Once in a blue moon, law review articles, even those from law schools instead of lawyers' groups, are actually helpful to actual lawyers practicing law. That may just be a tragic accident. But seriously, sometimes, when an article actually is on point, it hits it out of the park.
Here's a law review article that not only does that, but shows the value of academics' unique viewpoints in pointing out the bird's-eye view of problems that we working stiffs work with every day, but don't recognize. I think of myself as an outside-the-box, big-picture, go-upstream-to-stop-the-bodies-falling-in-the-river kind of guy, not blinkered by conventional wisdom, but I was caught totally unawares by this one, but had to agree with it as soon as I read the title.
Everyone knows that multilateral treaties are wonderful, progressive, and modernizing, right? And if you know that there is a treaty on serving court documents on litigants internationally, then you believe, as I always did, that it greatly improves international unity and comity by offering a single, simple procedure in which every country provides a way to serve anyone with a lawsuit from anywhere. This is the "Hague Service Convention" (long title: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361.)
Yes, after the first couple times I used it I have always tried hard not to, but I was always proud of it, of my knowledge of it, of my ability to use it as efficiently as possible, with less pompous fuss than those lawyers who love to make everything more ornate and difficult and thus make themselves more indispensable to clients. But the emperor has no clothes, University of North Texas — Dallas law professor Eric Porterfield points out in "TOO MUCH PROCESS, NOT ENOUGH SERVICE: INTERNATIONAL SERVICE OF PROCESS UNDER THE HAGUE SERVICE CONVENTION", in the Temple Law Review, Vol. 86 p. 331 (2014). Yes, the treaty offers an intergovernmental service for delivering documents in other countries, but it takes two months at best, many more at worst, and in many cases the person never gets served. And although it has language saying that it doesn't interfere with other kinds of process-service, such as mail or private in-person delivery, those provisions have given many countries an opportunity to say they will not let their residents be notified of legal proceedings by those methods, only by the slow, official Hague method. Even though they allow mail and other less formal notification methods for their own non-international cases!
I had a case with India where we tried and failed to get Hague Service. The divorce and property-division was granted anyway, as the defendant filed an Answer in the case, which gave the Virginia court all the jurisdiction it needed. Besides, like many courts nowadays, this one had"rocket-docket" rules that require cases to have initial status hearings quickly, other deadlines, and proceed to final trials in a few months. About a year later, I got a shabby but colorful envelope with the papers I had prepared, along with a bundle of detailed handwritten letters from the process-server describing very frequent but unsuccessful visits to the defendant's last known address, and his conversations with small boys and old ladies there who always had a different story about where the defendant had moved to, or gone for an extended and indefinite vacation.
I had another case with Japan where I argued very hard to convince the judge to delay a hearing for months so that we could achieve proper Hague-Convention service, and finally a little more than two months before the hearing, the father was about to get served, but then the Justice Ministry sent everything back to me with a form which explained that the papers could not be served because the hearing was coming up too quickly for the defendant to prepare for it. Fortunately, this too was sent by such slow mail process that it, too, arrived after the hearing.
In yet another, sadly common, case, I had to have a Hungarian translator in Cleveland translate routine uncontested divorce documents into Hungarian, to be served on an American.
So in this day and age, when we and many other countries in the treaty have communication and even process-service by e-mail, and people are accessible almost anywhere and you can deal with people by e-mail, phone, etc. without even knowing what country they're in, the international cases are stuck in 1965. This treaty is probably worse than no treaty at all. It has become an anti-notification, forum-shopping, justice-obstructing, justice-delaying, justice-denying treaty, in a process Shakespeare had in mind when he wrote:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it.
Their perch and not their terror.
-- "Measure for Measure". Using "fear" to mean "affright" or "terrorize."
But how, then, to reshape it? Read more at: