Legislating Transnational Jurisdiction

Abstract

Many scholars have observed, discussed, and debated Congressional interpretation of the Constitution. But few have considered Congress’s power to interpret the Constitution in an increasingly important context: constitutional personal jurisdiction in transnational cases.

The Supreme Court has, in the past few years, turned the United States into one of the most jurisdictionally stingy countries in the world. The Court has done this in the name of interpreting and applying the supposed commandments of the Due Process Clause of the Fourteenth Amendment to the Constitution. The Court has so narrowed constitutional personal jurisdiction that numerous federal statutes are now being rendered wholly or partly inoperative. For example, Congress enacted the Anti-Terrorism Act in 1987 to enable U.S. nationals to overcome jurisdictional hurdles in order to bring civil claims against foreign terrorist organizations in U.S. courts. Court-crafted jurisdictional rules now turn away all but a small subset of these cases from U.S. courts. In the Foreign Sovereign Immunities Act, Congress expressly stated that U.S. courts would have personal jurisdiction over foreign sovereign entities for a variety of purposes, including recognizing arbitral awards. Many of these claims now too may be turned away.

This article recognizes the recent and growing tension between federal statutory law and federal constitutional law. This tension can be resolved by recognition that Congressional interpretation of constitutional jurisdiction should be entitled to respect by the courts. Congressional interpretation of constitutional jurisdiction in transnational cases offends neither constitutional rights nor constitutional structure. Moreover, all of the Court’s cases on personal jurisdiction to date have interpreted jurisdiction deriving from the Fourteenth Amendment — applicable in cases arising in state court or applying state law — whereas cases involving claims under federal law implicate the Fifth Amendment, which can and should be interpreted more broadly. Recognition of Congress’s role in interpreting Fifth Amendment personal jurisdiction will drive a truly transnational approach to jurisdiction, enable important international treaties, and deemphasize the courts’ trans-substantive approach to jurisdiction.

Keywords: International Litigation, International Arbitration, Commercial Arbitration, Arbitration, Jurisdiction, Judgments, Recognition, Enforcement, Civil Procedure, International Law, New York Convention, Terrorism, Patents

JEL Classification: K2, K3