Rethinking Legal Globalization: The Case of Transnational Personal Jurisdiction

By Childress, Donald Earl,, III | William and Mary Law Review, April 2013 | Go to article overview

Rethinking Legal Globalization: The Case of Transnational Personal Jurisdiction


Childress, Donald Earl,, III, William and Mary Law Review


ABSTRACT

Under what circumstances may a United States court exercise personal jurisdiction over alien defendants? Courts and commentators have yet to offer a coherent response to this question. That is surprising given that scholars have been calling for the globalization of U.S. law since the late 1980s as part of a transnational litigation narrative.

Through doctrinal and empirical analysis, this Article argues that a U.S. court should have power to exercise personal jurisdiction over an alien defendant not served with process within a state's borders when (1) the defendant has received constitutionally adequate notice, (2) the state has a constitutionally sufficient interest in applying its law or adjudicating a controversy involving its domiciliaries, and (3) the policies of other interested nations whose laws would be arguably applicable are given due respect and consideration and would not be adversely affected by the exercise of jurisdiction. Personal jurisdiction in transnational cases is, therefore, about choice of law. This Article revises the transnational personal jurisdiction doctrine through a concrete set of rules for courts to apply given the parties and laws at issue before a court.

TABLE OF CONTENTS

INTRODUCTION
I. THE TRANSNATIONAL LITIGATION NARRATIVE
     A. Early Incantations: Creating the Field of
        Transnational Law
     B. Modern Realities: Are Transnational
        Cases Different?
II. TRANSNATIONAL PERSONAL JURISDICTION
     A. Domestic Personal Jurisdiction
     B. Transnational Personal Jurisdiction
     C. Critical Evaluation: The Impact of
     Choice of Law
III. TRANSNATIONAL FORUM NON CONVENIENS
     A. The Doctrine's Scope
     B. The Relationship to Choice of Law
     C. The Doctrine's Impact
        1. Federal Impact
        2. State Impact
     D. Transnational Impact
IV. COMMON THEMES FOR TRANSNATIONAL PROBLEMS
     A. The Relevance of Choice of Law
     B. Transnational Personal Jurisdiction:
        A New Approach
     C. Benefits and Objections
V. A REVISED TRANSNATIONAL LITIGATION NARRATIVE
CONCLUSION

INTRODUCTION

Transnational law and globalization talk is in vogue. (1) Scholars have created a massive oeuvre of transnational legal scholarship. (2) Judges, including United States Supreme Court Justices, frequently travel abroad to teach transnational law and take part in law reform efforts in foreign countries. (3) In some cases, judges cite foreign law. (4) United States law firms have created transnational practice groups. (5) Many law schools include courses in international, transnational, and comparative law as part of their curricula and encourage study abroad programs. (6)

This transnational focus responds to the notion that law practice and the problems that lawyers resolve are increasingly "going global." (7) The trend also responds to arguments for a "global community of courts" to resolve transnational legal problems--the idea being that increased transnational activity will encourage courts to interact more frequently with one another. (8) Because of this globalization narrative, judges, lawyers, and law students are encouraged to study transnational law to gain tools to be modern, global lawyers practicing before modern, global courts. The academic narrative is appealing. This narrative, however, has a real-world problem.

For all of globalization's educational and personal benefits--and, to be clear, there are many (9)--empirical analysis of the work of U.S. courts in transnational cases surprisingly undercuts the practical relevance of the globalization narrative for judicial decision making. (10) For instance, there is little empirical evidence that courts extensively cite foreign law. (11) Indeed, lawyers seldom rely on it in arguing before courts, unless choice-of-law principles demand otherwise. (12) Instead of applying foreign law, U.S. courts typically adopt one of two strategies. First, courts reject the application of foreign law and apply U. …

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