Personal Jurisdiction and Extraterritoriality
The U.S. Supreme Court has repeatedly said that Congress has constitutional authority to regulate extraterritorially. “Both parties concede, as they must,” Chief Justice Rehnquist wrote in EEOC v. Arabian American Oil Co. (1991), “that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.” The presumption against extraterritoriality, which…
Continue ReadingCase Brought by Jamal Khashoggi’s Widow Dismissed
Hanan Elatr Khashoggi sued Israeli spyware companies in connection with the death of her husband, journalist Jamal Khashoggi. A critic of the Saudi government, Khashoggi was killed in Istanbul, Turkey at the Saudi Arabian consulate. Last year, Judge John Bates (D.D.C.) dismissed a civil suit against Saudi Crown Prince Mohammed bin Salman on grounds of…
Continue ReadingConstitutional Issues in the Sudan Claims Resolution Act
District courts and the Court of Appeals for the District of Columbia have recently issued opinions addressing constitutional issues in litigation against Sudan. The United States and the Republic of Sudan signed an agreement (the Claims and Dispute Resolution Agreement) designed to improve diplomatic relations between the two countries, to promote democracy in Sudan, and…
Continue ReadingFuld: Right for the Wrong Reason
In a major decision interpreting Mallory v. Norfolk Southern Railway Co. (2023), the Second Circuit in Fuld v. Palestine Liberation Organization held that personal jurisdiction may not be established by relying on the “deemed consent” provision of the Promoting Security and Justice for Victims of Terrorism Act (“PSJVTA”). A thorough review of the decision can…
Continue ReadingSecond Circuit Rejects Consent-Based Jurisdiction over PLO
Last Friday, the Second Circuit issued much-anticipated decisions in Fuld v. Palestine Liberation Organization and Waldman v. Palestine Liberation Organization, cases brought by U.S. nationals against the Palestine Liberation Organization (“PLO”) and Palestinian Authority (“PA”) for injuries sustained during terrorist attacks in Israel. After the Second Circuit held in an earlier decision in Waldman that…
Continue ReadingSupreme Court Roundup (October Term 2022)
During its 2022 Term, which ended four weeks ago, the Supreme Court decided five cases with important implications for transnational litigation. The questions included whether the Foreign Sovereign Immunities Act (FSIA) applies to criminal proceedings; the standard for aiding and abetting under the Anti-Terrorism Act (ATA); whether states may exercise general personal jurisdiction over foreign…
Continue ReadingThrowback Thursday: Insurance Corp. of Ireland v. Compagnie des Bauxites
In the Supreme Court’s end-of-Term personal jurisdiction case, Mallory v. Norfolk Southern Railway (2023) (prior coverage here, here, and here), Justice Jackson wrote separately to explain why she found “particularly instructive” the Court’s prior decision in Insurance Corp. of Ireland v. Compagnie des Bauxites (1982). Bauxites, a case about jurisdictional discovery and discovery sanctions, is…
Continue ReadingThe End of Yet Another Era? Some Reflections on Mallory
I was a young professor of civil procedure in 1977 when the Supreme Court decided Shaffer v. Heitner. The year after that decision came down, I wrote an article titled “The End of an Era” where I predicted the eventual demise of “tag” jurisdiction. I was proven completely wrong when the Court in 1990 decided…
Continue ReadingMallory, Consent, and Political Economy
The Mallory decision has been ably summarized here and elsewhere, so this post assumes familiarity and offers a few reflections. To begin with, while it might not be a popular opinion, I don’t find the decision to be that interesting. The result roughly lined up with how I thought the case would turn out. Mallory…
Continue ReadingMallory Decision Opens New Path for Personal Jurisdiction
The Supreme Court’s decision in Mallory re-opens the door to suing foreign companies in U.S. courts over disputes that arise in other countries. It may also have significant repercussions for personal jurisdiction doctrine more broadly.
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