Document Type

Article

Publication Title

University of Chicago Legal Forum

Abstract

Properly understood and applied, the idea of consent does not supply a panacea for the law of jurisdiction any more than it does in the law of contracts. All concepts are blurry at the edges, and it seems instructive that the inevitable ambiguities in the law of jurisdiction become most acute just where the traditional notions of consent start to give way-that is, as we move from consensual arrangements to disputes between strangers, especially with international transactions. But difficulties at the margins are not the same as decisive objections to the whole project, unless and until the critic can come up with an alternative that performs better across the full range of cases. In this context, no single legal device, and no set of legal devices taken together, will solve all problems so long as international business and occurrences do not occur under the umbrella of a single sovereign. What is needed, but not easily found, is a resolution of conflicts through cooperation among states whose long-term interests align at best only imperfectly with each other. In these cases, there will be a clash of wills and a conscious effort to tilt the process in favor of one's own nation. So in the international arena, we should expect the worst, and often we will find it. But there is little that one can do to remedy by way of legal reform because the political obstacles loom so large. So I shall begin with the things that we can control and then talk about those which we cannot. More concretely, I start with general jurisdiction in contractual contexts and move on from there to discuss both tort and criminal law. To set the stage, I shall first summarize what I regard as the appropriate mode of analysis. The problems of jurisdiction cannot be analyzed in any sort of a vacuum but require the use of terminology that is familiar throughout the law. Jurisdiction is thus said to rest on multiple grounds: on consent, benefits conferred or received, presence, activities within the jurisdiction, causal connection between the conduct of the defendant to be charged and the adverse consequences to a plaintiff who resides in or who was hurt inside the forum state. All this terminological profusion is well enough and good because it reminds us that many of the terms used to analyze disputes over jurisdiction are drawn from the library of terms used to analyze substantive private law. That conclusion is critical because it allows us to link up the study of civil procedure with these substantive principles.

First Page

1

Volume

2001

Publication Date

2001

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