Personal Jurisdiction: The Transnational Difference

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 personal jurisdiction should be understood within, and partly limited to, their international contexts. Disputes involving non-resident 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 ofrecent 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 reimagine public international law. It shows how the Fourth Restatement of the Foreign Relations Law of the United States—which asserts that personal 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 personal 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 personal 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.

Publication Date:
Sep 07 2019
Date Submitted:
Sep 09 2019
Virginia Journal of International Law, 59, 1

 Record created 2019-09-09, last modified 2019-09-10

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