Rethinking legal globalization: the case of transnational personal jurisdiction.

• Author: Childress, Donald Earl, III
• Position: Introduction through II. Transnational Personal Jurisdiction B. Transnational Personal Jurisdiction, p. 1489-1525

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.S. law to transnational facts. (13) Second, especially in cases involving a foreign plaintiff, U.S. courts dismiss the case in favor of another adequate foreign forum. (14) Put simply, scholars urge the global, and yet courts remain local.

One need look no further than recent Supreme Court decisions involving transnational litigation to find a prime example of this puzzle concretely moored in the personal jurisdiction doctrine. In the case of Goodyear Dunlop Tires Operations, S.A. v. Brown, North Carolina domiciliaries were killed in a bus accident in Paris, France, due to an allegedly defective tire manufactured in Turkey by a foreign subsidiary of Goodyear. (15) Plaintiffs argued that the North Carolina state court had general jurisdiction over the foreign defendants because the defendants sold their product in the United States, including in North Carolina. (16) In another case argued and decided the same day, J. McIntyre Machinery, Ltd. v. Nicastro, a New Jersey plaintiff was injured by a metal-shearing machine while working in New Jersey. (17) The machine was manufactured in England, where the defendant was incorporated, and distributed in the United States through the English manufacturer's independent Ohio distributor. (18) Plaintiffs argued that the New Jersey state court had specific jurisdiction because the product was purposefully directed at the United States market and caused an injury in New Jersey. (19) Given the foreign elements, both cases were ripe for the Justices to take account of the transnational context in which the personal jurisdiction doctrine operates, as the Court had done previously in Asahi Metal Industry Co. v. Superior Court. (20)

The Justices, however, never addressed the transnational facts of the cases in the controlling opinions. Instead, the Court held in both cases that the domestic personal jurisdiction doctrine did not permit the suits to be maintained in the United States. (21) Justice Ginsburg's dissent in Nicastro provided the only extended consideration of the case's transnational elements. There, she highlighted the reality of marketing arrangements used by international sellers in a globalized commercial world in which U.S. companies distribute the sellers' products all over the United States. (22) Justice Ginsburg suggested that suing international sellers at the place their products cause injury would be a fair and "reasonable cost of transacting business internationally." (23) The plurality did not address these arguments. In other words, the plurality was not concerned that these cases were transnational and implicated the applicability of U.S. law to facts occurring in whole or in part outside the United States. For this reason, the transnational personal jurisdiction doctrine will continue to confound courts and commentators in the years to come.

How courts treat these cases matters. Affording personal jurisdiction may increase transnational cases filed in the United States. It may also increase the possibility of regulatory conflict between U.S. and foreign sovereigns and their laws. Declining jurisdiction may decrease the incentive of filing such cases in the United States and impact the transnationalization of U.S. law. Whatever rule for transnational personal jurisdiction is adopted will impact whether transnational cases are filed in the United States; it will also influence whether U.S. courts engage with foreign law.

This concern is not purely academic. Since 1986, roughly 120,000 lawsuits involving a non-U.S. party have been filed in U.S. federal district courts. (24) In 2005 alone, when the most recent data were analyzed, 1,976 alienage cases terminated in U.S. federal district courts. (25) Although no precise figures exist, many of these cases likely involved personal jurisdiction questions. (26) As such, the Court's unwillingness to examine the transnational elements in the cases and provide concrete direction to lower courts is unsatisfactory.

The Court's failure to analyze personal jurisdiction from a transnational perspective presents an important and compelling question: Is globalization of law a chimera in U.S. judicial decision making? Concretely challenging the claim that globalization of law is occurring in U.S. courts, one recent study concluded that the number of transnational cases filed is going down and has been for some time. (27) Despite the fact that the general caseload of the federal courts has continued to rise, transnational cases have decreased from a high of 3,293 cases in 1996 to 1,637 cases in 2005. (28) The author concluded that, among other things, U.S. federal courts may evidence antiforeigner bias, at least as to extraterritorial harms. (29) On account of this bias, plaintiffs in transnational cases may be forum shopping away from the United States, which contradicts a key component of the globalization narrative--namely, that the United States is a magnet forum that attracts foreign cases to U.S. courts. Foreign plaintiffs, in other words, may not wish to take advantage of a U.S. approach to transnational cases that is parochial. (30)

There may even be a backlash to transnationalism. As one leading federal appellate judge and former law professor provocatively argued before the January 2012 gathering of the Association of American Law Schools, the "cult of globalization" that has entranced law schools should be discarded. (31) "Quite a few law schools have launched programs overseas, entered partnerships with foreign law schools, hosted globalization conferences, founded centers geared towards globalization and fostered student exchanges overseas." (32) In his view, although "[m]any of these international programs are worthy endeavors ... [they] are mostly a distraction from the core objective of a law school." (33) Something funny has happened on the way to U.S. legal globalization.

In light of this disconnect between academic and popular belief and the current state of practice, foundational questions arise: Should U.S. courts resolve transnational cases at all? If so, how should they be resolved...