Judicial Jurisdiction: The Transnational Difference
54 Pages Posted: 23 Sep 2018 Last revised: 2 Mar 2019
Date Written: 2019
This Article engages with some of the key debates that have emerged among international law and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court’s docket. It makes three principal contributions. First, it explains how the recent decisions involving judicial jurisdiction should be understood within, and partly limited to, their international contexts. Disputes involving nonresident foreign defendants raise different considerations than those involving defendants in the United States, and this Article canvasses those differences. If a concern previously was that courts gave too short shrift to the international aspects of a case, the concern now is that lower courts may make the reverse mistake by overstating the applicability of recent decisions to the domestic, interstate context. Second, it details how international law imposes modest constraints on national court adjudicatory authority, and pushes back on recent attempts to re-imagine public international law. It shows how the Fourth Restatement of the Foreign Relations Law of the United States — which states that judicial jurisdiction in civil cases is unregulated under international law — advances a position inconsistent with the overwhelming weight of authority. The Restatement’s attempt to fashion new customary law and reshape the existing legal regime in the judicial jurisdiction arena is problematic, and this Article serves as a counterpoint to that effort. Third, it describes an interplay between unilateral domestic extraterritorial regulation and international lawmaking, and aligns judicial jurisdiction with the closely-related area of legislative jurisdiction. Constraints on broad jurisdictional assertions in transnational disputes may be one of the predicates necessary to spur U.S. multilateral engagement.
Keywords: personal jurisdiction, adjudicatory, judicial jurisdiction, extraterritoriality, prescriptive jurisdiction, Nicastro, Daimler, Goodyear, Fourth Restatement, foreign relations, international law, transnational law, customary international law, transnational litigation, aliens, federalism, sovereignty
JEL Classification: K1, K4, K10, K19, K20, K29, K30, K33
Suggested Citation: Suggested Citation