Goodyear and Nicastro: Observations from a Transnational and Comparative Perspective

Abstract

This article views the recent U.S. Supreme Court jurisdictional cases, Goodyear Dunlop Tires Operations, S.A. v. Brown and J. McIntyre Machinery, Ltd v. Nicastro, from both a transnational and comparative perspective. As transnational cases, Goodyear and Nicastro raise the question whether the Due Process Clause of the Constitution should be interpreted to impose different standards for domestic and foreign defendants. Professor Silberman argues that a national contacts approach is appropriate for specific jurisdiction but not general jurisdiction. She also examines various proposals for reaching foreign defendants who market in the United States but do not have sufficient connections with a single state. Professor Silberman examines how courts in Canada have dealt with transnational cases, noting a very recent decision of the Canadian Supreme Court, Club Resorts v. Charron, released just as the article was going to print and may have changed the Canadian approach to jurisdiction. Professor Silberman also offers a comparative look at the jurisdictional regime in the European Union, along with the recent European Recast proposal, as a means to evaluate the U.S. approach to both general and specific jurisdiction in transnational cases.