it’s critical to identify the client in order to determine which kind of immigration law the attoney handles:

  • Business immigration lawyers serve business clients.  When they apply for an H1B visa, it’s on behalf of the employer– not the immigrant.
  • Individual & family immigration attorneys serve individual immigrants & their families– and even then, there are sub-specialties.

What I do is outward looking– cases originating here in the U.S. and Canada, dispatching procedural issues abroad.  I cannot prevent your neighbor’s cousin’s housekeeper’s deportation.

* Acknowledging that the words “specialty” and “specialize” get lawyers into trouble with their respective disciplinary authorities, I contend that such trouble is unwarranted.  If a guy says he specializes in traffic law, but doesn’t know how to plead down his wife’s speeding ticket in Kansas City Municipal, then they should get him on misrepresentation and false advertising.  Don’t smack down a family law attorney who says she specializes in divorce and custody disputes when she actually does so.  The simple linguistic fact is that we do specialize.  We have to.  Lawyers who don’t specialize are dead in the marketplace– a jack of all trades is a master of none, and clients need mastery.  Don’t ever come to me with a complex tax question or an estate planning issue or criminal defense matter (et cetera) unless there’s a cross-border element to it.  Even then, I’m a support guy– not primary counsel.

** One sub-specialty that skirts what I do:  refugee & asylum law– an area to be described later, in a different post.  But it’s only a very small portion of the immigration universe.

Thirty years ago today, the Nine Wise Souls heard oral arguments in the seminal case, the kingpin-opinion, the granddaddy precedent, in what I do.  Volkswagenwerk Aktiengesellschaft v. Schlunk, (opinion issued that June, and available at 486 U.S. 694) involved a wrongful death suit against the German automaker and its U.S. subsidiary.  The plaintiff, whose parents were killed in a highway collision, served the German parent company via the subsidiary, which happened to have been headquartered in Chicago at the time.

Now, ordinarily, I argue that you can’t just serve a subsidiary.  The very idea of it tends to disregard the corporate veil.  But Illinois happens to have a statute that allows precisely that– if a foreign* parent has an Illinois subsidiary, then that sub is designated by law as an agent for service on the parent.  On the surface, it might seem that this conflicts with the Mullane doctrine (service must be effected by a means reasonably calculated… to put the defendant on notice, and afford him an opportunity to defend), but it stands to reason that if the sub knows, they’re going to tell the parent.

But the issue in Schlunk was only related to Mullane analysis in part.  Accepting the validity of the statute, Justice O’Connor disposed of the matter pretty quickly…

Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. (…)  (C)ontrary to VWAG’s assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national.

However, if you can’t get the job done here, and you have to serve the foreign national in his/her/its home country (assuming it’s a treaty member), then you have to follow the treaty.  Period.

It’s as good as holy writ today.  In 1988, it wasn’t so certain.**

(If you have an hour, you can listen to the orals here.)


* Foreign is a term of art, and it doesn’t just mean “outside the United States.”  It means “outside this particular jurisdiction.”

** I was a junior in high school at the time.  I was certain about everything.