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Publication Title

Washington University Law Review

Abstract

In June 2011 the Supreme Court decided two momentous personal jurisdiction cases: one, Goodyear Dunlop Tires Operations v. Brown, limited general jurisdiction to its rightful narrow role as a way to establish state court jurisdiction, while the other, J. McIntyre Machinery, Ltd. v. Nicastro, barely staved off a second attempt to narrow “stream of commerce” as a vehicle for jurisdiction. Although both cases made those valuable contributions to doctrine, they also denied a United States court to U.S. citizens who sued foreign defendants for torts, effectively leaving the plaintiffs without remedies for the allegedly negligent acts of the defendants. Goodyear Dunlop Tires involved an accident outside the United States, while Nicastro arose from an injury in New Jersey. With globalization bringing increased international business and travel, there is sure to be a significant increase in injuries suffered by U.S. citizens as a result of the negligent activities of foreign businesses and a resultant increase in the type of litigation involved in the two new cases. This Article critiques both cases and then examines whether non-citizens are protected by constitutional personal jurisdiction rights. Outside the context of personal jurisdiction, the Supreme Court has held since the nineteenth century that the scope of constitutional protections varies depending on two factors: whether a party is a citizen of the United States or a foreign national and whether a non-citizen resides in the United States or abroad. Without any real consideration, the Supreme Court in Goodyear Dunlop Tires and Nicastro applied the same personal jurisdiction law to non-citizen, non-resident defendants as it applies to defendants who are U.S. citizens. This Article argues that non-resident, non-citizen defendants are not protected by the constitutional personal jurisdiction law developed in domestic litigation. Freed from constitutional constraints, the Supreme Court has the ability to fashion a new law of personal jurisdiction for foreign defendants better suited for the tort claims of U.S. citizens, taking into account the interests of the U.S. plaintiffs. The Article provides a foundation for developing a new law of personal jurisdiction for foreign defendants.

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