Two New Papers on Jurisdiction [SSRN]

Blog readers may be interested in two new SSRN posts on the topic of jurisdiction.

The first is an article by S.I. Strong (University of Missouri School of Law) entitled: “Jurisdictional Discovery in United States Federal Courts” , University of Missouri School of Law Legal Studies Research Paper No. 2009-26, which provides a detailed historical review of jurisdictional discovery—a uniquely American procedural device—and offers a valuable comparative law analysis of the differences between American and English standards for proof of jurisdictional facts. Here is the abstract:

Jurisdictional discovery ties together three principles central to federal civil procedure: the right to broad discovery, the need for liberal notice pleading and the court’s inherent power to determine its own jurisdiction. The device is also inextricably linked to complex constitutional and legislative policies regarding the jurisdictional reach of U.S. federal courts. The complicated and often hidden aspects of jurisdictional discovery make analysis difficult, and measures that may seem acceptable in theory turn out to be highly problematic in practice. Indeed, the concept of “limited jurisdictional discovery” has disappeared as plaintiffs request – and judges routinely permit – extensive and expensive discovery before defendants are even determined to be properly in front of the court.

The Article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the Article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes by outlining several judicial and legislative reforms that would improve the means by which U.S. federal courts establish jurisdiction.

Although jurisdictional discovery is occasionally discussed in limited, subject-specific contexts, the device has not been subject to a comprehensive, in-depth analysis since the 1970s, which means that this Article fills a major gap in the literature. Furthermore, the piece is particularly timely given several recent petitions for certiorari to resolve ambiguities and circuit splits in this area of law as well as recent Supreme Court precedents regarding pleadings standards and the absence of jurisdictional hierarchies. 

The second is a paper is by Helena Gluzman (University of Toronto): “On Universal Jurisdiction – Birth, Life and a Near-Death Experience?” in  LAW & GLOBALIZATION, Bocconi School of Law Student-Edited Papers, ed., VDM Publishing, 2009/Bocconi School of Law Student-Edited Papers, No. 2009-08/EN, where the author discusses the historical and academic debate between “conditional universal jurisdiction’ which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction, which does not, concluding that political and administrative costs appear to outweigh the benefits of universality.Here is the abstract:

This paper investigates the topic of universal jurisdiction, ie the supranational prosecution and repression – without the necessity of a link between the accused and the prosecuting state – of crimes of such gravity and magnitude as to collide with certain core values accepted by the international community and transcending the peculiarity of national interests. The focus of the chapter is exactly to try and discern the scope of universal jurisdiction, distinguishing between the two different versions of universality theorized by contemporary authors: ‘conditional universal jurisdiction,’ which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction’, according to which the accused does not have to be present in order to make the exercise of universal jurisdiction possible. As a matter of fact, only a handful of states currently possesses national legislation covering the exercise of ‘absolute universal jurisdiction’, as a confirmation that, notwithstanding the general scholarly consent in recognizing the existence of a universality principle, no agreement actually exists about this principle’s content. By means of an historical overview of the most noteworthy examples of implementation of universal jurisdiction, Helena Gluzman displays various arguments against it – e.g. its administrative costs, the local concern connected to its enforcement and the related risk of political manipulations, the criticalities related to the need of granting the accused a due process of law – showing the shortcomings of such jurisdiction with particular regard to its less well accepted form (the ‘absolute’ one), whose theoretical foundations seem to have been historically undermined by the Nuremberg and Eichmann experiences. Prominent exercises of absolute universal jurisdiction, however, also illustrate its practical pitfalls, as the associated political and administrative costs seem to widely outweigh the benefits of universality.

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