- Recall World-Wide Volkswagen. Didn’t the majority seem to approve of a stream of commerce (SOC) theory in that decision? If so, was WWVW’s discussion of SOC a holding (necessary to the court’s decision) or dicta (an unnecessary aside)?
- How does Justice O’Connor treat reasonableness? Does she think PJ over Asahi is reasonable? Why? Be prepared to discuss each of the BK reasonableness factors.
- Is Justice O’Connor’s reasonableness discussion unanimous? If not, who is missing? Any ideas as to why she or he did not join the opinion?
- What is Justice O’Connor’s rule for purposeful availment (or “purposeful direction” as she puts it) for SOC?
- Which part of Justice O’Connor’s opinion actually decides the case? Reasonableness? Purposeful availment/direction? Both? Why?
- How does Justice Brennan’s rule and analysis differ from Justice O’Connor’s?
- How does Justice Steven’s rule and analysis differ from Justice O’Connor’s and Justice Brennan’s?
- How would the state of the law have changed if Justice Stevens had joined either Justice O’Connor’s or Justice Brennan’s opinions in full?
- If Mr. Zurcher remained in the lawsuit and added a claim against Asahi, would the Court have reached a different result on the PJ question? Why?
- If Asahi was from Canada rather than Japan, would the Court have reached a different result on the PJ question? Why?
Asahi is a case for which you must make a “score card” listing the line-ups and vote counts for each part of the opinion. Use the table below to determine: 1) how many votes each opinion received; 2) whether it is a majority, concurrence, dissent, or plurality; and 3) which Justice(s) joined each part of the opinion. Read and count carefully. Bring it to class and be prepared to share your results. Below is also a brief explanation of majority, concurring, and dissenting opinions.
- Majority: When all nine Justices participate, a majority requires five or more votes. Does Justice O’Connor have a majority for all parts of her opinion?
- Concurrence: Generally this is when an opinion agrees with the judgment(the result, such as affirm, reverse, vacate, etc.), but disagrees on the rule or rationale. Note that some concurrences are partially dissents in disguise.
- Dissent: Generally this is when the opinion disagrees with the judgment. Note that some dissents may nonetheless agree with parts of the majority opinion.
- Plurality: This is when a majority of Justices agree on the judgment, but there is no majority on the reasoning! That may mean that the law is left unsettled (leaving you more things to analyze in your exams as well).
|Op. & author
|No. of votes||Nature of op.||Who joined||What the opinion said|
|O’Connor Part I
|O’Connor Part II.A
|O’Connor Part II.B
|O’Connor Part III
Revised substantially Aug. 25, 2016