Supreme Court Ducks Fifth Amendment Due Process Question
The Supreme Court denied certiorari yesterday in Douglass v. Nippon Yusen Kabushiki Kaisha. This highly-watched case raises an important question that the Court will have to address sooner or later: the Fifth Amendment due process limitations on personal jurisdiction. The Supreme Court’s personal jurisdiction cases have repeatedly interpreted the Due Process Clause of the Fourteenth Amendment…
Continue ReadingFloating Forum Selection Clauses
Most forum selection clauses refer specifically to the courts of a particular jurisdiction. Floating forum selection clauses are different. A floating clause does not reference any court by name. Instead, it ties the choice of forum to a mutable fact that can change after the contract is made. The possibility that the identity of the…
Continue ReadingPGA v. LIV: Golf, Discovery, Immunity and PIF — The Saudi Arabian Sovereign Wealth Fund
Just as the competition between PGA Tour and LIV Golf has divided the golf world, so too may the immunity issues raised by the litigation divide legal experts. Sadly, this post is pretty weak in terms of golf puns – par for the course in legal writing about immunities – but it does address interesting…
Continue ReadingAn Exemplary Decision
It is important to have high standards… especially when it comes to forum selection clauses, personal jurisdiction, and forum non conveniens. Since its inception, this blog has discussed a number of judicial decisions where these high standards were not fully met. One can find posts offering criticism here and here and here and here and…
Continue ReadingThrowback Thursday: Forty Years of the Bancec Test
The Supreme Court’s 1983 decision in First National City Bank v. Banco Para El Comercio Exterior de Cuba was saddled with a cumbersome mouthful of a title, one confusingly similar to a 1972 opinion in another important case, First National City Bank v. Banco Nacional de Cuba. Fortunately, the 1983 decision was quickly dubbed Bancec, an…
Continue ReadingChoice of Law in the American Courts in 2022
The thirty-sixth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2022 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, foreign official immunity, the act of state doctrine, adjudicative jurisdiction, and the recognition and enforcement of foreign…
Continue ReadingHome Isn’t Just Where the Nerve Center Is
An opinion last month issued by a Texas appellate court illustrates a tempting but potentially dangerous doctrinal shortcut: applying a test developed for subject matter jurisdiction to the analysis of general personal jurisdiction. The diversity statute (28 U.S.C. § 1332) defines a corporation’s citizenship as its place of incorporation and its “principal place of business”…
Continue ReadingBeer Halls and Forum Selection Clauses
Homer Simpson once described alcohol as the “cause of, and solution to, all of life’s problems.” The same can be said for forum selection clauses. In the hands of the cognoscenti, these provisions can operate as magical elixirs that completely insulate a litigant from liability. In the hands of those unfamiliar with their intricacies, these…
Continue ReadingRecapping Media Coverage of Mallory
Last Tuesday, the Supreme Court heard oral arguments in Mallory v. Norfolk Southern Railway Co., a personal jurisdiction case on review from the Pennsylvania Supreme Court. Robert Mallory, a Virginia resident employed in Virginia and Ohio, sued Norfolk Southern, then based and incorporated in Virginia, in Pennsylvania state court. The case asks the Supreme Court…
Continue ReadingCert Petition Raises Personal Jurisdiction Question in Context of the TVPRA
The Trafficking Victims Protection Reauthorization Act (TVPRA) explicitly authorizes extraterritorial application to six predicate offenses (18 U.S.C. § 1596) and creates a private right of action (18 U.S.C. § 1595). Assuming without deciding that § 1595’s civil remedy extends extraterritorially to the same extent as those six predicate offenses, the Ninth Circuit in Ratha v….
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