Jurisdiction in Tort - Chapter 2.5.3 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
2.5.3. Jurisdiction in Tort
In this section we take a closer look at the exercise of juridical jurisdiction by American courts in cases where the underlying claim is primarily delictual (non-contractual) in nature. American lawyers and judges often refer to the substance of such delictual claims as cases “sounding in tort”.
The fundamental jurisdictional issues presented in these tort cases correspond to those which apply in cases involving a contractual element,180 in that the American jurisdictional inquiry often requires a two-step analysis: (1) interpretation of the applicable long-arm statute and (2) application of the Due Process test.181
In tort cases where the relevant long-arm statute is worded (or at least interpreted) elastically, so that the reach of long-arm extends as far as the U.S. Constitution permits, however, the jurisdictional inquiry is effectively reduced to a single (constitutional) test. Such elastic statutes apply in approximately half of the 50 States. California, as we have seen, is a prominent example of a State with a blatantly elastic long-arm;182 we have also seen the equally elastic effect which the Texas Supreme Court has given to the (seemingly specific) long-arm enacted by the legislature in that State.183
Since the constitutional aspect of the jurisdictional inquiry is always relevant (i.e. regardless of the State concerned), it is important to reemphasize that the Due Process analysis itself requires the application of a two-pronged test, including separate consideration of: (a) purposeful availment leading to minimum contacts, and (b) reasonableness.
CHAPTER 2 EXTRATERRITORIAL JURISDICTION
2.5.3 Jurisdiction in TortAsahi Metal v. Superior Court of California (1987) Notes, Questions & Commentary