I'm a procedure guy myself. So when I saw the Perfesser's comments on the Louis Vuitton suit against Morgan Stanley in France, I was less interested in the substance—which is disturbing enough—than in the basis for jurisdiction. Now, I do not know whether the Morgan Stanley report in question was published in France; if so, the following analysis is irrelevant.

But, if the report was not published in France, we have the same problem as with the Australian assertion of jurisdiction over the Wall Street Journal that I discussed six months ago or so: that the location of the alleged disparager is both outside that nation and reasonably so. I am not real happy with the whole concept. It's not as if LVMH is incapable of suing in a US court, or incapable of suing in a US court asserting that choice of law must defer to France (a losing argument, but good-faith enough to get it in front of the court without violating Fed. R. Civ. P. 11). Morgan Stanley operates principally from New York. Assuming that the allegedly negative recommendation issued from New York… didn't I just discuss something like this earlier today (see the preceding post)?

In any event, this points to a jurisdictional defect in common practice: the presumption that jurisdiction over a tortious act lies wherever the effects of that tortious act may be felt. (Whether "business disparagement" is properly characterized as a "tortious act" is a far more difficult question for another time, and perhaps for a law review article.) The point is that there is more than one factor in determining propriety of jurisdiction, and treating this one factor as dispositive is not consistent with the way jurisdiction is treated for any other area of the law. In contracts, for example, one considers the citizenship (and, for businesses, the corporate headquarters location) of the parties; the place of making of the contract; the place of performance of the contract; whether either side's performance was complete, partial, or pending; whether the contract concerned a transfer of an interest in real property; the location of witnesses and documents; and the place of the asserted breach in determining where a suit may be brought. The answer is usually that there is more than one jurisdiction in which it may be brought, but that there is a reasonably strong preference for bringing it where the defendant may ordinarily be found.

If nothing else, this is further proof that the law is a web. It's not entirely seamless (in fact, it's pretty seamy, and I did indeed set this whole sentence up just to make that pun), but things are much more interconnected than one ordinarily learns in law school.