Transnational Litigation and Personal Jurisdiction over Foreign Defendants

Article excerpt

I. THE PROBLEM II. THE HISTORICAL SETTING: PRE-ASAHI LITIGATION

A. Traditional Analysis

B. Modern Analysis: Implications of the Due

Process Clause

C. World-Wide and the Growth of Due Process

1. Minimum Contacts, Foreseeability, and Stream

of Commerce

2. Reasonableness: "Traditional Notions of Fair

Play and Substantial Justice"

3. Problems for the Transnational Litigator III. ASAHI, SHIFTING BURDENS, AND THE STREAM OF COMMERCE DILEMMA

A. Purposeful Availment: What Is a Constitutionally

Cognizable Contact?

1. Justice O'Connor: "Stream of Commerce Plus"

Theory--Receives Four Votes: Rehnquist, Powell,

O'Connor, and Scalia

2. Justice Brennan: "Stream of Commerce"

Theory--Receives Four Votes: Brennan, White,

Marshall, and Blackmun

3. Justice Stevens: Receives Three Votes--White,

Blackmun, and Stevens

B. Reasonableness

1. The Defendant's Burden

2. The Plaintiff's and Forum State's Interests

3. The International Context

C. The Holding: A Prima Facie Case IV. ASAHI'S AFTERMATH

A. The "Doctrine of Merger"

1. How to Cite an Incomprehensible Case

2. The Forum Court's Own Jurisdictional Test

Based on the Two Opinions

B. O'Connor's Standard

1. How Courts Adopt the Plurality Opinion in Asahi

2. Confusion Reinforced: The National Contacts Issue

a. Technically Correct: Ways to Authorize National Contacts

(i) A Federal Statute Authorizes Their Use

(ii) National and Worldwide Service of Process Provisions

(iii) Use of a State Long-arm Statute

b. Lower Courts and National Contacts

C. Staying with World-Wide

1. World-Wide Applies, but Asahi Is Out There

2. World-Wide Applies, Asahi Is Not Binding

D. Following Justice Stevens

E. Conclusion on Minimum Contacts

F. Reasonableness, V. CONCLUSION

Considered in an international point of view, jurisdiction, to

be rightfully exercised, must be founded either upon the

person being within the territory, or the thing being within

the territory; for, otherwise, there can be no sovereignty

exerted . . . no sovereignty can extend its process beyond its

own territorial limits, to subject either persons or property to

its judicial decisions.(1)

I. THE PROBLEM

In 1878, the United States Supreme Court formulated a two-prong test in determining whether a court has the power to hear a case.(2) The court developed this test in Pennoyer v. Neff,(3) and articulated the limitations on the judicial jurisdiction(4) of United States courts.(5) The Court borrowed two principles from public international law:(6) "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory . . . [and] no State can exercise direct jurisdiction and authority over persons or property without its territory."(7)

With the advancement of technology, the nature and number of communications and business relations has changed considerably.(8) The Supreme Court recognized this societal evolution and modified the Pennoyer jurisdictional principles by its decisions in International Shoe Co. v. Washington(9) and World-Wide Volkswagen Corp. v. Woodson.(10) With the two-prong test(11) transformed, courts now examine whether the defendant has a minimum amount of contacts with the forum state, and whether the exercise of that jurisdiction offends the "`traditional notions of fair play and substantial justice.'"(12)

The decisions in International Shoe and World-Wide, however, only resulted in confusion among the lower courts. …