Faculty Books

Aaron Simowitz, J.D. 2006, reviews Professor Bernard E. Harcourt’s most recent book, Language of the Gun: Youth, Crime, and Public Policy, in an interview with Professor Harcourt. The two discuss Harcourt’s methodology (interviews with juvenile inmates and correspondence analysis) and the conclusions that Harcourt draws from his analysis

The Extraterritoriality Formalisms

The extraterritorial application of U.S. law was a settled issue for a long time. For about sixty years, U.S. law would apply abroad if conduct occurred or effects were felt within U.S. borders. This potentially broad sweep of U.S. law was limited in several ways—most importantly by the doctrine of “reasonableness” grounded in international law and explicated in the Restatement (Third) of Foreign Relations Law of the United States. This approach had its detractors. In 2010, the U.S. Supreme Court joined the ranks of the critics in dramatic fashion. The Court cast aside the previous sixty years of jurisprudence—dismissing it as uninhibited “judicial lawmaking”—and created a new test. This new approach proceeded in two parts. A court should ask whether the “presumption against extraterritoriality”—a sometimes cited, but oft ignored concept— was rebutted by a “clear indication” in the text or “context” of the statute. If not, a court should then inquire whether the particular case presents a “domestic application” of the statute. But merely “some domestic activity” would not constitute a domestic application of the statute. Rather, the court must define the “objects of the statute’s solicitude” and then determine whether that “focus” is within U.S. borders. The Court presented this revolution as more predictable, less complex, and more deferential to the legislature. In reality, the Court traded the venerable uncertainties of the conduct-and-effects test for the new, poorly understood, and unanticipated uncertainties of the “Morrison two-step.” Many commentators have attempted to make sense of Morrison’s first step—the reinvigorated presumption against extraterritoriality. But relatively few have examined Morrison’s second step—the question of what it means for a statute to apply domestically in the context of a transnational dispute. In fact, this second question—which the Morrison opinion treats practically as a throw-away line—has caused far more divergence and confusion among the lower courts. It has become a distorted reflection of the extraterritoriality inquiry: the same consequences, but with irrelevant facts or formalisms looming large in the picture. This article attempts to lay out both the current myths and mistakes of the so-called “focus test” and to chart a sensible path forward

Nonparty Jurisdiction

The Supreme Court\u27s recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must have personal jurisdiction over a person in order to obtain preliminary relief, and a court must have jurisdiction, either personal jurisdiction or attachment jurisdiction, in order to recognize and enforce a foreign country judgment or arbitral award. In the development of its jurisdictional jurisprudence, the Supreme Court has never paused to consider the implications of its decisions on these other applications of personal jurisdiction. This Article attempts to chart a path by examining these other forms of personal jurisdiction that arise, often in connection with the assertion of jurisdiction over a nonparty to the initial litigation. This Article presents a coherent approach to the power of courts over nonparties that is consistent with the prevailing constitutional doctrine on personal jurisdiction developed in the context of traditional plenary claims. This Article offers a comprehensive consideration of how courts should approach the question of their authority over nonparties-a theory of nonparty or discovery jurisdiction that fits comfortably with the Court\u27s present jurisprudence

Transactional Enforcement Discovery

Joseph Stiglitz described the current Argentine sovereign debt crisis as “America throwing a bomb into the global economic system.” And yet, the U.S. Supreme Court decided to tackle only one head of this massive hydra. Presented with numerous issues arising from the controversy, the Court granted certiorari only on the issue of whether the Foreign Sovereign Immunities Act (FSIA) blocked Argentina’s creditors from obtaining discovery of Argentina’s worldwide financial transactions. Justice Scalia, writing for the Court, concluded that because the FSIA says nothing on its face about discovery—it says nothing about discovery. But the majority did not grapple with the worldwide nature of the discovery granted. It assumed, without deciding, that worldwide discovery in aid of enforcement of a judgment is usually appropriate. This prompted Justice Ginsburg to dissent. Justice Ginsburg wrote that U.S. courts should not assume that the “sky may be the limit” for post-judgment discovery, especially given that other countries typically have far more limited document production. For Justice Ginsburg, discovery in aid of enforcement of a judgment is presumptively about U.S. courts looking to U.S. law about assets in the United States. The split in the Court reflects deep confusion and disagreement among U.S. courts on the role of discovery in an era of worldwide hunts for assets to satisfy unpaid judgments and arbitral awards. Courts have struggled to define the limits of worldwide enforcement discovery for one overriding reason: U.S. courts—following the Supreme Court’s lead—have applied tests and concepts developed for pretrial discovery to the very different world of post-judgment enforcement discovery. Post-judgment enforcement discovery differs in its purposes, its presumptions, and its problems. This Article grapples with each and proposes new approaches to tackling two obstacles to enforcement discovery—restrictions on discovery and on execution

Faculty Books

Aaron Simowitz, J.D. 2006, reviews Professor Bernard E. Harcourt’s most recent book, Language of the Gun: Youth, Crime, and Public Policy, in an interview with Professor Harcourt. The two discuss Harcourt’s methodology (interviews with juvenile inmates and correspondence analysis) and the conclusions that Harcourt draws from his analysis