Thoughts on the Petitioner’s Brief in Great Lakes
In a prior post, I surveyed the facts, procedural history, and potential significance of Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, an upcoming Supreme Court case about the enforceability of choice-of-law clauses in maritime insurance contracts. In this post, I offer some thoughts on the brief filed by the petitioner, Great Lakes Insurance…
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.
Continue ReadingClimate Change Decision Points to the World’s Courts
Earlier this year, the Supreme Court of Hawaii issued a major decision about climate change. The case related to a request that the state Public Utilities Commission (PUC) approve a biomass power plant that purportedly would have had negative environmental effects. The PUC denied approval and the Supreme Court affirmed, announcing that the state constitution’s…
Continue ReadingDon’t Forget About State Courts
Transnational litigation in the United States is often thought of as a matter for the federal courts. While it is true that many transnational cases end up in federal courts, state courts routinely hear transnational cases too. Scholars have started to catch on, with recent papers studying state courts’ approaches to the presumption against extraterritoriality,…
Continue ReadingA Primer on Service of Process
Serving process on a defendant does two things: (1) it asserts the court’s authority over the defendant; and (2) it provides the defendant with notice of the lawsuit. In the United States, process can be served by private parties. But many foreign states regard service as a public act that can be done only by…
Continue ReadingIs the Treaty Supremacy Rule Really Dead?
In Medellín v. Texas, the U.S. Supreme Court held that a non-self-executing treaty does not supersede conflicting state law, or perhaps that courts cannot enforce non-self-executing treaties to override conflicting state laws. After Medellín, one would have expected state courts in treaty supremacy cases to begin their analyses by determining whether a treaty is self-executing….
Continue ReadingThe Extraterritorial Application of State Wage and Hour Laws
Many U.S. states have enacted wage and hour laws. These laws generally set a minimum wage and require employers to pay overtime. When a company headquartered in one state hires an employee to perform work in a foreign country, however, it is not always clear which jurisdiction’s laws will apply. Is the payment of wages…
Continue ReadingColorado Court Holds That Forum Non Conveniens Dismissal Is Not Preclusive
When a court in the United States grants a motion to dismiss for forum non conveniens, finding that a plaintiff’s claims should be litigated abroad, may the plaintiff instead choose to refile its claims in another U.S. jurisdiction? The answer will often be yes because the forum non conveniens dismissal does not have issue preclusive…
Continue ReadingWhen Should Federal Common Law Govern Transnational Litigation?
The conventional wisdom is that transnational litigation “can trigger foreign relations concerns.” Because the federal government has primary responsibility for the United States’ relations with other nations, the question naturally arises whether federal law should govern such litigation even when neither a federal statute, nor the U.S. Constitution, nor a treaty is applicable. Currently, as…
Continue ReadingA Primer on State Law in Transnational Litigation
The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the U.S. Constitution, international treaties, customary international law, federal statutes, federal rules, and federal common law (both preemptive and non-preemptive)—but also, state statutes, state rules, and state common law. This primer focuses on the underappreciated role of state…
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