I’m enjoying having a back-and-forth with friend of Letters Blogatory Bill Dodge on “Schrödinger Service.” The name comes from the famous thought experiment in quantum physics, where the setup allows a tiny, random quantum event to lead to consequence that we can observe in the macroscopic world. If a radioactive atom decays, then a vial of poison is released and the cat in the box dies. If not, then the cat lives. Until the box is opened and we observe the cat, one interpretation of quantum mechanics tells us that the cat exists in both states, alive and dead, at once! The idea of “Schrödinger Service” is a method of service that occurs in the United States so as to avoid bringing the Service Convention, with all its limitations, into play, but that occurs outside of the United States for the purpose of allowing the plaintiff to seek leave to serve by alternate methods under FRCP 4(f)(3). It is two things at once, existing in an ambiguous state that anyone thinking in terms of classical logic will find unsatisfactory.

Bill says it can’t be done. I am not here to say that he is wrong. His view, which he gives in a recent post at the Transnational Litigation Blog, has a lot of logic and common sense on its side—just like the classical physics that we all learned in high school and that leaves the “spooky action at a distance” of quantum mechanics out of the picture. So why am I trying the push the law in the direction of something that seems as illogical as “Schrödinger service?” I mean, when writing about transnational litigation it’s almost always a safe bet to say, “Bill Dodge is right.”

Well. I am a big believer in respecting the limitations of the Service Convention on the methods of service permissible in Convention states and in respecting foreign states’ views on infringements of their judicial sovereignty. US courts must enforce the Convention’s limits because the Convention is a treaty, and US courts should bear comity in mind because it’s in the United States’ interest. But leaving those issues aside, I think the overarching logic of our law is to get closer and closer to the ideal of treating service as only about notice, not about jurisdiction. The law of personal jurisdiction is designed to protect the right of a litigant who ought not to be sued in an American jurisdiction, because his connection to the jurisdiction is too tenuous, from being sued. If jurisdiction is proper, what policy is served by requirements about the method of service of process that does not turn on whether the method chosen is reasonably calculated to give the defendant notice and an opportunity to be heard? I think the answer is that there is no such policy.

There is a policy behind not doing things in foreign states that the foreign states don’t want us to do there. That policy is called comity. But by hypothesis, in cases of Schrödinger service, there is no transmission of documents for service to the foreign country, and thus no issue about the Convention. Nor do foreign policies about judicial sovereignty and the exclusive right to do judicial acts in their territories come into play. A foreign state might nevertheless be unhappy to learn that American law permits service of process on its nationals by service on their US lawyers in the United States, but that unhappiness doesn’t have a real basis in the Convention or concerns about judicial sovereignty, which are focused on the place of service and not on the nationality of the defendant.

So yes, Bill’s argument rests on a good reading of the rules, and maybe the most natural reading of the rules. But we should be looking for ways to push the rules in the direction of separating out the policies that underlie service from the policies that underlie limitations on personal jurisdiction. That is why I am looking for ways to promote the idea of Schrödinger Service. It may be less logical than Bill’s eminently reasonable view. But as they say, “The life of the law has not been logic; it has been experience.” There are a lot of decisions out there approving service on a foreign party’s US lawyers. A defense of Schrödinger Service has the virtue, which can’t be overlooked in our common law system, of providing a theory for a lot of decisions that otherwise one would have to say were wrongly decided.