This space hasn’t offered much about the biggest news in transnational litigation in years– a test of the validity of service by mail under Article 10(a) of the Hague Service Convention. Frankly, the outcome doesn’t much matter to me, because in most circumstances– as I’ve said repeatedly– mail service as a primary means is a bad idea. But it’s a bad idea from a factual perspective, rather than a legal one.
As to its basis in law, I agree wholeheartedly with the plaintiff in Water Splash, Inc. v. Menon, which was heard live and in person before the Nine Eight Wise Souls this week. For crying out loud, some drafting errors are not fatal to the broader intent of the drafters– the Chief Justice said as much in King v. Burwell— if this even was a drafting error. It’s valid, and everybody else in the world thinks so.
Factually, mail is awfully questionable, so I can’t be phased that its use under the HSC will almost certainly be validated. A huge chunk of my practice comes from the 2d and 9th Circuits, where mail service has been valid all along, so losing an automatic bar in the 5th and 8th is relatively inconsequential. What bugs me most is that I wanted to argue it, and never got a shot.
For thorough coverage of the case, refer to the ongoing Water Splash Resource Page at Ted Folkman’s outstanding Letters Blogatory. And for a rundown on Wednesday’s oral arguments, see SCOTUSblog here.
I agree with Ted’s prediction that the Court will resolve the circuit split handily– he thinks perhaps unanimously, but I can’t give such good odds to logic in today’s world. I hope he’s right.
Now I think I might go for a swim.