Jurisdiction Conflict Of Laws Outline

Jurisdiction/Conflict of Laws

1. Permissible Exercise of Jurisdiction (Can we exercise jurisdiction?)

   1. Connectors

      1. Territorial Principle: Jurisdiction based on where the act was done

         • "[T]he general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done." American Banana Co. v. United Fruit - pg. 838

           • "For another jurisdiction . . . to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations . . . ." American Banana Co. v. United Fruit - pg. 838

             • Although American Banana is no longer good law with respect to the exclusive potency of the territorial principle, it can still be used to support the existence of the territorial principle as a basis for a state's assertion of legislative, judicial, or executive jurisdiction.

         • Where an act occurs on a ship on the high seas, the act should be treated as if it had occurred upon the soil of the nation whose flag the ship is flying. See The Lotus Case - pg. 118

         • "It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." E.E.O.C. v. Arabian American Oil Co. - pg. 840

      2. Nationality Principle: Jurisdiction based on the nationality of the defendant

         • "The jurisdiction of the United States over its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them." Blackmer v. United States - pg. 842

         • "But, for the exercise of judicial jurisdiction in personam, there must be due process, which requires appropriate notice of the judicial action and an opportunity to be heard." Blackmer v. United States - pg. 842

           • "The mere giving of such notice to the citizen in the foreign country of the requirement of his government that he shall return is in no sense an invasion of any right of the foreign government, and the citizen has no standing to invoke any such supposed right." Blackmer v. United States - pg. 842

      3. Effects Principle: Jurisdiction based on conduct outside a nation's borders that has consequences within the borders of the nation asserting jurisdiction

         • "[I]t is settled . . . that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends; and these liabilities other states will ordinarily recognize." United States v. Aluminum Co. of America - pg. 845

           • Where agreements made beyond our borders are not intended to affect imports or exports, but do indeed affect them, such agreements are not covered by the Sherman Act and thus jurisdiction based upon the effects principle in such a situation would be improper. See United States v. Aluminum Co. of America - pg. 845

           • Where an agreement is intended to affect imports or exports, but is seems that there is no effect, there is a jurisdictional split. Blackmer v. United States - pg. 845

             • One approach is the "doctrine that intent may be a substitute for performance in the case of a contract made within the United States." Blackmer v. United States - pg. 845

             • Another approach is the "doctrine that a statute should not be interpreted to cover acts abroad which have no consequences here." Blackmer v. United States - pg. 845

               • Though the court in Blackmer does not decide the issue, the court assumes that "the [Sherman] Act does not cover agreements, even though intended to affect imports or exports, unless its performance is shown actually to have had some effect upon them." Blackmer v. United States - pg. 846

           • An agreement is unlawful, though made abroad, if it is intended to affect imports and did affect them. Blackmer v. United States - pg. 846

             • With respect to Anti-trust, Jurisdiction based upon the effects principle is permissible where (1) there was an agreement made abroad (2) that is intended to affect imports and (3) indeed affects imports. See Blackmer v. United States - pg. 846

         • "[A]n agreement to withdraw any substantial part of the supply from the market would, if carried out, have some effect upon prices, and [i]s as unlawful as an agreement expressly to fix prices." Blackmer v. United States - pg. 847

      4. Protective Principle: Jurisdiction based upon the protection of the security or the central interests of the state

         • The protective principle provides that a state has jurisdiction to prescribe law with respect to "certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests." United States v. Bin Laden

         • Conduct outside U.S. territory that threatens U.S. security as a state or the operation of governmental functions validates jurisdiction provided the conduct is generally recognized as a crime under the laws of states that have reasonably developed legal systems. United States v. Pizzarus - pg. 849

         • Think terrorism

      5. Universality Principle (Not a connector): Jurisdiction based off the idea that some offenses are so heinous that any state has the right to assert jurisdiction

         • Examples:

           • In Filartiga, the court held that "the torturer has become - like the pirate and the slave trader before him - hostis humani generis, an enemy of all mankind."

             • In Smith, the court noted that a pirate could be criminally tried pursuant to notions of universal law.

           • In Kadie, the court upheld jurisdiction for acts committed abroad that allegedly constituted genocide, war crimes, torture, and summary execution.

           • Maybe terrorism

      6. Passive-Personality Principle: Jurisdiction based upon the interest in protecting nationals abroad;...

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