Throwback Thursday: Forecasting Fuld

Nearly a decade ago, Professor Aaron Simowitz identified not only the problem presented in Fuld v. PLO (2025), but also the solution the Supreme Court ultimately adopted. This Throwback Thursday post highlights Simowitz’s article Legislating Transnational Jurisdiction (57 Va. J. Int’l L. 325), which offers important insights for those trying to make sense of Fuld’s rather cryptic and cagey pronouncements.

Prescient Observations

Rereading Legislating Transnational Jurisdiction after Fuld, one is struck by the article’s prescience. First, Simowitz traced how the Roberts Court’s curtailment of personal jurisdiction, particularly under Daimler AG v. Bauman (2014), was starting to cast doubt on the constitutionality of federal statutes that were intended to apply to defendants outside the United States—in particular, the Anti-Terrorism Act (ATA). That growing tension was going to bring to the fore, Simowitz predicted, the need to distinguish between the Fifth and the Fourteenth Amendments for personal jurisdiction purposes. Fuld involved ATA claims that had been repeatedly stymied by the Supreme Court’s restrictions on Fourteenth Amendment personal jurisdiction. And in Fuld, the Supreme Court clearly held that the Fifth Amendment analysis differs and is more flexible than that under the Fourteenth Amendment, enabling the Court to salvage an amendment to the ATA that Congress explicitly designed to assure personal jurisdiction in cases like Fuld.

Second, Simowitz emphasized Congress’s role in defining the scope of federal personal jurisdiction. In Simowitz’s view, Congress is a co-equal interpreter of the Constitution, and the Court should defer to Congress’s interpretation as expressed in subject-specific statutes. In Fuld, the Court emphasized the deference due to Congress on matters of foreign affairs and national security in particular. Though it did not explicitly frame its deference in terms of Congress’s role as an interpreter of the Constitution, deference to Congress was an important theme in Fuld.

Post-Fuld Insights

Simowitz’s article also offers several useful insights for the post-Fuld world. First, Simowitz catalogues a number of statutes that courts were struggling to apply after Daimler, which might be where we see Fuld have the greatest impact on the ground. These include the arbitration exception to Foreign Sovereign Immunities Act (FSIA) (as Bill Dodge has explored in a prior post), patent infringement under 28 U.S.C. § 1400(b), and the Hatch-Waxman Act.

Second, he identifies some of the benefits we can expect from untethering Fifth Amendment personal jurisdiction from the federalism limits incorporated in Fourteenth Amendment personal jurisdiction. It may enable the federal government to negotiate and enter into international private law treaties, like the one currently under development at the Hague Conference on Private International Law, and it can ensure that federal courts continue to fulfill U.S. obligations under existing treaty commitments, like the New York Convention. It can also enable Congress to develop a more targeted, less trans-substantive federal law of personal jurisdiction as Congress can be expected to specify far-reaching personal jurisdiction only for highly salient issues, which would more closely track the EU approach of tailored jurisdiction.

Continuing the Conversation

My praise for Simowitz’s prescient article does not mean I agree with all of its reasoning. For example, he is critical of the constitutionalization of personal jurisdiction in Pennoyer v. Neff (1878), downplays the role of personal liberty in the doctrine, and emphasizes that the Supreme Court has never held that foreigners have due process rights, referring to “the contested and uncertain right of Due Process personal jurisdiction as it is enjoyed by foreign persons.”

But possible points of disagreement aside, there is one aspect of Simowitz’s article that I find particularly generative in the post-Fuld world: what is the nature of the Court’s deference to Congress in Fuld or in future cases?

Fuld invoked Youngstown category one, explaining that the courts should be deferential when the political branches speak with one voice. That reasoning struck me as undertheorized, and Simowitz offers a more complete defense of deference to Congress—at least when it speaks clearly and in a targeted manner—as a co-equal interpreter of the Constitution.

Simowitz’s article also hints at two other ways of framing this deference. He catalogues how the Supreme Court has used state statutes asserting jurisdiction over outsiders when assessing the constitutionality of personal jurisdiction under the Fourteenth Amendment, in particular as evidence of reasonableness. Similarly, a federal statute asserting personal jurisdiction over foreign defendants could be understood as a clear indication of sovereign interest that weighs heavily—perhaps presumptively—towards the reasonableness of jurisdiction. My own reading of Fuld is that the decision’s deference to Congress boiled down to reading Congress’s statute as expressing a strong and targeted national interest, which made the exercise of jurisdiction reasonable—even though Fuld disclaimed deciding whether reasonableness is required for Fifth Amendment jurisdiction.

On the other hand, Simowitz’s review of personal jurisdiction doctrine also shares some similarities with the originalist theory that the Fifth Amendment’s Due Process Clause places no constraint on Congress. (I have questioned this theory in a series of recent posts.) Under that view, the courts should defer to congressional pronouncements on personal jurisdiction not because Congress is a co-equal interpreter of the Constitution, but because the question simply does not implicate the Constitution. One question I continue to ponder after rereading Simowitz’s article, then, is whether Simowitz’s proposed deference to Congress as a co-equal interpreter involves any outer limit, and if so, how do we know when Congress has passed it? If there is no such outer limit, is there any practical difference between Simowitz’s view and the originalist argument that Congress is unconstrained in its power to legislate personal jurisdiction?