Personal Jurisdiction Research Articles

Enforcement of Foreign Arbitration Agreements and Awards: Application of the New York Convention in the United States

International commercial arbitration provides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures. This Article provides a brief survey of American courts’ recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by examining the extent of the reciprocity and commercial reservations made by the United States and the circumstances under which the Panama Convention preempts the New York Convention. Turning to the enforcement of arbitration agreements and clauses, the Article examines American courts’ interpretations of the Convention’s requirement of a signed agreement in writing and the circumstances that can make an arbitration agreement “null and void” or “incapable of being performed.” The Article also summarizes courts’ treatment of claims of waiver and lack of knowledge regarding the existence of arbitration clauses. Regarding American courts’ enforcement of arbitral awards, the Article addresses the following defenses explicitly provided by the Convention: inability to present the case, lack of proper notice, lack of binding effect upon the parties, and violation of public policy. The Article also considers other defenses that arise out of application of the U.S. Constitution and federal rules of procedure: lack of personal jurisdiction and forum non conveniens. Finally, the Article distinguishes the circumstances that permit each of the following judicial dispositions: vacatur of arbitral award, enforcement or refusal to enforce arbitral award, and adjournment or stay of arbitral award

Daimler AG v. Bauman: Creating a Fair and Predictable Definition for General Jurisdiction

Fairness is a fundamental requirement in the U.S. personal jurisdiction analysis. Fairness in personal jurisdiction emerges from Due Process, which focuses on the relationship between the forum state and the defendant. Any court not recognizing or regarding a corporation’s and activity in a forum state as making them essentially at home runs the risk of ignoring fairness and justice. The majority in Daimler AG v. Bauman did just that. Justice Ginsburg’s opinion asserts that showing continuous and systematic activity alone is not enough to establish general jurisdiction. Yet limiting general jurisdiction just to a corporation’s principal place of business or state of incorporation provides a means for foreign corporations conducting business in the U.S. to escape vicarious liability. This Article provides an interpretation of continuous and systematic activity for foreign corporations that takes into consideration Justice Ginsburg’s international comity and predictability concerns in connection with the American jurisprudence of fairness. This Article suggests how the agent-principal relationship can be used to establish general jurisdiction over foreign corporations. In addition, this Article explores the evolution of general jurisdiction in the U.S. and in Europe. This Article concludes with an emphasis on the American jurisprudence of fairness over predictability in establishing personal jurisdiction.

Multinational Enterprisess Liability for the Acts of Offshore Subsidiaries: The Aftermath of Kiobel and Daimler

Multinational enterprises (MNEs) play significant role with worldwide subsidiaries in the global economy. MNEs generally dominate agreements with their offshore subsidiaries to promote their global operation. How to hold MNEs liable for the tortious acts of their offshore subsidiaries is a pressing issue. National courts, international norms and MNEs’ internal code of conduct cannot legally and effectively hold MNEs liable for offshore subsidiaries’ tortious acts. After the Supreme Court case Filartiga v. Pena-Irala in 1980, the U.S. Alien Tort Statue (ATS) rose to provide a mechanism to hold MNEs liable for offshore tortious acts. Suits filed under the ATS have caused conflict in United States courts in the past, including those related to the issue of corporate ATS liability. The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. in 2013 asserted that the ATS could only apply to violations occurring within the territory of the United States. Half a year later, with facts similar to those in Kiobel, the Supreme Court in Daimler AG v. Bauman in January 2014 asserted that ATS litigation should also satisfy the strict general jurisdiction requirement. And thus many cases are filtered out of United States courts due to ATS territorial limitation and jurisdictional limitation. Barriers to post-Daimler litigating under the ATS to hold MNEs liable for the tortious acts of offshore subsidiaries are difficult to pass through. These barriers could include the principle of presumption against extraterritorial application, the limitation of personal jurisdiction, and international comity, among other barriers. The United States seems to have closed the door for transnational litigation to hold MNEs liable for the tortious acts of offshore subsidiaries. Even though United States courts are returning to their original position prior to the rise of ATS litigation, several strategies to impose liability on MNEs for the acts of offshore subsidiaries after Kiobel and Daimler might achieve success, including the correct application of the ATS, litigation in state courts or under state law, the expansion of the piercing the corporate veil doctrine and obtainment of consent from parties.

Escaping Federal Law in Transnational Cases: The Brave New World of Transnational Litigation

What happens when U.S. federal courts close their doors to transnational cases? Recent Supreme Court decisions regarding the Alien Tort Statute, extraterritorial application of U.S. federal law, personal jurisdiction, plausibility pleading, class action certification, and forum non conveniens pose substantial obstacles for transnational cases to be adjudicated by U.S. federal courts. The result of this is that plaintiffs are now seeking other law — U.S. state and foreign law — and other for a — including U.S. state and foreign courts — to escape federal law in order to plead transnational claims. This Article offers a first glimpse at a brave new world of transnational litigation where federal, state, and foreign courts compete through their courts and law to adjudicate transnational cases and regulate transnational activities. The Article also explores the impact that closing federal law and federal courthouse doors to transnational claims might have on state law, foreign law, and transnational law generally. After critically evaluating this new world of transnational litigation, the Article offers a framework for resolving forum competition in transnational cases.

The Supreme Court's New Approach to Personal Jurisdiction

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control. This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and a corporation’s states of incorporation and principal place of business. It will not be available based on a defendant’s “continuous and systematic” forum contacts, absent exceptional circumstances. In dicta, the Bauman Court also suggested a correspondingly larger role for specific jurisdiction, in which a court would, first, determine if “the connection between the forum and the episode-in-suit could justify the exercise of jurisdiction,” and, if so, it would move to a second-step analysis of whether the exercise of jurisdiction is reasonable. Bauman would, thus, apply a reasonableness analysis to both general and specific jurisdiction.In the second case, Walden v. Fiore, the Court applied a liberty interest approach, but one, it emphasized, that “principally protects the liberty of the nonresident defendant – not the convenience of the plaintiff or third parties.” The Walden Court ultimately reunited the antagonistic theories of reasonableness and protection of interstate federalism and limited the reach of specific jurisdiction on the facts of the Walden case. The Court has entered a new era of constrained general jurisdiction. This Article concludes that the era should also be characterized by broader specific jurisdiction, and it advocates adoption of an approach similar to that suggested in dicta in Bauman. This approach would provide coherence to the Court’s personal jurisdiction doctrine and give legitimacy to its narrowing of general jurisdiction.

A Survey of Personal Jurisdiction Based on Internet Activity: A Return to Tradition

A Survey of Personal Jurisdiction Based on Internet Activity: A Return to Tradition

Rethinking Personal Jurisdiction

This article sets out a pragmatic justification for the main features of current personal jurisdiction doctrine. According to that justification, personal jurisdiction rules minimize litigation costs and bias. This approach to personal jurisdiction helps resolve difficult and open jurisdictional issues, such as the scope of general jurisdiction and the validity of jurisdiction based on the stream-of-commerce theory. This article then explores the empirical assumptions underlying this pragmatic explanation for current doctrine and shows how doctrine should change if those empirical assumptions were incorrect. For example, the Supreme Court’s “purposeful availment” requirement is justified only if the danger of bias against out-of-state litigants is high. If that danger were low, it would make sense to allow plaintiffs to sue in their home states, even if defendants had not purposefully availed themselves of the benefits of that state.

Evaluation of Concept of Nationality, Significance, and Development: The Law Relating to Nationality

‘Nationality’ is a term of art used to denote the primary legal connection between an individual and a state, but it is an inconstant expression employed for different purposes in international law and in municipal law and in differing contexts in both. There is no necessary coincidence between the terms as used internationally and domestically. For example, in international law, a State may diplomatically protect its nationals, but it may also in some cases protect people who are not its nationals, and in some instances, it may not protect people whom it regards domestically as its nationals but whom international law places beyond its protective jurisdiction. It is therefore not true to say that nationality is the basis for diplomatic protection or personal jurisdiction, but is it true to say that it is irrelevant to a claim neither to protect nor to exercise jurisdiction. The most that can be said is that, except in special circumstances, States may only protect, or exercise jurisdiction over, national, but that the mere assertion of nationality is insufficient to this end.

THE COURT'SIN PERSONAMJURISDICTION IN CASES INVOLVING FOREIGN LAND

AbstractTheMoçambiquerule provides that an English court may not adjudicate on title to foreign immovable property. This article considers the primary exception to that rule: where the court assumes jurisdictionin personamto enforce a contractual or equitable claim concerning foreign immovable property against a defendant subject to the court's personal jurisdiction. It addresses two questions: how should the English court decide whether to assume jurisdiction in relation to foreign land, and if the positions are reversed, should an English court recognize or enforce the order of a foreign court affecting English land? As to the first question, this article argues that the orthodox English approach is anachronistic. English law applies thelex foriexclusively to determine whether an obligation exists which the court has jurisdiction to enforce. Instead, modern conflict of laws principles demand that the court should apply the proper law of the substantive claim in determining whether a sufficient equitable or contractual obligation exists. As to the second question, this article argues that despite the prevailing view that foreign non-money judgments are not enforceable in England, foreign orders in relation to English land are in principle entitled to recognition in a subsequent action in England by the successful claimant.

Party Control of Judicial Authority

American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my theory, parties fall in the lowest tier of the power heirarchy, beneath the law on top and judicial authority in the middle. Party subordinance means that the law — not party agreement — binds the court, and even when parties can lawfully make litigation choices, those choices generally do not bind the court. The upshot is that parties in fact have far less control over their litigation than previously assumed. Party subordinance suggests that the trend toward litigation customization is on shakier footing than presently acknowledged, reorients some key elements of the normative debate surrounding customization, and exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. At its broadest, the theory of party subordinance shifts the way the federal litigation system views the heirarchy among parties, courts, and the law.

Personal Jurisdiction Over Foreign Companies: New Developments in us Law

The US Constitution allows for jurisdiction over non-resident defendants who have ‘minimum contacts’ with the forum. While foreign corporations view the US as a common market, the 50 states are jurisdictionally independent. Thus, for foreign corporations, jurisdiction depends on having minimum contacts with the forum state. US courts distinguish between two types of contacts-based jurisdiction. Specific jurisdiction requires contacts related to the cause of action and even a single purposeful contact can support jurisdiction. General jurisdiction is based upon contacts unrelated to the cause of action and the contacts must be ‘continuous and systematic’. In 2011, the US Supreme Court issued two important opinions, each finding a lack of personal jurisdiction over foreign corporate defendants in products liability actions. In one case, the product caused harm in the forum, and thus was a specific jurisdiction case. In that case, the Supreme Court attempted to clarify its ‘stream of commerce’ test, but could not agree upon a rationale. A majority of the Justices, however, concluded that the foreign defendant had not targeted the forum state and thus rejected jurisdiction. In the other, the product caused harm abroad, and thus jurisdiction rested on unrelated sales in the forum state. The Justices unanimously rejected jurisdiction, finding unrelated sales insufficient to make the defendant ‘at home’ in the forum. While each decision leaves questions unanswered, foreign corporations hoping to avoid US courts are best served by compartmentalising their operations, either using independent distributors or creating US subsidiaries that have a distinct corporate identity.

Personal Jurisdiction and Corporate Groups: DaimlerChrysler AG v. Bauman

Large firms are often organized into corporate groups or conglomerates. Disputes, however, are frequently adjudicated by courts that have jurisdiction over only some components of that group. The U.S. Supreme Court’s upcoming decision in DaimlerChrysler AG v. Bauman potentially addresses this tension between multinational corporate groups and court jurisdiction. The case involves Argentine plaintiffs who sued a German corporation in the United States, alleging violations of the Alien Tort Claims Act and the Torture Victims Protection Act. The question before the U.S. Supreme Court, however, is the scope of personal jurisdiction over non-resident defendants. This article proposes a framework for understanding what is at stake in the U.S. Supreme Court’s decision. The consequences of the decision depend on how the Court analyzes three aspects of personal jurisdiction. The first is the extent to which a subsidiary’s contacts with a forum state can be imputed to the corporate parent. The second is so-called “general” jurisdiction – whether the contacts are so extensive that the court may exercise personal jurisdiction over a defendant for any cause of action, even one unrelated to the contacts. The third is whether jurisdiction would be “reasonable,” which requires courts to apply a discretionary multifactor analysis. Ultimately, the opinion is unlikely to resolve either the scope of the underlying statutes (especially the Alien Tort Claims Act) or, given early concessions by the litigants, the extent of contacts required to establish general jurisdiction. Instead, it provides an opportunity to develop much needed guidance about jurisdictional attribution in the context of corporate groups, or to serve as another example of a discretionary, policy-driven analysis of the reasonableness of jurisdiction in the context of multinational businesses.

Wading Through the Stream of Commerce: When Can Foreign Manufacturers Expect to be Subject to Specific Jurisdiction in United States Courts?

THE QUESTION of whether a court may exercise personal jurisdiction over foreign product manufacturers on the basis of introducing goods into the of has produced much litigation and confusion since that phrase was introduced in World-Wide Volkswagen Corp. v. Woodson. (1) Recently, after two decades of relative silence, the United States Supreme Court attempted to clarify the stream-of-commerce doctrine in J. McIntyre Machinery, Ltd. v. Nicastro (2) and Goodyear Dunlop Tires Operations, S.A. v. Brown. (3) Unfortunately, although Goodyear articulated some helpful limits on general jurisdiction, neither decision clarified the stream-of-commerce theory of specific jurisdiction. As a result, foreign manufacturers continue to face uncertainty about when they can expect to be haled into a particular United States court under that theory. This article discusses the origins of the stream-of-commerce doctrine and its development through the years, including the Supreme Court's most recent decisions on the issue--McIntyre and Goodyear. Despite the confusion left intact after McIntyre and Goodyear, as a practical matter, courts have tended to focus on three broad factors in deciding whether to assert specific jurisdiction over foreign manufacturers. Those factors are: a manufacturer's awareness of or control over downstream distribution, the volume of product that enters the market, and the manufacturer's with the United States overall as compared to the forum where suit is brought. This article discusses a number of representative post-McIntyre cases that consider these factors in their analyses of stream-of-commerce jurisdiction and provides a list of specific facts that may inform a court's analysis of these three factors in a given case. I. The Origins and Development of the Stream-of-Commerce Doctrine A. Origins of, and Confusion Over, the Doctrine In addition to any restrictions that a state's particular long-arm statute may provide, federal constitutional due process requires that the defendant have certain minimum with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' (4) Minimum contacts requires the defendant to have purposefully avail[ed] itself of the privilege of conducting activities within the forum State. (5) Purposeful availment may arise when a manufacturer introduces goods into the of commerce, a phrase introduced by the Supreme Court in World-Wide Volkswagen. In that case, the Court said, in dicta, that [t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a [foreign] corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. (6) Seizing upon this language, some lower courts asserted that a manufacturer can be subject to jurisdiction simply by introducing goods into the stream of commerce. (7) The Supreme Court again addressed the stream-of-commerce theory in Asahi Metal Industry Co., Ltd. v. Superior Court of California. (8) Asahi was a product liability action arising out of a motorcycle accident. The rider of the motorcycle asserted that he was injured and that his passenger was killed because the motorcycle's rear tire exploded. The rider brought suit in California state court against both the Taiwanese manufacturer of the tire tube and the Japanese manufacturer of the tube's valve assembly. The Taiwanese manufacturer filed a crossclaim seeking indemnification from the Japanese manufacturer. The injured rider eventually settled his own claims, leaving only the crossclaim by the Taiwanese manufacturer against the Japanese manufacturer, and the Japanese manufacturer moved to dismiss on the basis of a lack of personal jurisdiction. Ultimately, the Supreme Court held, in a part of an opinion authored by Justice O'Connor and joined by seven other Justices, that jurisdiction over the Japanese manufacturer would be unreasonable and unfair. …

The liability of website owners for defamation in Israel: A challenge yet to be solved?

From the end of the twentieth century to the present we have witnessed the effects of technology on the way we consume and distribute information. The print media, which in many ways was the natural product of the printing revolution, has given way to the electronic media with websites providing the new “town squares” in which the public discourse is held on political, economic and social issues among others. The Israeli legal system, like the legal systems in other countries, faces a variety of challenges and complex ethical and legal issues when required to regulate (often retrospectively) the manner and processes through which the discourse will be conducted in the virtual “town hall”. In essence, this article focuses on one of the many questions occupying the Israeli legal system and that is whether website owners should be liable in defamation for speech published by third parties on the Internet (through blogs, tweets on Twitter, posts on Facebook,11As of the date of writing this paper, the Israeli courts have been presented with only a single incident in which the defendant's statement of claim included Facebook Corp. as a potential defendant. The plaintiff, a mayor one of the major municipalities in Israel, sued six citizens for defamation. The court held that users could institute legal proceedings for defamation against Facebook although ultimately the case against Facebook was dismissed due to lack of personal jurisdiction CC 24553-06-12 Oved v. Oved (July 16, 2012), LawData (by subscription) (Isr.). In a recent case heard by the High Court of Northern Ireland, plaintiffs were awarded £35,000 in damages after the defendant posted false and abusive messages and information relating to the plaintiffs on Facebook. The claim against Facebook was dismissed. See AB Ltd. v. Facebook Ireland Ltd. (Feb. 6, 2013) [2013] NIQB 14 http://www.bailii.org/nie/cases/NIHC/QB/2013/14.html (last visited Apr. 6, 2013). Although the defendant was anonymous, his identity was disclosed. See also News: Northern Ireland Judge Awards £35,000, Feb. 9, 2012, http://inforrm.wordpress.com/2013/02/09/news-northern-ireland-judge-awards-35000-damages-for-anonymous-facebook-libels/ (last visited Apr. 6, 2013). In a similar case, a Facebook user created a page entitled “keeping our kids safe from predators” which was designed to warn parents against convicted child sex offenders such as the plaintiff. The plaintiff applied for an order requiring Facebook to monitor the content of the page and immediately remove such publication from the Facebook website. The Court held that the content of the offending Facebook page constituted, unlawful harassment of the plaintiff and further held that the perpetuation of the website created a risk of infringing the plaintiff rights to freedom from inhuman and degrading treatment under Article 3 of the ECHR, together with plaintiff's right to preserve his privacy and family life under Article 8 of the ECHR. See X v. Facebook Ireland Ltd. [2012] NIQB 96 (Ir.). uploaded video clips on YouTube and the like) when no connection exists between the third party and the site owner apart from the fact that the third party has used the website as a platform to publish the offensive speech. The issue of the liability of the website owner has ramifications for the injured party's capacity to institute an action for defamation against the website owner, as often only the latter will be in a position to compensate the injured party (financially) for the offensive speech. The Israeli legal system, which in many ways furnishes a unique and interesting framework for examining the question posed above, as we explain in the body of the article, presents a fascinating example of how the Israeli legislature and the courts have dealt and continue to deal with claims filed against website owners for damage to reputation as a result of speech published by third parties. The article offers a comprehensive review of the status of the right to freedom of speech, anonymity and the right to reputation in Israel, the considerations for and against the imposition of liability on website owners and the latest case law on these questions.

Internet Jurisdiction: A Survey of Legal Scholarship Published in English and United States Case Law

This study provides a survey of the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in the United States. A companion study, released simultaneously, explores similar issues as they are treated in the German legal system. The goal of the report is to identify trends in legal literature and case law and to serve as a comprehensive, objective resource to assist scholars and policy-makers looking to learn about the issues of jurisdiction on the Internet. The U.S. study shows that most academic scholarship discusses all three aspects of jurisdiction law — personal jurisdiction, choice of law and jurisdiction to enforce — within the individual articles. In addition, the literature treats a noticeably wide variety of legal areas — including, for example, analyses of specific cases, particular issues related to e-commerce, and the regulation of online speech — but overall, does not appear to have a consensus on an approach or solution that cuts across the varied areas of law addressed by the scholarship. Thus, in effect, a review of academic scholarship shows that Internet jurisdiction is as varied as the legal issues and fields of law it permeates.With respect to U.S. case law, Fordham CLIP's research indicates that issues surrounding Internet jurisdiction gravitate toward the Ninth Circuit and the Second Circuit more so than other federal circuits. Moreover, contrary to the body of academic literature, the research demonstrates that U.S. courts predominantly adjudicate matters of personal jurisdiction in Internet cases rather than other subsets of jurisdiction, and that Internet jurisdiction issues trend toward intellectual property and defamation cases. Lastly, the case law shows that, although the Zippo and Calder decisions remain the clear, predominant legal standards and tests for Internet jurisdiction matters, when and how these rules are applied by U.S. courts lacks uniformity.

An analysis of traditional rules applied by Australian courts to establish personal jurisdiction and their application in e-commerce

This article analyses the jurisdictional principles employed by Australian courts in establishing personal jurisdiction in traditional settings and its extension to e-commerce cases. The Australian courts apply the court rules to exercise personal jurisdiction over defendants. The article discusses these rules relating to serving process within and outside Australia and jurisdiction based on the submission of the parties. The adequacies of principles like forum-non-conveniens, forum selection clauses which are vital in the personal jurisdiction inquiry are analysed. The unique High Court decision in Dow Jones v. Gutnick is discussed and the approach followed by the court critically analysed to highlight the excessive exercise of personal jurisdiction. Other cases concerning the internet are also discussed to highlight the approaches followed to establish personal jurisdiction in internet and e-commerce cases. It is argued that the drawbacks highlight the need for legislation to regulate personal jurisdiction in e-commerce cases.

Comparative choice of jurisdiction rules in cases having a foreign element: are there any lessons for Nigerian courts?

The question of when and how a forum court should exercise jurisdiction in civil matters having foreign elements has been a controversial one among judges, legal writers and students of conflict of laws. In Nigeria, the problem is more pronounced as the state operates a federal system of government, with each state having its distinct legislature and court system. The issue of interstate (and international) choice of jurisdiction in Nigeria has become more prominent in recent times due to cultural, social and commercial exchanges between private individuals or corporations from different parts of the country. While the majority of legal systems in the world now allow their courts to be seized of any matter with a foreign element once there is nexus between such matter and the forum state, Nigerian courts do not appear to be thinking in that direction. The courts over the years have maintained, though erroneously, that it is only the court of the state where a cause of action arose that can exercise jurisdiction over such a matter, especially in in personam actions. This paper seeks to point out the fallacy of the Nigerian courts in applying a strict territorial approach to jurisdiction in matters having a foreign element; the injustice and inconvenience it may occasion; and the fact that such a ‘straight jacket’ approach is out of tune in the modern world jurisprudence of personal jurisdiction.

A New Procedure for State Court Personal Jurisdiction

This article explores a simple but fundamental reform of the rules governing the state court personal jurisdiction: Congress could grant federal district courts the full judicial power authorized by the Constitution coupled with discretion to dismiss, transfer or remand cases when it appears that some other forum is clearly more adequate for resolving the controversy. If implemented, this reform could improve the fairness and efficiency of civil justice in the United States.

In Search of the Most Adequate Forum: Personal Jurisdiction

To what extent do the rules on state court personal jurisdiction distribute litigation to the forum that can resolve the dispute at the lowest social cost? It turns out that current rules do select the least-cost forum in many cases. However, three problems interfere with the goal of minimizing the costs of dispute resolution: (a) analysis under the Due Process Clause does not account for the full social costs of litigation; (b) federalism-based concerns sometimes allow state courts to adjudicate cases when they are not the most adequate forums; (c) institutional factors constrain the Supreme Court’s ability to prevent excessive exercises of state court jurisdiction. The dilemma of achieving forum efficiency within the existing legal and institutional framework helps to explain the confusion that pervades the Supreme Court’s state court personal jurisdiction cases.

Personal Jurisdiction and Choice of Law in the Cloud

Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the “cloud” as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in recorded history, cloud computing is — both practically and legally — a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than a product, represents an evolution to a contractual foundation for all relevant interactions.Already, substantive cloud-related disputes have erupted in a variety of legal fields, including personal privacy, intellectual property, and antitrust, to name a few. Yet before courts can confront such issues, they must first address the two fundamental procedural questions of a lawsuit that form the bases of this Article — first, whether any law applies in the cloud, and, if so, which law ought to apply. Drawing upon novel analyses of analogous Internet jurisprudence, as well as concepts borrowed from disciplines ranging from economics to anthropology, this Article seeks to supply answers to these questions. To do so, we first identify a set of normative goals that jurisdictional and choice-of-law methodologies ought to seek to achieve in the unique context of cloud computing. With these goals in mind, we then supply structured analytical guidelines and suggested policy reforms to guide the continued development of jurisdiction and choice of law in the cloud.