《法学资料集》（英文版） The role of private international law in the united states

CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES The role of private international law in the united states Beating the Not-Quite-Dead Horse of jurisdiction Kevin m. clermont Cornell law School Myron taylor hall Ithaca.NY14853-4901 Cornell Law School research paper No. 04-023 This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection srn. com/abstract

CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction Kevin M. Clermont Cornell Law School Myron Taylor Hall Ithaca, NY 14853-4901 Cornell Law School research paper No. 04-023 This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=588321

09/04/04 The role of private international law in the united states Beating the not-Quite-Dead Horse of jurisdiction Kevin m clermont Territorial authority to adjudicate is the preeminent component of private international law. Empiricalresearch proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from European law. None of the usual assertions holds up as an unbridgeable difference, including that()the peculiar U. S jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2)U.. law differs because its legal institutions have managed to constitutionalize jurisdiction; (3)it is the same old story of common-law courts playing too active a part in the development of the law in the United States;(4)the United States has resolved the fundamental jurisprudential tension between certainty and precision in a way that maximizes the role of fact-specific inquiry; and (5)those activist courts are ironically too willing to decline the jurisdiction bestowed on them by the legislature. Indeed, with minor legislative reforms to give the U.s. law somewhat greater certainty and restraint, the distance to Europe would shrink even further risdiction could thus be the fulcrum for rearranging the international judicial order. Despite the difficulties recently encountered in the Hague negotiations, the international community should immediately begin to take the series f small steps necessary to prepare the way for achieving the long- run goal of a multilateral convention that harmonizes jurisdictional law Introduction I Preeminence of jurisdiction in u.s. private international law Il. Importance of Jurisdiction in Practice and Theory 5 A. Forum Really Affects Outcome B. Jurisdictional harmonization remains desirable C Nonjurisdictional H harmonization Remains Unlikely III. Transatlantic Differences on jurisdictio Summarizing U.S. Law 1. Power 2. Unreasonableness and self-Restraint B. Searching for Essential Differences 1. Origin in Power 2. Effect of Constitutionalization 21 3. Primacy of judi 4. Absence of rules 5. Role of dise 24 C. Recasting U.S. Law 1. Constitutional Limit Flanagan Professor of Law, Cornell University

* Flanagan Professor of Law, Cornell University. 09/04/04 The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction Kevin M. Clermont* Territorial authority to adjudicate is the preeminent component of private international law. Empirical research proves that forum really affects outcome, probably by multiple influences. This practical effect makes international harmonization of jurisdictional law highly desirable. Although harmonization of nonjurisdictional law remains quite unlikely, jurisdictional harmonization is increasingly feasible because, among other reasons, U.S. jurisdictional law in fact exhibits no essential differences from Europe an law. None of the usual assertions holds up as an unbridgeable difference, including that (1) the peculiar U.S. jurisdictional law flows inevitably from a different theory of governmental authority, one that rests on power notions; (2) U.S. law differs because its legal institutions have managed to constitutionalize jurisdic tion; (3) it is the same old story of common-law courts playing too active a part in the development of the law in the United States; (4) the United States has resolved the fundamental jurisprudential tension between certainty and precision in a way that maximizes the role of fact-specific inquiry; and (5) those activist courts are ironically too willing to decline the jurisdiction bestowed on them by the legislature. Indeed, with minor legislative reforms to give the U.S. law somewhat greater certainty and restraint, the distance to Europe would shrink even further. Jurisdiction could thus be the fulcrum for rearranging the international judicial order. Despite the difficulties recently encountered in the Hague negotiations, the international community should immediately begin to take the series of small steps necessary to prepare the way for achieving the long-run goal of a multilateral convention that harmonizes jurisdictional law. Introduction ................. ................. ................. ................. ............ 2 I. Preeminence of Jurisdiction in U.S. Private International Law ................. ................. ...... 3 II. Importance of Jurisdiction in Practice and Theory ................. ................. .............. 5 A. Forum Really Affects Outcome ................. ................. ................. ..... 5 B. Jurisdictional Harmonization Remains Desirable ................. ................. ........ 8 C. Nonjurisdictional Harmonization Remains Unlikely ................. ................. ..... 10 III. Transatlantic Differences on Jurisdiction ................. ................. ................. . . 14 A. Summarizing U.S. Law ................. ................. ................. .......... 14 1. Power ................. ................. ................. ................. 15 2. Unreasonableness and Self-Restraint ................. ................. .......... 17 B. Searching for Essential Differences ................. ................. ................. . 18 1. Origin in Power ................. ................. ................. ......... 19 2. Effect of Constitutionalization ................. ................. ............... 21 3. Primacy of Judiciary ................. ................. ................. ..... 22 4. Absence of Rules ................. ................. ................. ........ 23 5. Role of Discretion ................. ................. ................. ....... 24 C. Recasting U.S. Law ................. ................. ................. ............. 25 1. Constitutional Limit ................. ................. ................. ...... 25 2. Subconstitutional Limits ................. ................. ................. . . 28 Conclusion ................. ................. ................. ................. ............ 30

INTRODUCTION The materials announcing this conference struck fear in my heart, doing so by calling for the cooperative development of private international law and international private law. This sound innocuous enough, even desirable. And i know what they meant, I think. But all I could think of was a course that I took in law school entitled Comparative Conflict ofLaws. We spent literally the first six weeks of the thirteen-week course on the distinction between private international law and international private law, only to conclude that there was no difference Building on that solid intellectual foundation, I can report that the more common of the two terms--private international law-arose first in the United States"(although today it is little used here, having been driven back by the older term"conflict of laws). "Private international law emigrated to France within a decade, and then the term spread fast through the nineteenth-centur mindset. Today we understand that private international law is neither truly international nor exclusively private, but is instead a branch of domestic law treating legal situations with nondomestic elements that pose a conflict of sovereign authority. Its precise scope varies from country to country. In Germany, the subject tends to be narrow, focusing on choice of law. In the United States, it covers choice of law, but also reaches territorial authority to adjudicate and the treatment of foreign judgments. In France, private international law extends even further to matters of nationality and the legal status of foreigners. As I still have my old class notes, and as articles exist with titles like"What Is Private International Law?, I could rehearse the past battles of definition(or could argue the possible superiority of alternative terms). But ultimately: " It is a matter of convenience whether a broad or a narrow definition of private international law is adopted. 0 the ni.The course was taught in the fall of 1970 at Harvard Law School by Professor Rodolfo de Nova, vising from ty of Pavia JOSEPH STORY, COMM ENTARIES ON THE CONFLICT OF LAWS$9(Boston, Hilliard, Gray Co. 1834) See CLAIRE M. GERMAIN, GERMAINS TRANSNA TIONAL LA W RESEARCH$ 1.01.2(1991) "FOELIX TRAITE DU DROIT INTERNATIONAL PRIVE OU DU CONFLIT DES LOIS DE DIFFERENTES NATIONS EN MATIERE DE DROIT PRIVE (Paris, Joubert 1843). SSee Gerhard Kegel, Introduction: Private International Law, 3 INT'L ENCY. COMP. L. 1-1, 1-3(1986) at1-1 7See WIlliamm. richman w L. REY UNDERSTANDING CONFLICT OF LAWSS 1, at 1(3d ed 2002)("Conflicts, like Caesars Gaul, is generally said to be divided into three parts: jurisdiction, choice of law, and judgments. ) DAVID D. SIEGEL, CONFLICTS IN A NUTSHELL 3(2d ed 1994) See BERNARd AUDIT, DRoit INTERNATIONAL PRIVE 1-19(3d ed 2000) lim w.E. Beckett, What Is Private International Law?, 7 BRIT Y.B. INT'L L. 73, 94(1926)(arguing for strictly e subject to jurisdiction and choice of law) kEgel, supra note 5, at 1-2. But see Beckett, supra note 9, at 95(arguing that definition has consequences)

2 1The course was taught in the fall of 1970 at Harvard Law School by Professor Rodolfo de Nova, vising from the University of Pavia. 2 JOSEPH STORY, COMM ENTARIES ON THE CONFLICT OF LAWS § 9 (Boston, Hilliard, Gray & Co. 1834). 3 See CLAIRE M. GER MAIN , GER MAIN ’S TRANSNATION AL LAW RESEARCH § 1.01.2 (1991). 4 FOELIX, TRAITÉ DU DR OIT INTERN ATIONAL PRIVÉ, OU DU CONFLIT DES LOIS DE DIFFÉRENTES NATIONS EN MATIÈRE DE DROIT PRIVÉ (Paris, Joubert 1843). 5 See Gerhard Kegel, Introduction: Private International Law, 3 INT’L ENCY. COMP. L. 1-1, 1-3 (1986). 6 See id. at 1-1. 7 See WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS, UNDERSTANDING CONFLICT OF LAWS § 1, at 1 (3d ed. 2002) (“Conflicts, like Caesar’s Gaul, is generally said to be divided into three parts: jurisdiction, choice of law, and judgments.”); DAVID D. SIEGEL, CONFLICTS IN A NUTSHELL § 3 (2d ed. 1994). 8 See BERNARD AUDIT, DROIT INTERNATIONAL PRIVÉ 1-19 (3d ed. 2000). 9W.E. Beckett, What Is Private International Law?, 7 BRIT. Y.B. INT’L L. 73, 94 (1926) (arguing for strictly limiting the subject to jurisdiction and choice of law). 10Kegel, supra note 5, at 1-2. But see Beckett, supra note 9, at 95 (arguing that definition has consequences). INTRODUCTION The materials announcing this conference struck fear in my heart, doing so by calling for the “cooperative development of private international law and international private law.” This sounds innocuous enough, even desirable. And I know what they meant, I think. But all I could think of was a course that I took in law school entitled Comparative Conflict of Laws.1 We spent literally the first six weeks of the thirteen-week course on the distinction between private international law and international private law, only to conclude that there was no difference! Building on that solid intellectual foundation, I can report that the more common of the two terms—private international law—arose first in the United States2 (although today it is little used here, having been driven back by the older term “conflict of laws”3 ). “Private international law” emigrated to France within a decade,4 and then the term spread fast through the nineteenth-century mindset.5 Today we understand that private international law is neither truly international nor exclusively private, but is instead a branch of domestic law treating legal situations with nondomestic elements that pose a conflict of sovereign authority. Its precise scope varies from country to country. In Germany, the subject tends to be narrow, focusing on choice of law.6 In the United States, it covers choice of law, but also reaches territorial authority to adjudicate and the treatment of foreign judgments.7 In France, private international law extends even further to matters of nationality and the legal status of foreigners.8 As I still have my old class notes, and as articles exist with titles like “What Is Private International Law?,”9 I could rehearse the past battles of definition (or could argue the possible superiority of alternative terms). But ultimately: “It is a matter of convenience whether a broad or a narrow definition of private international law is adopted.”10

In this conference, with its focus on article 65 of the Treaty Establishing the European Community, it seems to me that a convenient definition would include jurisdiction, choice of law, ind judgments but would also extend into international civil procedure far enough to pick up judicial cooperation on matters such as service and evidence I PREEMINENCE OF JURISDICTION IN U.S. PRIVATE INTERNATIONAL LAW Given this broad definition of private international law, and given the federal structure of the United States, it is safe to say that private international law, by whatever name, has huge importance in the United States. That fact explains why jurisdiction above all typically occupies(although usually with an appended study of res judicata )the most substantial part of the major first-year law course on civil procedure. Also, the U.S. situation incidentally helps to explain why the typical upperclass course on conflicts of law, which mostly emphasizes choice of law, ignores international cases in favor of interstate cases. Outside the academy, lawyers in the United States expend significant time, energy, and other resources on the process of forum selection. They know that the "name of the game is II Article 65, effective in 1999, pro vides Measures in the field of judicial co-operation in civil matters having cross-border implications, to be ken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, hall include (a) improving and simplifying the system for cross-border service of judicial and extrajudicial documents co-operation in the taking of evidence, the reco gnition and enforcement of decisions in civil and commercial cases, including ecisions in extrajudicial cases; promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction liminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States I ENCYCLOPEDIA OF EUROPEAN UNION LAW 3-0074(Neville March Hunnings gen ed, 2003); see Michael Wilderspin New Possibilities for Cooperation with the European Union-The Transfer of Competence for Judicial Cooperation from Member States to Community Institutions: The Foundations and the Implementation of the Transferof Competence in the Area of Judicial Cooperation in Civil Matters to the Community Institutions, 21 J.L. CoM. 181(2002)(nicely ronicling the communitarization of private international law ) See Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation LAW CoNTEMP PROBS., Summer 1994, at 103, 127-35(treating judicial cooperation See generally roBert C CASAD KEvin M. Clermont, REs JUDICATA: A HANDBOOK ON ITS THEORY, DOCTRINE, AND PRACTICE(2001) IAt Cornell Law School, jurisdiction and judgments occupy one-halfof the six-credit course in civil procedur which equals the biggest course in the curriculum See, e. g, RICHMAN REYNOLDS, supra note 7,81: EUGENE F SCOLES, PETER HAY, PATRICK J BORCHERS sYMEon C SYmEoniDEs, CoNFLICT OF LAWs$ 1.3(3d ed 2000)

3 11Article 65, effective in 1999, provides: Measures in the field of judicial co-operation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, shall include: (a) improving and simplifying: – the system for cross-border service of judicial and extrajudicial documents, – co-operation in the taking of evidence, – the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases; (b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction; (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States. 1 ENCYCLOPEDIA OF EUROPEAN UNION LAW 3-0074 (Neville March Hunnings gen. ed., 2003); see Michael Wilderspin, New Possibilities for Cooperation with the European Union—The Transfer of Competence for Judicial Cooperation from Member States to Community Institutions: The Foundations and the Implementation of the Transfer of Competence in the Area of Judicial Cooperation in Civil Matters to the Community Institutions, 21 J.L. & COM. 181 (2002) (nicely chronicling the communitarization of private international law). 12See Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation, LAW & CONTEMP. PROBS., Summer 1994, at 103, 127-35 (treating judicial cooperation). 13See generally ROBERT C. CASAD & KEVIN M. CLERMONT, RES JUDICATA: A HANDBOOK ON ITS THEORY, DOCTRINE, AND PRACTICE (2001). 14At Cornell Law School, jurisdiction and judgments occupy one-half of the six-credit course in civil procedure, which equals the biggest course in the curriculum. 15See, e.g., RICHMAN & REYNOLDS, supra note 7, § 1; EUGENE F. SCOLES, PETER HAY, PATRICK J. BORCHERS & SYMEON C. SYMEO NIDES, CONFLICT OF LAWS § 1.3 (3d ed. 2000). In this conference, with its focus on article 65 of the Treaty Establishing the European Community,11 it seems to me that a convenient definition would include jurisdiction, choice of law, and judgments but would also extend into international civil procedure far enough to pick up judicial cooperation on matters such as service and evidence.12 I. PREEMINENCE OF JURISDICTION IN U.S. PRIVATE INTERNATIONAL LAW Given this broad definition of private international law, and given the federal structure of the United States, it is safe to say that private international law, by whatever name, has huge importance in the United States. That fact explains why jurisdiction above all typically occupies (although usually with an appended study of res judicata13) the most substantial part of the major first-year law course on civil procedure.14 Also, the U.S. situation incidentally helps to explain why the typical upperclass course on conflicts of law, which mostly emphasizes choice of law, ignores international cases in favor of interstate cases.15 Outside the academy, lawyers in the United States expend significant time, energy, and other resources on the process of forum selection. They know that the “name of the game is

forum-shopping. Few cases reach trial in the U.S. civil litigation system today, after perhaps some initial skirmishing, most cases settle. Yet all cases entail forum selection, be it selection of local venue, interstate shopping, state/federal selection, or international shopping. First, consider the individual case. The plaintiff s opening moves include shopping for the most favorable forum. Then, the defendants parries and thrusts might include some forum-shopping in return, possibly by a motion for transfer of venue. forum is worth fighting over because outcome often turns on forum as i shall document below When the dust settles. the case does too but on terms that reflect the results of the skirmishing. Thus, the fight over forum can be the critical dispute in the case. Second cumulate these tendencies systemically. Forum selection is very important not only to the litigator, but also to the office lawyer who is drafting contracts with an eye toward possible future litigation Itire treatises devoted to the subje ce in litigation frequently dispute forum. Courts deal with nearly as many transfer-of-venue motions as trials Forum selection is a critical concern of the legal system as a whole Accordingly, the U.s. Supreme Courts decisions exhibit the same emphases: jurisdiction comes first in importance, and then recognition and enforcement ofjudgments follow in an orderly fashion, with choice of law entering the Courts mind only as an afterthought. This pattern prompted Linda Silbermans oft-quoted quip ridiculing the Court 's obsessive concern with jurisdictional limits in contrast to its neglect of critical questions such as limits on choice oflaw: she said that the Courts focus reflects a belief "that an accused is more concerned with where he will be hanged than whether International experience is not very different from our internal experience. The history of procedural treaty-making in pre-Community Europe had shown an emphasis on jurisdiction, judgments, and judicial cooperation, rather than on any general harmonization of choice of law or civil procedure. Moreover, in the recent attempts to forge a multilateral judgments convention at The Hague, the intense disputes between Europe and the United States focused almost entirely on Kevin M. Clermont Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 CORNELL L.REV 1507, 1508(1995)[hereinafter Forum-Shopping]. Compare J Skelley Wright, The Federal Courts and the Nature and Quality of State Law, 13 WAYNE L REv. 317, 333(1967)(deploring that forum-shopping has become"a national legal pastime"), with Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REv. 553(1989) (stressing benefits of forum-shopping), and Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 NEB. L REv. 79(1999) See David w. Robertson Paula K. Speck, Access Courts in Transnational Personal Injury Cases. Forum Non Conveniens and Antisuit Injunctions, 68 TEX L. REy 938(1990)(The battle over where the litigation occurs is typically the hardest fought and most important issue in a transnational case I ROBERT CCASAD, JURISDICTION AND FOR UM SELECTION(2ded. 1999); ANDREW S BELL, FORUM SHOPPING AND VENUE IN TRANSNA TION AL LITIGATION(2003) See Forum-Shopping, supra note 16, at 1509& n3 2 Linda J Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y. U L. REV. 33, 88(1978) 2ISee SamUEL P. BAUMGARtNER. THE PROPOSED HAGUE CONVENTION ON JURISDICTION AND FoREIGN JUDGMENTS 47-67(2003)

4 16Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 COR NELL L. REV. 1507, 1508 (1995) [hereinafter Forum-Shopping]. Compare J. Skelley Wright, The Federal Courts and the Nature and Quality of State Law, 13 WAYNE L. REV. 317, 333 (1967) (deploring that forum-shopping has become “a national legal pastime”), with Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REV. 553 (1989) (stressing benefits of forum-shopping), and Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue, 78 NEB. L. REV. 79 (1999). 17See David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 TEX. L. REV. 937, 938 (1990) (“The battle over where the litigation occurs is typically the hardest fought and most important issue in a transnational case . . . .”). 18ROBERT C. CASAD,JURISDICTION AND FORUM SELECTION (2d ed. 1999); ANDREW S. BELL, FORUM SHOPPING AND VENUE IN TRANSNATION AL LITIGATION (2003). 19See Forum-Shopping, supra note 16, at 1509 & n.3. 20Linda J. Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L. REV. 33, 88 (1978). 21See SAM UEL P. BAUMGARTNER, THE PROPOSED HAGUE CONVENTION ON JURISDICTION AND FOREIGN JUDGM ENTS 47-67 (2003). forum-shopping.”16 Few cases reach trial in the U.S. civil litigation system today; after perhaps some initial skirmishing, most cases settle. Yet all cases entail forum selection, be it selection of local venue, interstate shopping, state/federal selection, or international shopping. First, consider the individual case. The plaintiff’s opening moves include shopping for the most favorable forum. Then, the defendant’s parries and thrusts might include some forum-shopping in return, possibly by a motion for transfer of venue. Forum is worth fighting over because outcome often turns on forum, as I shall document below. When the dust settles, the case does too—but on terms that reflect the results of the skirmishing. Thus, the fight over forum can be the critical dispute in the case.17 Second, cumulate these tendencies systemically. Forum selection is very important not only to the litigator, but also to the office lawyer who is drafting contracts with an eye toward possible future litigation. Not surprising, then, there exist entire treatises devoted to the subject.18 Once in litigation, the parties frequently dispute forum. Courts deal with nearly as many transfer-of-venue motions as trials.19 Forum selection is a critical concern of the legal system as a whole. Accordingly, the U.S. Supreme Court’s decisions exhibit the same emphases: jurisdiction comes first in importance, and then recognition and enforcement of judgments follow in an orderly fashion, with choice of law entering the Court’s mind only as an afterthought. This pattern prompted Linda Silberman’s oft-quoted quip ridiculing theCourt’s obsessive concernwith jurisdictional limits, in contrast to its neglect of critical questions such as limits on choice of law: she said that the Court’s focus reflects a belief “that an accused is more concerned with where he will be hanged than whether.”20 International experience is not very different from our internal experience. The history of procedural treaty-making in pre-Community Europe had shown an emphasis on jurisdiction, judgments, and judicial cooperation, rather than on any general harmonization of choice of law or civil procedure.21 Moreover, in the recent attempts to forge a multilateral judgments convention at The Hague, the intense disputes between Europe and the United States focused almost entirely on