The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction
This article by Kevin Clermont grows out of a presentation at the EU-U.S. policy conference in May 2004 at the University of Pittsburgh. It was published in CILE Studies, vol. 2.
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 European 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 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. 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.
Date of Authorship for this Version
Clermont, Kevin M., "The Role of Private International Law in the United States: Beating the Not-Quite-Dead Horse of Jurisdiction" (2004). Cornell Law Faculty Publications. 14.