My colleague Scott Dodson has built himself a prominent place in American jurisdiction law, in a series of articles on personal jurisdiction and subject–matter jurisdiction. He’s also been carving out a niche in comparative civil procedure. In “Personal Jurisdiction in Comparative Context,” forthcoming in the refereed American Journal of Comparative Law, Professor Dodson combines his jurisdictional and comparative focuses to provide an important analysis of shifting American jurisdictional doctrine that fits it into the personal jurisdiction rules of the rest of the world.
One starting point for those considering jurisdiction doctrine in comparative context is recognizing how exceptional the internal features of U.S. civil litigation appear from the non-U.S. perspective. Here’s a list of features an American lawyer would regard as standard that would likely startle lawyers from elsewhere: Pleading requirements (often “notice pleading”) are usually not demanding; broad (and expensive) discovery is normal; there is a right to jury trial, and, in jury cases, judges cannot take their own views into account to decide cases based on who has stronger evidence; juries are often permitted to make very substantial damages awards for pain and suffering and sometimes to award punitive damages; and cases in state courts are likely to be before local judges who hold their jobs by election and may be beholden to their constituents.
Not surprisingly, non-U.S. defendants fear the American system. As a British judge put it nearly 40 years ago, “As a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune. . . . The plaintiff holds all the cards.” Equally unsurprisingly, the American rules on personal jurisdiction are very important to non-U.S. litigants, for if they can escape suit in the U.S. on jurisdictional grounds, none the fearsome features of U.S. litigation matter.
But until recently, personal jurisdiction limits in U.S. courts usually were pretty lax. Though the Supreme Court has on occasion recognized that litigating in another country’s judicial system was a considerable burden, the conventional attitude was that any defendant that “did business” in a state could be sued there, and if it did a considerable amount of business, it could be sued there on almost any claim, even if the plaintiff was not from that state and the claim had no particular connection to the state. The court could determine that allowing jurisdiction was not “reasonable,” but particularly if the plaintiff were local, the local elected judges might resist that conclusion.
In the last decade, that situation has changed markedly, and Professor Dodson very thoroughly presents that change. First, the Supreme Court has essentially limited the “doing business” idea for jurisdiction (now called “general jurisdiction”) to states in which corporate defendants were incorporated or have their headquarters. That essentially makes this ground for American jurisdiction unavailable for suits against non-U.S. companies. It also means that American jurisdictional doctrine now closely resembles the jurisdictional rules of the rest of the world.
The alternative to general jurisdiction is “specific jurisdiction,” which emphasizes the defendant’s decision to do business in the state (called “purposeful availment”). In at least one case, that meant a U.S. plaintiff injured in New Jersey could not sue a U.K. manufacturer in New Jersey when he was seriously injured on the job by a huge machine manufactured by the U.K. company. The company had marketed in the U.S., but had not specifically targeted the plaintiff’s state. Beyond that, in 2017, the Court also ruled that, even if a nonresident defendant can be sued in a given state by some local plaintiffs, other plaintiffs with similar claims but from other states could not join that suit unless their claims had a connection to the forum state, which Professor Dodson calls “pendent jurisdiction.”
The striking result of these recent jurisdictional trends is that non-U.S. jurisdictional rules may often be more plaintiff-friendly than is true of current doctrine in the U.S. Jurisdictional doctrine abroad does not turn on “purposeful availment,” and pendent jurisdiction is often possible abroad. Put differently, the internal rules of U.S. courts remain exceptionally plaintiff-friendly, but the American jurisdictional rules that control plaintiffs’ access to American courts are often more protective of defendants than non-U.S. jurisdictional rules.
American jurisdictional law remains divergent from most of the rest of the world in important ways, however. As Professor Dodson notes, “in other contexts, American personal jurisdiction remains stubbornly exceptional.” Probably the prime illustration of that is transient “tag” jurisdiction, another American practice that the rest of the world cannot accept. In addition, the willingness of American courts to enforce “choice of court” provisions in contracts without regard to whether there was true bargaining power (as in routine consumer transactions) diverges from the legal rules elsewhere.
So the challenges of American jurisdictional exceptionalism will not soon go away, but some of them have abated. Professor Dodson’s article will provide valuable guidance for years to come.