Rethinking Legal Globalization: The Case of Transnational Personal Jurisdiction

Abstract:     
Under what circumstances may a U.S. court exercise personal jurisdiction over foreign, non-U.S. parties? Courts and commentators have yet to offer a coherent response to this question. This is surprising given that scholars, such as Harold Hongju Koh, former dean of the Yale Law School and current legal advisor to the United States Department of State, have been calling for the globalization of U.S. law since the late 1980s as part of a transnational litigation narrative.

The Article shows through doctrinal and empirical analysis that globalization’s academic clarion call has largely been ignored in modern judicial decision making. The Article also shows how that call can be reinvigorated by focusing on choice of law questions at the heart of transnational cases. The Article proposes that a U.S. court may exercise personal jurisdiction over an alien defendant not served with process within a state’s borders where (1) the defendant has received constitutionally adequate notice and (2) the state has a constitutionally sufficient interest in applying its law or adjudicating a controversy involving its domiciliaries. Personal jurisdiction in transnational cases is, therefore, about choice of law. This Article revises the transnational personal jurisdiction doctrine through a concrete set of rules for courts to apply given the parties and law at issue before the court.

Number of Pages in PDF File: 8

Keywords: jurisdiction, private international law, civil procedure, federalism, choice of law, conflict of laws

JEL Classification: K10, K33, K41

Accepted Paper Series