It took the Supreme Court 100 years to officially bury Pennoyer v. Neff, its landmark ruling on jurisdiction that took on cult status (or became a “hazing ritual,” according to one commenter online) for generations of law students. As a young law professor, Linda Silberman commemorated the moment in a 1978 article in the NYU Law Review, proclaiming “the end of an era.”1
Fast forward nearly four decades to 2014 and the Supreme Court’s latest ruling on jurisdiction, Daimler AG v. Bauman. It prompted Silberman, now Martin Lipton Professor of Law, to write an article she is calling, “The End of Another Era: Reflections on Daimler and Its Implications for Judicial Jurisdiction in the United States,” forthcoming in the Lewis & Clark Law Review. “These dramatic jurisdictional changes,” Silberman observes, have “bracketed my career.” Those who regard the arcane topic as challenging may take comfort in Silberman’s assessment that the Supreme Court has contributed to the chaos. She has criticized a number of its decisions and adds, “even when the result is right, the rationales and approaches are often wrong.”
As every first-year law student learns, a plaintiff can sue a defendant only where a court has jurisdiction. Constitutional concepts of due process provide the outer limitations on jurisdiction and purport to balance fairness to defendants, access to justice for plaintiffs, competing state interests, and concerns about forum shopping. Under the concept of general jurisdiction, a plaintiff can bring claims that are unrelated to the defendant’s activity in the forum. Prior to Daimler (and Goodyear Dunlop Tires v. Brown, a 2011 ruling), that meant a national or multinational company was potentially suable in every state in which it did substantial and extensive business. But in Daimler, the Court rejected an effort by Argentine plaintiffs to sue the German company in California for alleged human rights violations committed in Argentina by its Argentine subsidiary. For general jurisdiction, the Court held, a corporation may be sued only “at home,” which it defined as its place of incorporation or principal place of business.
Although Silberman had consistently criticized traditional general jurisdiction case law for its lack of predictable standards, she argues in “End of Another Era” that the Court went too far in Daimler. That’s because in recent rulings the justices have also narrowed opportunities for plaintiffs to sue even in forums where the alleged wrongs do take place (specific jurisdiction). She points to a 2011 decision holding that a New Jersey employee injured by a machine in New Jersey could not sue the machine’s English manufacturer, even though the manufacturer’s distributor had sold that very machine to the employer in New Jersey.
In light of several post-Daimler decisions in the lower courts, Silberman also worries that the Supreme Court overlooked the potential impact of Daimler on actions to enforce foreign-country judgments and arbitral awards. She and Aaron Simowitz, an NYU Law research fellow and former Lawyering professor, examine that issue in another forthcoming article2, for the NYU Law Review.
Silberman started her career as a civil procedure and conflict of laws professor, but then broadened her focus. Transnational litigation, international arbitration, and international child abduction became significant areas of expertise. She served as American Law Institute (ALI) co-reporter for a project on recognition and enforcement of judgments, and she is presently an adviser on three new ALI Restatement projects: International Commercial Arbitration, Foreign Relations Law, and Conflict of Laws. “All of these issues are in some sense interrelated,” she notes, “so it’s been a very rich field for me.”
Silberman has been invited to give the general course in private international law at the Hague Academy of International Law in the summer of 2020. A possible theme for those lectures is what she calls the “counterrevolution” taking place in private international law in the United States that is prompting development of more rule-based approaches to choice of law and jurisdiction. “I’ve always been on the side of presumptive rules and wanting more clarity and certainty,” she says, “rather than some of the existing open-ended approaches.”
1Shaffer v. Heitner: The End of an Era, NYU Law Review (1978)
2 Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought? (forthcoming in the NYU Law Review)
Posted October 26, 2015