Personal Jurisdiction in a Global World: The Impact of the Supreme Court’s Decisions in Goodyear Dunlop Tires and Nicastro

In June 2011 the Supreme Court decided two momentous personal jurisdiction cases: one, Goodyear Dunlop Tires Operations v. Brown, limited general jurisdiction to its rightful narrow role as a way to establish state court jurisdiction, while the other, J. McIntyre Machinery, Ltd. v. Nicastro, barely staved off a second attempt to narrow “stream of commerce” as a vehicle for jurisdiction. Although both cases made those valuable contributions to doctrine, they also denied a United States court to U.S. citizens who sued foreign defendants for torts, effectively leaving the plaintiffs without remedies for the allegedly negligent acts of the defendants. Goodyear Dunlop Tires involved an accident outside the United States, while Nicastro arose from an injury in New Jersey. With globalization bringing increased international business and travel, there is sure to be a significant increase in injuries suffered by U.S. citizens as a result of the negligent activities of foreign businesses and a resultant increase in the type of litigation involved in the two new cases. This Article critiques both cases and then examines whether non-citizens are protected by constitutional personal jurisdiction rights. Outside the context of personal jurisdiction, the Supreme Court has held since the nineteenth century that the scope of constitutional protections varies depending on two factors: whether a party is a citizen of the United States or a foreign national and whether a non-citizen resides in the United States or abroad. Without any real consideration, the Supreme Court in Goodyear Dunlop Tires and Nicastro applied the same personal jurisdiction law to non-citizen, non-resident defendants as it applies to defendants who are U.S. citizens. This Article argues that non-resident, non-citizen defendants are not protected by the constitutional personal jurisdiction law developed in domestic litigation. Freed from constitutional constraints, the Supreme Court has the ability to fashion a new law of personal jurisdiction for foreign defendants better suited for the tort claims of U.S. citizens, taking into account the interests of the U.S. plaintiffs. The Article provides a foundation for developing a new law of personal jurisdiction for foreign defendants

The Alien Tort Statute from the Perspective of Federal Court Procedure

This Article will examine a number of procedural issues relevant to the Alien Tort Statute, focusing on what the Supreme Court has resolved and what remains open for future litigation. It will analyze the constitutional basis for the Statute and explain how the law of nations, as part of federal common law, established the decision rules for ATS litigation. Then it will examine the meaning of the territoriality limitation imposed by Kiobel in the context of the Court’s established practice of interpreting jurisdictional statutes narrowly. After looking at the relevance of recent changes in personal jurisdiction law for ATS suits, the Article will examine statutes of limitations and tolling rules, forum non conveniens, exhaustion of remedies, and comity. It will conclude with consideration of the issues that remain to be answered by future litigation under the Statute

Constitutional Limits on Price and Rent Control: The Lessons of Utility Regulation

The federal price control cases demonstrate that three factors play a predominant role in making the Hope doctrine inapplicable to particular types of price control: (1) the justification for the price regulation; (2) the duration of the regulation; and (3) the ability of a firm to withdraw from the regulated business. This Article initially explains the Supreme Court\u27s reliance on the three factors in upholding the constitutionality of federal price controls that did not meet the Hope standards. Part II examines the relationship between the ability to withdraw from a price-controlled business and the constitutional standards governing the price control. This Part considers how a firm decides whether to remain in a particular business and how non-legal barriers to exit affect that decision. The Part also examines the barriers that result from investment in specialized assets and analyzes recent price regulation cases in which courts examined the relevance of non-legal barriers to exit. Part II then examines the legal restrictions on exit from the rent-controlled residential leasing business, including the restrictions on demolition and condominium conversion, and concludes that rent control must satisfy the Hope doctrine because the legal restrictions comprise an effective barrier to exit. Finally, Part III applies the constitutional limits on utility ratemaking to determine the constitutionality of the typical standards used in rent control

Beyond Stamp Collecting: Ronald Coase and “Scientific” Legal Scholarship

This Essay argues that legal scholarship is properly considered a highly technical field of study rather than a system based on classifications. Drobak concedes that excellent legal scholarship requires a complex system of classifications akin to “stamp collecting.” Drobak then makes a case for legal research as a technical science requiring an interdisciplinary approach to confront new issues and further develop current legal doctrines

Law Matters

Neoclassical economic theory has attributed modem economic growth to a combination of factors: human capital (the amount and skill of labor), physical capital (machines, factories, agricultural improvements, etc.), natural resources, technology (human command over nature), and the stock of knowledge (the understanding of the natural environment). Over the past few decades, some economists have begun to emphasize the importance of one additional component: institutions. These are the rules of the game of a society. Institutions can be informal or formal. Informal institutions include such things as norms of behavior, cultural constraints, codes of conduct and business conventions. Some formal institutions are created by nongovernmental organizations-religious laws, corporate rules of self-governance and use restrictions imposed by residential groups are some examples. The most important formal institutions, however, are legal, such as constitutions, statutes, regulations and decisions of courts and agencies

Introduction: Law & The New Institutional Economics

The Articles in this symposium are examples of legal scholarship in the new institutional economics (“NIE”). The new institutional economics takes its name from institutions: the rules that structure the economic, political, and social interactions in a society. Institutions can be formal, such as law, or informal, such as social norms. The new institutionalists believe that economic performance cannot be understood without paying attention to institutions. Consequently, their scholarship examines a multitude of economic and political issues by focusing on institutions. Law in its various forms (constitutions, statutes, common law, contract terms, etc.) is the most important and prevalent type of formal institution, so the focus on institutions is often a focus on the law. To many new institutionalists legal issues are at the core of their scholarship, as this symposium will illustrate

Understanding Judicial Decision-Making: The Importance of Constraints on Non-Rational Deliberations

All of social science is based on the assumption that people act rationally, in a logical, unemotional fashion. This is true for all disciplines in social science, including both economics and law. Neoclassical price theory assumes that producers and consumers are rational actors, while the reasonable person in law is the rational cousin to the economic actor. New institutional economists were among the first scholars to examine economic issues by modifying rational choice theory. Today, a large and growing body of scholarship exhibits a willingness to modify the rationality assumption by using cognitive science, behavioral psychology, and experimental economics. This Essay shares that perspective. In the Essay, we reexamine the way judges make decisions by using contemporary theories from cognitive science and concepts from the new institutional economics

Rethinking Market Regulation: Helping Labor by Overcoming Economic Myths

This book presents a distinct perspective by challenging two key economic principles: that markets are competitive and the claim that corporations exist for the benefit of their shareholders, but not for other stakeholders. It also engages critically with government decisions to base intervention on economic principles, highlighting the resulting social and financial implications. Finally, it provides a comparison between the legal and social treatment of labor in the US and the EU, arguing for the adoption of measures taken in Europe