The Lay of the Land: Examining the Three Opinions in (Volume 63, Book 3 2)

For this eminence he ordered them to drive the oxen whenever they received the word as furiously as they could till they reached the top. But when they got near the oxen they were entirely puzzled by the lights, fancying that they were about to encounter something much more formidable than the reality. When the pikemen came up, both forces skirmished with each other for a short time, and then when the oxen rushed in among them they drew apart and remained on the heights waiting until day should break, not being able to understand what was the matter.

Fabius, partly because he was at a loss to know what was occurring, and as Homer says, deeming it to be a trick, 12 and partly because he adhered to his former resolve not to risk or hazard a general engagement, remained quite in his camp waiting for daylight. Meanwhile Hannibal, whose plan had been entirely successful, brought his army and all his booty safely through the gorge, those who had been guarding the difficult passage having quitted their post. He had spread great terror and perplexity through all the cities and peoples of Italy.

Fabius, though generally reproached for his craven conduct in letting the enemy escape from such a situation, still did not abandon his policy. Marcus, instead of paying any attention to this advice, was, even while Fabius was tendering it, entirely wrapped up in the project of risking a great battle.

Contemporaneously with these events Hasdrubal, the Carthaginian commander in Spain, after fitting out during the winter the thirty ships his brother had left him, and manning ten others, put out at the beginning of summer from New Carthage with his fleet of forty decked ships, appointing Hamilcar his admiral.

At the same time he collected his troops from their winter quarters and took the field. His fleet sailed close to the shore and his army marched along the beach, his object being to halt with both forces near the Ebro. Indeed if any people have given generous support to the Romans it is the people of Marseilles both on many subsequent occasions and especially in the Hannibalic War. When the scouts reported that the enemy's fleet was anchored off the mouth of the river, he weighed anchor and advanced rapidly, wishing to fall upon them suddenly.

The Romans being now close at hand, he gave the signal for battle, having decided on a naval action. The Carthaginians on meeting the enemy contested the victory only for a short time and then began to give way. After losing two ships with all their crews and the oars and marines of four others, they fell back on the shore. On the Romans pursuing them vigorously they ran their ships aground and leaping out of them took refuge with the troops.

The Romans very boldly approached the shore, and taking in tow such ships as were in a condition to float, sailed off in high spirits, having beaten the enemy at the first onslaught, established their supremacy at sea and possessed themselves of five and twenty of the enemy's ships. But the Carthaginians, on the news of their defeat, at once manned and dispatched seventy ships, regarding the command of the sea as necessary for all their projects. Gnaeus Servilius, the commander of this Roman fleet, followed up the Carthaginians for a certain distance, believing he would overtake them, but on being left a long way behind, he gave up the chase.

On his return voyage he possessed himself of the island of Cossyrus, and leaving a garrison in the small town returned to Lilybaeum. After laying up his fleet in harbour there, he very shortly went off to join the land forces. For they were very apprehensive lest the Carthaginians should master that country, and, collecting abundance of supplies and soldiers, make a more serious effort to regain the command of the sea and thus support the invasion of Italy by sending troops and money to Hannibal.

Treating this war, then, also as of great moment they dispatched Publius with his fleet, and on reaching Iberia and joining his brother he rendered great service in their joint operations. When Hannibal was starting on his march for Italy he took as hostages from those cities in Iberia on which he did not rely the sons of their principal men, and all these he placed in Saguntum owing to the strength of the place and the loyalty of the officers he left in charge of it.

Now there was a certain Iberian named Abilyx, second to none in Iberia in rank and wealth and with the reputation of being more devoted and loyal to the Carthaginians than anyone else. Reviewing the situation and thinking that the prospects of the Romans were now the brightest, he reasoned with himself in a manner thoroughly Spanish and barbarian on the question of betraying the hostages. For, being convinced that if he both rendered the Romans a timely service and gave them proof of his good faith, he would become very influential with them, he formed the scheme of playing the traitor to the Carthaginians and handing over the hostages to the Romans.

Abilyx, perceiving that he was of a guileless and mild disposition and placed full confidence in himself, approached him on the subject of the hostages, saying that now the Romans had once crossed the river it was no longer possible for the Carthaginians to control the Iberians by fear, but that present circumstances required the goodwill of all the subject peoples.

So now, when the Romans had approached and were encamped close to Saguntum and the city was in danger, if he brought the hostages out and restored them to their parents and cities, he would in the first place frustrate the ambitious project of the Romans, who were bent on taking just the same step if they got the hostages into their hands, and further he would elicit the gratitude of all the Iberians to the Carthaginians by thus foreseeing the future and taking thought for the safety of the hostages. This act of grace, he said, would be very much enhanced, if Bostar would let him take the matter in hand personally.

For in restoring the children to the cities not only would he gain him the goodwill of their parents but that of the mass of the people, by thus bringing actually before their eyes this evidence of the magnanimous conduct of Carthage toward her allies. He told Bostar also that he could count on many presents to himself from those to whom their children were returned; for each and all, on thus unexpectedly receiving back their dearest, would view with each other in heaping benefits on the author of the measure.

At night he went to the Roman camp, and having found some of the Iberians who were serving in the army, gained access through them to the generals. Pointing out at some length how the Iberians if they recovered their hostages would with one impulse go over to the Romans, he undertook to give up the children to them. After this, taking his most intimate friends with him, he came to Bostar; and on the children being handed over to him from Saguntum, he sallied out from the town by night as if to keep the matter secret, and marching along the enemies' entrenched camp reached the appointed place at the appointed hour and delivered all the hostages to the Roman generals.

Publius conferred great honours on Abilyx, and employed him in the restoration of the hostages to their respective countries, sending certain of his friends with him. Going from city to city, and bringing, by the repatriation of the children, the gentleness and magnanimity of the Romans into manifest contrast with the suspiciousness and harshness of the Carthaginians, at the same time exhibiting the example of his own change of sides, he induced many of the Iberians to become allies of Rome.

For the present both sides, as the season was now advanced, broke up their forces for the winter; chance in this matter of the children having materially contributed to assist the projects the Romans had in view. He soon took the city, upon which he put the inhabitants to the sword, but kept the walls and most of the houses uninjured, intending to use them as corn magazine for the winter. When he had completed this he sent two divisions of his army out to gather corn, ordering each to bring in each day for its own use the quantity imposed by those in charge of the commissariat.

• Creation World: The Kingdom of Miracles?
• James Joyce and Zurich’s Fair City: And Other Historical Reflections on Switzerland.
• .

With the remaining third he guarded the camp and covered the foraging parties here and there. But on hearing that Hannibal had already occupied Geronium, and was foraging in the district, and had established himself in a fortified camp before the city, he turned and descended from the hills by a ridge that slopes down to the town.

Arriving at the height in the territory of Larinum called Calena he encamped there, being eager at all hazards to engage the enemy. There was a certain hillock between the two armies, and observing that it lay close to the enemy's camp and commanded it, he sent two thousand of his pikemen in the night to occupy it.

Marcus, catching sight of them at daybreak, led out his light-armed troops and attacked the hill. Hannibal hereupon found himself in a very difficult position, being neither strong enough to march out and meet the enemy nor able to go to the assistance of those of his men who were scattered over the country.

The Romans who had been dispatched to attack the foraging parties, killed numbers of them, and finally the troops drawn up in line reached such a pitch of contempt for the enemy that they began to pull down the palisade and very nearly stormed the Carthaginian camp. He now regained a little confidence, and sallying from the camp drew up his troops a short distance in front of it and with difficulty averted the impending peril.

Minucius, after killing many of the enemy in the engagement at the camp and still more throughout the country, now retired, but with great hopes for the future, and next day, on the Carthaginians evacuating their camp, occupied it himself. For Hannibal, fearful lest the Romans, finding the camp at Geronium deserted at night, should capture his baggage and stores, decided to return and encamp there again.

In his concurrence, Justice Breyer spent more time identifying the potential challenges that could arise in hypothetical cases involving contemporary commerce, globalization, and the Internet, than he did actually analyzing the judicial resolution of Nicastro. As previously discussed, Justice Breyer resolved Nicastro by focusing almost entirely on the fact that the case involved only a single sale in the forum state.

And according to Justice Breyer, Nicastro did not necessitate the endorsement of any particular jurisdictional analysis because the case could easily be resolved on existing precedent alone due to the fact that the Court has never upheld personal jurisdiction in a case involving only a single sale in the forum. This implied Justice Breyer believed the Court would alter its jurisdictional approach in a future case, and that he was cognizant that any law affirmatively created in Nicastro would operate as precedent that the Court would have to reconcile when attempting to announce this altered standard.

Second, Justice Breyer devoted a significant amount of time to detailing the issues that must be addressed by any future jurisdictional standard adopted in stream of commerce cases. Ultimately, Justice Breyer found that neither competing Asahi test possessed the capacity to resolve the full range of jurisdictional complications presented by modern commerce, globalization, and the Internet.

In contrast, Justice Breyer explained that the pure stream of commerce test endorsed by Justice Ginsburg was potentially too broad and could produce grossly unjust results. Additionally, this analysis identified a list of issues any future standard must be equipped to handle, including the effects of globalization, the Internet, and the dramatic differences in sizes and motivations of manufacturers selling products in the United States through independent distributors. Finally, and most saliently, Justice Breyer concluded his concurrence by expressing a desire for broader external input.

Domesday Book

He indicated that, the next time the Court grants certiorari in a stream of commerce case, he would like the Solicitor General to be involved and provide oral testimony about the impact issues like globalization and the Internet actually have on personal jurisdiction analyses in stream of commerce cases.

By way of synthesis, Justice Breyer 1 wrote the narrowest opinion possible in Nicastro to avoid creating a uniform standard in stream of commerce cases, 2 stated that a new standard is needed, 3 found the competing tests from Asahi inadequate, and 4 asserted that he, and arguably the Court more generally, knows too little about how these personal jurisdiction issues manifest themselves, especially in the current global economy, to endorse or announce an adequate standard.

New State Ice Co. This combination—identifying the need for a new standard; providing the list of issues this new standard must address; and essentially requesting more information and assistance in developing this standard from entities, like lower courts, that have extensive experience navigating the jurisdictional complications created by the modern economy in stream of commerce cases—implicitly invites lower courts to use the post- Nicastro interim to develop alternative jurisdictional standards by giving them the requisite judicial space to experiment without the risk of defying Supreme Court precedent.

Although all parties agree that personal jurisdiction must comport with traditional notions of fair play and substantial justice, the exercise of jurisdiction over nonresident defendants in stream of commerce cases often depends solely on the competing Asahi tests adopted by particular U. PENNumbra , —86 , http: However, as intimated earlier in Part III, not all lower courts have interpreted Nicastro as an implicit invitation to generate alternative jurisdictional approaches.

Thus, the next section will identify and evaluate the other two patterns of lower court responses to Nicastro , which further destabilize the stream of commerce doctrine.

Although many scholars have written articles about the theoretical implications of Nicastro and the ways in which the Court should have resolved the case, See, e. McIntyre Did Not , 45 Tex. A Critical Guide to J.

1. Hair Whipped: An Introduction to Pastel Hair?
2. Crop Rotation and Cover Cropping: Soil Resiliency and Health on the Organic Farm (Organic Principles and Practices Handbook Series);
3. Il campo delle cento pertiche (Italian Edition).
4. Lo que esta mal en el mundo (Ensayo) (Spanish Edition).
5. Navigation menu;
6. .

See Stravitz, supra note 54, at — In contrast, this Comment primarily limits itself to products liability cases, which implicate the traditional stream of commerce analysis. See Wajert, supra note Thus, this Comment has identified three general lower court response patterns: Thus, the remainder of this section will be divided into two subsections, with each subsection discussing one of the first two response patterns identified by this Comment. Nicastro has served as the primary foundation for the holding of eleven Nicastro has served as the primary foundation for the holding of only eleven lower court cases as of August , but this number will certainly continue to grow.

Contra Keranos, LLC v. Superior Court, Cal. For example, in May v. Similarly, the district court in Keranos, LLC v. Analog Devices U. Interestingly, the district court in Ainsworth v. However, in recognizing the discord its decision created, the district court certified Ainsworth for interlocutory appeal, making the Fifth Circuit the first federal appellate court to interpret Nicastro.

This interpretation fits squarely within the second general lower court response pattern identified by this Comment, which will be discussed in greater detail in the next section. Additionally, this response pattern further destabilizes the stream of commerce doctrine by continuing the creation of unpredictable and unjust jurisdictional results. Six lower courts Windsor v. After factually distinguishing their cases from Nicastro by showing they involved more than a single sale in the forum, these six lower courts proceeded to apply the jurisdictional test they adopted after Asahi.

Ainsworth , U. The other four applied the stream of commerce plus test. Windsor , F. Instead, personal jurisdiction often rests solely on the particular Asahi test applied by the state or circuit in which the court is located, which increases unjust results and incentivizes undesirable forum shopping. Despite the nearly identical fact patterns, the cases resulted in opposite holdings due to the location of the courts and the different jurisdictional tests their circuits follow.

The lower court response patterns analyzed in subsections 1 and 2 only work to further destabilize the stream of commerce doctrine post Nicastro. Continuing to apply the old Asahi tests, under either response pattern, does not provide the Court with any fresh jurisdictional alternatives to consider the next time it grants certiorari in a case implicating the stream of commerce doctrine. Justice Breyer made clear that the Court needs additional information and reassurance that the standard it eventually adopts is a workable one.

And by not contributing to a more varied doctrinal landscape, these courts fail to provide this additional information and reassurance, dramatically increasing the likelihood that the Court will slip into the same analytical deadlock that has existed since Asahi. Only one lower court, the U. First, this section briefly reviews the facts of Smith. The cause of action in Smith arose after a husband and father of two was struck and killed by a single-engine airplane while he was jogging on the beach in Hilton Head, South Carolina, in Smith, was flying his single-engine Teledyne aircraft along the Atlantic coast, about ten miles offshore, when the propeller suddenly fell into the ocean.

Smith was en route to make an emergency landing at the Hilton Head Airport, he crashed violently, killing the thirty-eight-year-old vacationer. The widow sued the pilot, Id. Yes, the pilot, Edward Smith, remarkably survived the crash. Teledyne the engine manufacturer , the airframe manufacturer, a company that serviced the plane prior to the crash, and the propeller manufacturer.

The pilot subsequently sued Teledyne for indemnification, and the U.

1. Introduction

District Court for South Carolina consolidated the cases. Teledyne did not make a constitutional challenge to personal jurisdiction. The court did not specify whether the particular engine at issue entered the forum as the result of any of these contacts, but nevertheless found the connection constitutionally sufficient to sustain jurisdiction. Put another way, the Smith court essentially developed a minimum contacts analysis that still requires a nonresident defendant to engage in additional conduct beyond merely placing a product in the stream of commerce, but evaluates that conduct in light of whether the defendant should have anticipated suit in the forum.

However, if this liberalized minimum contacts analysis were applied to a more difficult case like Nicastro , the Court could have found that McIntyre UK established sufficient contacts with New Jersey for two reasons: In this analysis, the court applied the traditional Burger King fairness factors, See supra text accompanying notes 55— Second, this marked focus on size also suggests the court could apply this reasonableness analysis in future cases to determine that exercising personal jurisdiction over substantially local, nonresident defendants without a national presence does not comport with traditional notions of fair play and substantial justice.

Again, the facts of Smith make it difficult to envision how the court would apply this reasonableness test to a case involving a small manufacturer. In fact, advocates of this absolute jurisdiction rule assert that defendants, regardless of size, should have insurance to cover the costs of litigating in distant forums where their products are sold and cause injury.

However, the Smith court insisted the three Nicastro opinions and past Supreme Court holdings must be thoughtfully synthesized and evaluated to uncover the appropriate jurisdictional standard to apply in stream of commerce cases post Nicastro. The court initially stated that this finding adhered to Fourth Circuit precedent, See Smith v. A richer and more varied doctrinal landscape would provide the Court with a broader range of workable standards and information to survey the next time it grants certiorari in a stream of commerce case.

Some commentators may challenge whether the Court would actually survey this broader range of workable jurisdictional standards when attempting to clarify the law the next time it grants certiorari. However, the analysis in Burnham v. Either through false etymology or deliberate word play , the name also came to be associated with the Latin phrase Domus Dei "House of God". Such a reference is found as early as the late 13th century, in the writings of Adam of Damerham ; and in the 16th and 17th centuries, antiquaries such as John Stow and Sir Richard Baker believed this was the name's origin, alluding to the church in Winchester in which the book had been kept.

The usual modern scholarly convention is to refer to the work as "Domesday Book" or simply as "Domesday" , without a definite article. However, the form "the Domesday Book" is also found in both academic and non-academic contexts. The Anglo-Saxon Chronicle states that planning for the survey was conducted in , and the book's colophon states the survey was completed in It is not known when exactly Domesday Book was compiled, but the entire copy of Great Domesday appears to have been copied out by one person on parchment prepared sheepskin , although six scribes seem to have been used for Little Domesday.

Writing in , David Roffe argued that the inquest survey and the construction of the book were two distinct exercises. He believes the latter was completed, if not started, by William II following his assumption of the English throne; William II quashed a rebellion that followed and was based on, though not consequent on, the findings of the inquest. Most shires were visited by a group of royal officers legati , who held a public inquiry, probably in the great assembly known as the shire court.

These were attended by representatives of every township as well as of the local lords. The unit of inquiry was the Hundred a subdivision of the county, which then was an administrative entity. The return for each Hundred was sworn to by 12 local jurors, half of them English and half of them Norman. The Inquisitio Eliensis is a record of the lands of Ely Abbey. Parts of Devon, Dorset, and Somerset are also missing. Otherwise, this contains the full details supplied by the original returns. Through comparison of what details are recorded in which counties, six Great Domesday "circuits" can be determined plus a seventh circuit for the Little Domesday shires.

Then sent he his men over all England into each shire; commissioning them to find out 'How many hundreds of hides were in the shire, what land the king himself had, and what stock upon the land; or, what dues he ought to have by the year from the shire.

Appian • The Civil Wars — Book III

And all the recorded particulars were afterwards brought to him. The primary purpose of the survey was to ascertain and record the fiscal rights of the king. After a great political convulsion such as the Norman conquest, and the following wholesale confiscation of landed estates, William needed to reassert that the rights of the Crown, which he claimed to have inherited, had not suffered in the process. His Norman followers tended to evade the liabilities of their English predecessors.

The successful trial of Odo de Bayeux at Penenden Heath near Maidstone in Kent less than a decade after the conquest was one example of the Crown's growing discontent at the Norman land-grab of the years following the invasion. Historians believe the survey was to aid William in establishing certainty and a definitive reference point as to property holdings across the nation, in case such evidence was needed in disputes over Crown ownership.

The Domesday survey, therefore, recorded the names of the new holders of lands and the assessments on which their tax was to be paid. But it did more than this; by the king's instructions, it endeavoured to make a national valuation list, estimating the annual value of all the land in the country, 1 at the time of Edward the Confessor 's death, 2 when the new owners received it, 3 at the time of the survey, and further, it reckoned, by command, the potential value as well. It is evident that William desired to know the financial resources of his kingdom, and it is probable that he wished to compare them with the existing assessment, which was one of considerable antiquity, though there are traces that it had been occasionally modified.

The great bulk of Domesday Book is devoted to the somewhat arid details of the assessment and valuation of rural estates, which were as yet the only important source of national wealth. After stating the assessment of the manor , the record sets forth the amount of arable land , and the number of plough teams each reckoned at eight oxen available for working it, with the additional number if any that might be employed; then the river-meadows, woodland, pasture, fisheries i.

The organisation of the returns on a feudal basis, enabled the Conqueror and his officers to see the extent of a baron's possessions; and it also showed to what extent he had under-tenants and the identities of the under-tenants. This was of great importance to William, not only for military reasons but also because of his resolve to command the personal loyalty of the under-tenants though the "men" of their lords by making them swear allegiance to himself. As Domesday Book normally records only the Christian name of an under-tenant, it is not possible to search for the surnames of families claiming a Norman origin.

Scholars, however, have worked to identify the under-tenants, most of whom have foreign Christian names. The survey provided the King with information on potential sources of funds when he needed to raise money. It includes sources of income but not expenses, such as castles, unless they needed to be included to explain discrepancies between pre-and post-Conquest holdings of individuals. Typically, this happened in a town, where separately-recorded properties had been demolished to make way for a castle. Domesday Book was preserved from the late 11th to the beginning of the 13th centuries in the royal Treasury at Winchester the Norman kings' capital.

It was often referred to as the "Book" or "Roll" of Winchester. In the Middle Ages, the Book's evidence was frequently invoked in the law-courts. As recently as the s, it was still referred to in court cases regarding ancient land and property rights. The two volumes Great Domesday and Little Domesday remained in Westminster until the 19th century, being held at different times in various offices of the Exchequer the Chapel of the Pyx of Westminster Abbey ; the Treasury of Receipts; and the Tally Court.

From the s onwards they were held, with other Exchequer records, in the Chapter House of Westminster Abbey. The ancient Domesday chest, in which they were kept in the 17th and 18th centuries, is also preserved at Kew. In modern times, the books have been removed from London on only a few exceptional occasions. The volumes have been rebound on several occasions.

Little Domesday was rebound in , its older oak boards being re-used.