Personal Jurisdiction Research Articles

Personal Jurisdiction as a Mandatory Rule

For the past decade, the Supreme Court has consistently admonished the bench and bar that delineating the scope of federal must not be confused with emphatic, but non-jurisdictional, bars to judicial review. Whether a particular rule falls on one side of the jurisdictional divide or the other has presented a difficult question. In a recent article, Scott Dodson proposes that there are a class of - rules - that while not jurisdictional in the strict sense now employed by the Supreme Court, nonetheless possess some jurisdictional characteristics. In this Essay, I suggest that personal is one such mandatory rule. That is, I suggest that under the logic now employed by the Supreme Court, personal is not jurisdiction at all. Limiting the jurisdictional label to subject-matter will facilitate terminological and conceptual clarity in what has become a confused field.

Enforcement of International Arbitration Awards in New York: If You Take Them There, You Can Collect from Anywhere

As many parties find out the hard way, the value of an arbitration award often depends on whether a losing party is solvent and, if so, how easily its assets can be located, attached and used to satisfy an award. This article discusses recent developments in New York that may assist parties in obtaining satisfaction of arbitral awards rendered in their favour, wherever the arbitration may be located, and however disconnected the parties and the dispute are from New York. The analysis begins with the New York's pre-award attachment statute, section 7502(c) of the New York Civil Practice Law and Rules ( CPLR ). The article discusses a recent decision, Sojitz Corp. v. Prithvi Info. Solutions Ltd. ,1 granting a pre-award attachment of assets located in New York, despite the fact that the anticipated arbitration was between two foreign parties, neither of whom were subject to personal jurisdiction in New York, and concerned a purely foreign dispute. Next, the article turns to the post-award phase, and discusses the decision in Koehler v. Bank of Bermuda Ltd. ,2 which addressed the power of New York courts to order entities subject to their jurisdiction – including non-parties to an underlying arbitration – to deliver assets into New York for purposes of attachment and execution by a judgment creditor. The article concludes by noting the potential application of the latter principle to the former situation: that is, whether assets located outside New York, but in the custody of an entity subject to the jurisdiction of New York courts, can be subject to pre-award attachment. Given the status of New York as a global financial centre, and the attendant likelihood that parties to international arbitrations will have assets either within the jurisdiction of New York or in the custody of institutions subject to New …

Moberg and the Inconsistent Treatment of the Internet in Personal and Subject Matter Jurisdiction Analysis

This Note addresses whether the District of Delaware correctly decided the jurisdictional issues in Moberg v. 33T LLC. The Moberg court was faced with issues of both personal and subject matter jurisdiction based on Internet activity. The subject matter issue, whether posting copyrighted photographs to a European website could constitute “simultaneous publication” within the United States for copyright registration purposes, is an issue of first impression in the United States. The District of Delaware Court used a destination-based framework for analyzing the personal jurisdiction issue, but an origin-based framework for analyzing the subject matter jurisdiction issue. Despite these inconsistencies, this note argues that the use of differing treatment of the Internet was appropriate. Part I of this note discusses an introduction to jurisdictional and geography-based analysis. Part II provides an introduction to the Internet. Part III examines how jurisdictional frameworks have incorporated the Internet into analysis. Part IV introduces basis copyright law. Part V analyzes the Moberg court’s application of jurisdictional law to the Internet activity in that case. Part VI concludes that the Moberg court correctly applied destination- and origin-based analyses to the Internet activity.

Beliefs about parental authority, parenting styles, and parent-adolescent conflict among Iranian mothers of middle adolescents

Associations among parenting styles, parental authority beliefs, and adolescent—parent conflict were examined in 426 mothers of middle adolescents from 3 cities in Iran. Consistent with past research, mothers judged parental authority as less legitimate for personal than for conventional or prudential issues. Poorer, less educated mothers were more authoritarian in their parenting, and more authoritarian and less authoritative parenting and poorer maternal mental health were uniquely associated with more frequent and more intense conflicts. Conflicts were more frequent among mothers who evaluated parental authority as less legitimate for prudential issues and more legitimate for personal issues, particularly among mothers of boys. Despite broad variation in mothers’ education and social class, conflicts reflected concerns about drawing boundaries between mothers’ legitimate authority and adolescents’ personal jurisdiction.

Donors' Justice: Recasting International Criminal Accountability

AbstractInternational legal scholarship to date has largely neglected the donor-driven dynamics of international criminal justice. This article advances what I term ‘donors’ justice’ as an analytic frame for interpreting the work of international criminal tribunals. Donors’ justice is defined as third-party financial support for tribunal activity. It imports market rationalities into the field of criminal accountability, which assume overlapping discursive, political, and economic forms. The Special Court for Sierra Leone provides a case study of the implications of donor-driven logics for international criminal justice, particularly the material problems of insecure funding and the ethical problems of limited personal jurisdiction.

Regressing toward Federal Common Law: The Catalytic Effect of CERCLA’s Private Cause of Action

CERCLA’s Section 113, its civil proceedings provision, does not contemplate the private cause of action context in such areas as personal jurisdiction or contribution protection. The Section directly addresses only Government claims, and SARA’s legislative history rarely even discusses the private cause of action. Courts have had to manufacture a federal common law to fill in the gaps which Congress left. The congressional silence has caused courts to strain to reconcile private claims with CERCLA’s language. Atlantic Research means that process must continue.This has led to a regression to common law principles for the CERCLA private cause of action. For personal jurisdiction, failure to provide expressly for nationwide service of process relegates the matter to the usual “minimum contacts” approach constrained by principles of state sovereignty. For joinder and related issues, SARA’s confused language encourages resort to general principles of common law embodied in the uniform acts. With little prospect for reinstituting taxes for the Superfund, the key is to find a set of realistic incentives and disincentives to encourage effective remedial action with reduced government intervention. CERCLA’s private cause of action will continue to be a central catalyst in that process.This paper is a draft of a paper to be presented at the Southwestern Law School Symposium, “CERCLA and the Future of Liability-Based Environmental Regulation,” at the Southwestern Law School on November 11, 2011.

U.S. Supreme Court Amicus Brief of Law Professors in Support of Respondents, J. McIntyre Machinery Ltd. v. Nicastro, No. 09-1343

This brief was filed by law professors and legal scholars from across the country with expertise in the areas of civil procedure, conflict of laws, and transnational litigation. The amici curiae have an interest in the proper interpretation of the constitutional restrictions on personal jurisdiction and their effect on civil adjudication. Amici believe that the Supreme Court’s well-established principles confirm that New Jersey courts may permissibly exercise jurisdiction in this case. The Court’s fractured decision in Asahi Metal Industry Co. Ltd. v. Superior Court, 480 U.S. 102 (1987), has spurred some uncertainty about whether U.S. courts may constitutionally exercise jurisdiction over foreign manufacturers whose products are sold to U.S. customers and cause injury in the United States. Although Asahi divided 4-4 on whether the foreign manufacturer in that case had established minimum contacts with California, both sides of the split endorsed this long-standing consensus: a manufacturer establishes minimum contacts with the forum when it purposefully seeks to serve – directly or indirectly – the market in the forum state and its product thereby causes injury in that state. This Court should reaffirm this principle and conclude that New Jersey courts may properly assert jurisdiction over Petitioner, a British manufacturer of large metal shearing machines. There is no question that Petitioner purposefully sought to serve and profit from the U.S. market for its products by, among other things: directly engaging a U.S.-based company to be the exclusive distributor for Petitioner’s machines in the territory of the United States; touting in its literature that its machines comply with American safety standards; and having its own high-level officials attend dozens of U.S. trade shows in an effort to promote the sales of its machines in the United States. By taking these purposeful steps to reach the entire U.S. market, Petitioner necessarily sought to serve, at least indirectly, the particular states that comprise the United States. The shear machine at issue in this case went directly from the Petitioner, to its U.S. distributor, to the New Jersey business where Mr. Nicastro worked and was injured. Given Petitioner’s efforts to reach and profit from the U.S. market as a whole, sales to customers in particular U.S. states are hardly the kind of random, fortuitous, or attenuated contacts that cannot be fairly attributed to the Petitioner. To refuse jurisdiction on these facts, on the other hand, would embrace a logical impossibility: that a manufacturer can purposefully target the U.S. market generally without also targeting the states that make up the territory of the United States. Moreover, it would immunize such a manufacturer from jurisdiction in any U.S. state, despite its deliberate efforts to access the entire U.S. market. This would create an undesirable and unnecessary disparity between a foreign manufacturer’s purposeful conduct directed at the U.S. market and the power of U.S. courts to exercise jurisdiction over claims arising from that conduct.

Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency

Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency

Urban and Rural Chinese Adolescents’ Judgments and Reasoning About Personal and Group Jurisdiction

This research applied social domain theory to illuminate reasoning about the perceived legitimacy and limits of group decision making (majority rule) among adolescents from urban and rural China (N = 160). Study 1 revealed that adolescents from both urban and rural China judged group decision making as acceptable for both social conventional and prudential issues, but not for personal issues or those that entailed possible harmful coercion of others. Study 2 revealed that personal jurisdiction develops later for rural than urban adolescents for certain issues (democratic rights to political participation and choice of friends). Results indicate that reasoning about group and personal jurisdiction in a non-Western society (China) is influenced by social domain, age, and environmental setting (modern vs. traditional).

Personal jurisdiction and the improper service of process

As emerging markets play a bigger role in the global economy, and corporate entities located in them continue to avail themselves of US markets, when and how such entities become subject to personal jurisdiction in US Courts for alleged patent infringement is a matter of increasing concern. In Nuance Communications, Inc. v Abbyy Software House, et al., the US Court of Appeals for the Federal Circuit laid out in great detail how two of the defendants (Abbyy Software, a Republic of Cyprus corporation, and Russian Federation Abbyy Production) were improperly dismissed for lack of personal jurisdiction and improper service of process outside the Hague Convention by the US District Court for the Northern District of California.

General Personal Jurisdiction after Goodyear Dunlop Tires Operations, S.A. v. Brown

General Personal Jurisdiction after Goodyear Dunlop Tires Operations, S.A. v. Brown

Miami Arbitration Reports: Unique Cases to Give Readers aBroader Understanding of Arbitration

ABSTRACT: This edition of MAR capitalizes on some unique cases to give readers a broader understanding of arbitration. First, we look at the scope of the arbitral clause within employment arbitration. The Fifth Circuit uses a factually challenging case to draw a bright-line rule and cir­cumscribe even the broadest of clauses. Second, Erica Franzetti from Crowell & Moring helpfully synthesizes the development of a recent line of cases on 28 USC 1782. As our first special contributor, she provides a timely analysis of a fascinating subject. Third, a domestic arbitration gives the Seventh Circuit a chance to expand the scope of 9 USC 5 in the context of the selection of an arbitrator. And finally, the Second Circuit looks at an attempt to confirm an arbitral award against a foreign state. It lays out some helpful rules in the context of personal jurisdiction, and pens an opinion opening interesting questions of due process and the interpretation of the Foreign Sovereign Immunities Act.

Judgment in the First Case Before the African Court on Human and Peoples' Rights: A Missed Opportunity or Mockery of International Law in Africa?

On 15 December 2009 the African Court on Human and Peoples’ Rights (‘the African Human Rights Court, or ‘the court’) sitting in Arusha, Tanzania delivered its first ever judgment. The purpose of this article is to reflect and comment on several issues and principles found in this first ever case to be filed before the court. In the course of discussion, the article will present the conclusion reached by the court and the Separate Opinion of Judge Fatsah Ouguergouz. At first, a discussion is on the arguments raised by the applicant, Mr Michelot Yogogombaye against Senegal in respect of the on-going legal proceedings instituted in Senegal against Hissene Habre, former President of Chad, charging him with crimes against humanity, particularly torture committed in Chad between 1982 and December 1990. Then, a discussion is on Senegal’s preliminary objections to the application touching on the lack of jurisdiction by the court on the basis that Senegal has not made a declaration under article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol) allowing individuals to institute cases against it before the court.Although the judgment of the court did not go into the merits of the case, this article discusses the implications that the judgment would have had on the developments of international law in Africa, had it gone into merits and substance of the case. It examines several key issues that had been raised by the applicant before the court. These include ‘functional immunity’ of former heads of state in relation to serious human rights violations as alluded to by the applicant; the principle of ‘universal jurisdiction’; retroactivity of penal laws; status of a political asylee under the law on refugees; issues of access to the court by individuals under the concept of personal jurisdiction (jurisdiction ratione personae) as reflected in article 5(3) of the Protocol, and whether the court may ‘receive’ applications from individuals against a state which has not made an express declaration under article 34(6) of the Protocol. In this connection, the article follows the interpretation of the words ‘receive’ and shall’ as found in articles 5(3) and 34(6) of the Protocol, and offers its own interpretation of ‘individuals’ as used in the same provisions of the Protocol. Further, it examines the possibility of the court’s judgment to suspend the decision of the Assembly of the African Union (AU) mandating Senegal to try Hissene Habre. The article further examines whether the court had been seized with an opportunity to develop its own jurisprudence on international law in Africa, in line with the provisions of the Protocol. In addition to the questions raised, the article also examines whether the applicant in the case had indeed understood some of the principles he contended that Senegal has violated in prosecuting Hissene Habre or his arguments are simply a mockery of international law and obligations of states in the prosecution and punishment of individuals who commit human rights violations. To understand the context of the judgment of the court, it is necessary that the application and preliminary objections as well as statement of defense filed before the court be discussed as a whole. But, before attempting to discuss the judgment of the court, it is necessary to consider the pre-existing legal proceedings against Mr Hissene Habre and Senegal before different legal and judicial institutions in the world. These proceedings will inform the readers about the context within which the present judgment of the court came into being. For brevity reasons, it suffices to highlight here that Hissene Habre sits at the centre of various legal proceedings before national and international judicial bodies. The prior legal proceedings that had been instituted against Mr Hissene Habre in Senegal and Belgium, as well as against Senegal before the United Nations Committee against Torture (CAT) and the International Court of Justice (ICJ) are the ones that also have an impact on the first case before the African Human Rights Court. What follows below is now a discussion on the judgment in the first case before the African Human Rights Court and its implications in Africa.

National Jurisdiction and Global Business Networks, Earl A. Snyder Lecture in International Law

It is a great honor for me to deliver the ninth Snyder Lecture. I have had the pleasure of attending many of the previous lectures delivered in Bloomington by members of the Cambridge faculty. I have also had the pleasure of hearing from those of my students who were given the opportunity to conduct research at the Lauterpacht Centre as Snyder Fellows. Our faculty is very grateful for Earl Snyder’s generosity in supporting these intellectual exchanges between our schools, and I personally am very grateful for this opportunity to address you. I will speak today about the exercise of jurisdiction by U.S. courts over global business networks. There are many ways in which the activities of U.S. courts intersect, and have long intersected, with international business activity, and so this topic calls up in part the procedural issues that are the bread and butter of international civil litigation. U.S. courts regularly assert personal jurisdiction over foreign corporations on the basis of their activities in the United States; they apply U.S. law to foreign conduct that is seen to harm certain interests within the United States; they enforce agreements that send crossborder contract disputes over into the transnational arbitration system. But while some of those practices are mundane and, at least in theory, unobjectionable, others are problematic, and from time to time a specific case or group of cases will trigger a resurgence of attention to the role that U.S. courts play in the international arena. I would point

Consumer Protection in Transnational Contexts

This Article provides an overview of United States consumer protection law in the growing number cases with an international dimension that arise with economic globalization, expanding transnational corporations, worldwide production chains, manufacturing outsourcing and more efficient international communication. U.S. consumer protection law remains primarily state law, including tort and product liability law, contract and warranty law, and general and product-specific consumer protection statutes. (This refers to the private law remedies for consumer goods which are the substantive laws addressed in this article.) There is little treaty-based, constitutional or federal law except for federal regulatory law that largely adopts state law standards, requires disclosure or encourages disclosure, monitoring and attention to consumer safety. Parties have extensive discretion to choose fora and governing law. Where parties do not so choose (as in noncontractual relations), plaintiffs have significant but limited discretion to select fora, and ordinary U.S. choice of law rules apply for substantive law, possibly with a greater tendency to choose U.S. law. Requirements for personal jurisdiction are similar to those in domestic litigation. Recognition and enforcement of foreign judgments depends partly on compliance with treaty obligations and application of relatively uniform state laws’ procedural and substantive standards. Class action litigation and alternative dispute resolution are available. In recent years, U.S. authorities increasingly have pursued international agreements and cooperative arrangements to increase regulatory capacity, enforcement and harmonized standards. The impact of intergovernmental cooperation has been limited, and U.S. consumers face formidable hurdles in seeking remedies against foreign defendants. Defective exports from China illustrate these limits and the increasing likelihood of foreign-based dangers to U.S. consumers. U.S. litigation against U.S. (and occasionally Chinese) defendants (many of which have foreign-based manufacturing facilities) shows how U.S. consumers can create incentives to pressure foreign producers to improve safety. Increased monitoring and regulatory harmonization may follow, benefiting U.S. consumers.

Teaching a process model of legal argument with hypotheticals

The research described here explores the idea of using Supreme Court oral arguments as pedagogical examples in first year classes to help students learn the role of hypothetical reasoning in law. The article presents examples of patterns of reasoning with hypotheticals in appellate legal argument and in the legal classroom and a process model of hypothetical reasoning that relates them to work in cognitive science and Artificial Intelligence. The process model describes the relationships between an advocate's proposed test for deciding a case or issue, the facts of the hypothetical and of the case to be decided, and the often conflicting legal principles and policies underlying the issue. The process model of hypothetical reasoning has been partially implemented in a computerized teaching environment, LARGO ("Legal ARgument Graph Observer") that helps students identify, analyze, and reflect on episodes of hypothetical reasoning in oral argument transcripts. Using LARGO, students reconstruct examples of hypothetical reasoning in the oral arguments by representing them in simple diagrams that focus students on the proposed test, the hypothetical challenge to the test, and the responses to the challenge. The program analyzes the diagrams and provides feedback to help students complete the diagrams and reflect on the significance of the hypothetical reasoning in the argument. The article reports the results of experiments evaluating instruction of first year law students at the University of Pittsburgh using the LARGO program as applied to Supreme Court personal jurisdiction cases. The learning results so far have been mixed. Instruction with LARGO has been shown to help law student volunteers with lower LSAT scores learn skills and knowledge regarding hypothetical reasoning better than a text-based approach, but not when the students were required to participate. On the other hand, the diagrams students produce with LARGO have been shown to have some diagnostic value, distinguishing among law students on the basis of LSAT scores, posttest performance, and years in law school. This lends support to the underlying model of hypothetical argument and suggests using LARGO as a pedagogically diagnostic tool.

Jurisdiction problems regarding Internet torts: Critical remarks

As the facts that led to the Dow Jones/Gutnick-decision of the High Court of Australia (10 December 2002) illustrate, the Internet is a powerful platform for communication. Its continuous worldwide accessibility urges discussion of a number of questions regarding tort jurisdiction. These are the starting points for some critical remarks regarding states' reciprocal claims to cross-border activities and the way in which they deal with the interests of the involved parties. For tort jurisdiction, the paper proposes and applies criteria for the assessment of the place where the harmful event has occurred or may occur (art. 5, subsection 3 Regulation 44/2001), as explained by the European Court of Justice of the European Union. Special attention is hereby given to some particularities that characterize Internet torts. On the one hand it concerns the alleged global assignment of jurisdiction that art. 5, subsection 3 may lead to and on the other hand the scope of the assigned jurisdiction in the court of the place where the damage occurs. The European approach is confronted with the principles of personal jurisdiction that are embedded in long arm statutes and the Due Process Clause, as applied in some leading American cases regarding Internet jurisdiction. It leads to suggestions regarding the development of a marginal test for the reasonableness of the jurisdiction art. 5, subsection 3 could lead to in a particular case, as well from the point of view of the weight of the connecting factor as to the scope of the jurisdiction that is based upon it.

Personal Jurisdiction Based on Internet Activities: Oldfield v. Pueblo de Bahia Lora, S.A. - The Eleventh Circuit Finally Discusses Zippo but Leaves Lower Courts Needing More Guidance

More than a decade ago, the most widely embraced test for determining whether a nonresident defendant's Internet presence satisfied the minimum contacts requirement of due process emerged in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. After Zippo, the nation's courts have largely used the Zippo sliding scale to determine whether a nonresident defendant's Internet conduct subjects the defendant to personal jurisdiction in the forum where a plaintiff encounters the Internet activities. Until Oldfield v. Pueblo De Bahia Lora, S.A. in 2009, the United States Court of Appeals for the Eleventh Circuit had not directly addressed Internet presence as a basis for minimum contacts and had never even cited Zippo. Due to this vacuum of direction, Eleventh Circuit district courts have had a mixed, even contradictory reception of Zippo. In Oldfield, the Eleventh Circuit squarely refused to express any opinion on the applicability of Zippo to the case at hand or Zippo's applicability in the Eleventh Circuit generally. This Article explores two main issues that arise from Oldfield. The first is Oldfield's missed opportunity to define Zippo's role in the Eleventh Circuit. Oldfield should have clarified that Zippo has no place in general jurisdiction analysis. The second main issue in Oldfield explored in this Article is the Eleventh Circuit's return to traditional personal jurisdiction analysis with an apparent slight variation of the traditional framework.

Civil Procedure - Effects of the "Effects Test": Problems of Personal Jurisdiction and the Internet: Dudnikov v. Chalk & (and) Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008)

Civil Procedure - Effects of the "Effects Test": Problems of Personal Jurisdiction and the Internet: Dudnikov v. Chalk & (and) Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008)

Can Rwandan President Kagame be held Responsible at the ICTR for the Killing of President Habyarimana?

In 2006, a French investigating judge suggested that Rwandan President Paul Kagame be prosecuted at the International Criminal Tribunal for Rwanda (ICTR) for the 1994 shooting down of the plane of President Juvenal Habyarimana which triggered that country's genocide. This article examines the evidence against President Kagame and the myriad of legal issues involved. Those issues include the applicability of the personal, temporal, and subject matter jurisdiction of the ICTR, the status of President Habyarimana as a combatant and principles of perfidy and proportionality. The authors conclude that while the shooting down of the plane may have been a war crime, the law on the matter is sufficiently unclear and therefore a prosecution of President Kagame would not be prudent.