The U.S. Supreme Court and the Modern Common Law Approach

This book studies the U.S. Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's modern approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, an approach that often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules and treats these principles and rules as premises for developing consistent unitary theories to meet current social conditions. This model requires that judicial opinions be informed by a wide range of considerations, beginning with established legal standards - but also including the insights derived from deductive and inductive reasoning, the lessons learned from history and custom - and ending with an examination of the social and economic consequences of the decision. Under this model, the considerations taken to reach a specific result should be articulated through a process that considers various hypotheses, arguments, confutations, and confirmations, and they should be shared with the public. Cover 1 Half-title 3 Series information 4 Title page 5 Copyright information 6 Table of contents 7 Introduction 9 1 The U.S. Supreme Court's Decision-Making Process: Deciding When and What to Decide 13 The U.S. Supreme Court's modern common law method and its flaws: An overview 13 Legal process: A model to consider 16 Criticism of the classic theory 19 Legal process and the law of federal courts 22 Toward a model of judicial decision making 24 The special case of judicial review 25 2 Personal Jurisdiction 31 Premise 31 Connecting factors and reasonable expectations 34 The traditional category 34 Tradition extended - minimum contacts 35 Problems with the U.S. Supreme Court's current approach to personal jurisdiction 37 The ascendance of doctrine 37 Fundamental principles adrift 38 Fundamental principles altered 43 Fundamental principles extended and withdrawn 44 Fundamental principles suppressed 45 Fundamental principles submerged 50 Doctrinal confusion in state and lower federal courts - the post-Hanson meaning of "purposeful availment" 57 The effects test 59 The stream-of-commerce test 63 A lesson from tailored long-arm statutes 65 Proposal: A fundamental-principles due process statute 71 Proposed statute 73 Section 1 73 Section 2 75 Conclusion 77 3 Forum Non Conveniens 79 Introduction 79 The due process model of jurisdiction and venue 80 Defining due process 80 Personal jurisdiction 82 Venue 83 Origins of the doctrine of forum non conveniens 84 Scotland and England 85 Forum non conveniens arrives in the United States 88 Developments of the doctrine of forum Non conveniens 90 Supreme Court precedent 90 Current practices within the federal judicial system 97 Variability as to types of cases to which the doctrine applies 97 Doctrinal indeterminacy 100 Repositioning forum non conveniens as a jurisdictional doctrine 105 A proposed codification of forum non conveniens 107 Proposed codification 108 Commentary and concluding remarks 109 4 Personal Jurisdiction and Forum Non Conveniens in a Transnational Context 112 Introduction 112 Defending harmonization 113 Conflict of laws rules 120 Terminology 120 The Romanist origins of conflict of laws principles: Using "connecting factors" to determine choice of law and jurisdiction 121 Roman and American conflict of laws rules share relevant roots 123 Choice of law rules 125 General Features of the Systems Under Consideration 125 Italy 126 Germany 128 France 129 England 130 United States 131 Commonalities between European and American choice of law systems 134 A few choice of law rules that might be harmonized 136 Contractual obligations 136 Noncontractual obligations 141 Jurisdictional law 144 Brief overview of European jurisdictional law 144 Brief overview of American jurisdictional law 150 Comparing European and American jurisdiction law: Are the differences truly irreconcilable? 156 Strong similarities between European and American jurisdictional law 158 Minor differences that cannot prevent harmonization: Tag jurisdiction and forum non conveniens 163 Tag Jurisdiction 163 Forum non conveniens 168 Similarities predominate over differences 173 Harmonizing conflict of laws rules and final remarks 176 Section I Scope and Application 189 Article I 189 Article II 189 Section II General Jurisdiction 191 Article III 191 Section III Rights in Rem 192 Article IV 192 Section IV Pendent Party Jurisdiction 193 Article V 193 Section V Lis Pendens and Related Actions 194 Article VI 194 Section VI Contractual Obligations 195 Article VII 195 Article VIII 196 Section VII Noncontractual Obligations 197 Article IX 197 Article X 197 Article XI 198 Article XII 198 Section VIII Forum Non Conveniens 199 Article XIII 199 Section X Tag Jurisdiction 200 Article XIV 200 Section XI Public Policy of the Forum 201 Article XV 201 Section XII Recognition and Enforcement of Judgments 202 Article XVI 202 5 Subject Matter Jurisdiction 203 Introduction 203 A claim-centered, fundamental principles approach to arising-under jurisdiction 203 Gully rediscovered 209 The mechanical approach to arising-under jurisdiction 213 Franchise Tax Board v. Construction Laborers Vacation Trust 213 Merrell Dow Pharmaceuticals Inc. v. Thompson 217 Christianson v. Colt Industries Operating Corp. 221 Grable and Sons Metal Products, Inc. v. Darue Engineering and Manufacturing 223 Empire Healthchoice Assurance, Inc. v. McVeigh 225 Gunn v. Minton: A Case Study 229 Gunn through the unified claim-centered approach 235 The Supreme Court's mechanical solution in Gunn 239 Concluding remarks 243 6 A Look Abroad: Is the Supreme Court's Decision-Making Process Unique? 246 7 Concluding Remarks 415 Index 420 Présentation de l'éditeur : "This book studies the U.S. Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, which often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules, using them as premises for developing consistent unitary theories to meet current social conditions. This model requires that judicial opinions be informed by a wide range of considerations, including established legal standards, the insights derived from deductive and inductive reasoning, the lessons learned from history and custom, and an examination of the social and economic consequences of the decision." This book studies the U.S. Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, which often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules, using them as premises for developing consistent unitary theories to meet current social conditions. This model requires that judicial opinions be informed by a wide range of considerations, including established legal standards, the insights derived from deductive and inductive reasoning, the lessons learned from history and custom, and an examination of the social and economic consequences of the decision.-- Provided by Publisher This book studies the US Supreme Court and its current law approach to judicial decision-making from a national and transnational perspective. It suggests the adoption of a judicial decision-making model that proceeds from principles and rules and uses them as premises for developing consistent unitary theories to meet current social conditions.