In An Empirical Examination of Universal Jurisdiction for Piracy, Professor Eugene Kontorovich (whose historical claims disputing the connection between piracy and war crimes I have repeatedly debunked) and coauthor Steven Art, allege that:

“The establishment of individual criminal liability, enforceable by any nation, departs from the classical structure of international law, which only regulated relations between states and depended on the consent of nation states.”

Let’s examine this statement to see how thoroughly inaccurate it is.

I happen to be familiar with Professor Kontorovich’s work, so I am aware of the faulty arguments that lead to statements like this.  But it can be highly misleading to people who are unfamiliar with the dispute. The application of universal jurisdiction is only highly controversial to Professor Kontorovich and a few others advancing a viewpoint on the fringes of American legal academia.

To the international community there simply is no controversy, nor has their been. The classical structure of international law has recognized the variety of jus cogens crimes since Grotius and Vattel. There has been uninterrupted progress in the expansion of hostes humani generis to include the pirate, the slave trader, the torturer, the war criminal and the genocidaire, well within the classical framework envisioned by the early commentators and borne out by generations of international jurisprudence.

I commented on seeing this crisis coming over a year and a half ago, and I take no pleasure in seeing it borne out.  Via H&J, a recent report published in the Duke Law Journal states:

Sanction motions and sanction awards for e-discovery violations have been trending ever-upward for the last ten years and have now reached historic highs. At the same time, the frequency of sanctions against counsel for e-discovery violations, though small in number, is also increasing. Although serious e-discovery misconduct by parties and counsel should continue to be the subject of sanctions, appropriate consideration should be given to the complexity of e-discovery in ruling upon the increasingly frequent e-discovery sanction motion.

The e-discovery process is indeed complex.  But it is possible for a prudent attorney to avoid an ethical lapse with sufficient diligence and a thorough understanding of the technology involved in the process.  See, for instance, the Qualcom case:

One common but easily avoided e-discovery trap involves the failure to properly oversee the production of electronically stored information.  Courts are increasingly willing to sanction attorneys for failing to make “reasonable inquiry” into their clients’ production of electronically stored information during discovery.

[...]

The Qualcomm court determined that some of Qualcomm’s attorneys “assisted, either intentionally or by virtue of acting with reckless disregard for their discovery obligations” in Qualcomm’s discovery violations. While there was no direct evidence that Qualcomm’s attorneys helped to conceal damaging emails, the court found that the attorneys “contributed” to the discovery violation because they chose “to accept the unsubstantiated assurances of an important client that its search was sufficient” and ignored warning signs that Qualcomm’s document search and production were inadequate. The court imposed considerable sanctions against both Qualcomm and its attorneys because the attorneys did not make a “reasonable inquiry” into Qualcomm’s discovery search and production.  In addition to substantial monetary sanctions against Qualcomm, the court referred the sanctioned attorneys to the state bar for investigation and possible sanctions and ordered the attorneys to participate in a comprehensive discovery program to identify the failures in their case management and discovery protocol.

from Navigating E-Discovery: How to Avoid Common Pitfalls

In order to obtain service by publication there must be a “diligent search and inquiry” for the party being served.  It is the obligation of the party seeking service to embark upon this diligent search, and an affidavit attesting that such a search has indeed been performed must be filed with the court before attempt at service by publication can be valid.[1]

But what does a diligent search and inquiry look like?  The statutes aren’t very helpful in this regard, but the the case law might be instructive.  If  we look at the 1926 Florida Supreme Court case of Ortell v. Ortell,[2] we see at least what a diligent search ought not to look like:

The fact that this affidavit stated that the affiant believed the present mail address of the defendant to be Hendersonville, North Carolina, does not cure the defect with reference to the inadequacy of the affidavit as applied to the residence of the defedant [...]. For aught that appears in the affidavit, this “mailing address” may have been purely transient, temporary, and ineffective.  Furthermore, in view of the generality of the mailing address given, it would have been a better compliance with the spirit of the statute either to have given the street address in Hendersonville, which we judicially know was by no means a village[.]


[1] § 49.051 Fla. Stat. (2010)

[2] Marie Phyllis Ortell v. Frank J. Ortell, 91 Fla. 50 (1926)

What happens to a civil complaint where the opposing party cannot be served?  Such is often the case is divorces, what we call a “dissolution of marriage” action here in Florida, where the party seeking the divorce often has not had contact with the opposing party and may even be unaware of their whereabouts.  The answer is found in a form of service of process known as “constructive” service.

In order for a court to obtain jurisdiction over dissolution of marriage cases, proper service of process must be made upon the respondent.  Dissolutions of marriage are actions in rem, and thus the res of the action over which the court asserts jurisdiction is the marriage itself.  Therefore the court does not need personal jurisdiction over the respondent to dissolve a marriage; the court merely requires jurisdiction over the marriage itself, or one of the parties to the marriage (the petitioner).

Although the court needs no personal jurisdiction over the respondent, service of process upon the respondent is still required in order that the court to obtain a valid judgment over the res of the action.  In cases where the respondent cannot be found, and substituted service of process[1] cannot be made on an appropriate party, it is still possible to effect constructive service upon the respondent by means of service by publication.  Service by publication can only be had for proceedings in rem.[2]

An affidavit of diligent search and inquiry is a “condition precedent to service by publication.”[3] Diligent search and inquiry is essential to any attempt at constructive service.[4] The last known address of the defending party must be contained within the affidavit.  But what exactly constitutes a “diligent search and inquiry” with respect to service of process?  The answer is not as clear as one might like it to be, and as I will go on to show, this lack of clarity can be quite problematic when it comes to ensuring due process for respondents.


[1] “Substituted service and constructive service have not always been distinguished by the courts.” Trawick’s Florida Rules and Practice, Section 8:19, at page 165

[2] Id.

[3] Florida’s Statute Title VI, Chapter 49.031

[4] Trawick’s, supra N1, at page 169

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