Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.
This brief response is addressed only to what Professor Silberman describes as the "ever-puzzling" decision in Asahi v. Superior Court.
There is nothing puzzling about that decision, and I do not believe Professor Silberman is really puzzled. The Court concluded that it made no sense--i.e., it was unreasonable--to subject a Japanese subcomponent maker to the jurisdiction of a California court on a claim for indemnity or contribution by a Taiwanese component maker, when no U.S. resident party--plaintiff or defendant--had an interest in the outcome of that controversy. What troubles her, it seems, is that the discretionary element in jurisdiction over non-residents, which she approves of in England, has crept into the American approach to jurisdiction through use of the word "reasonable." Professor Silberman would like judicial jurisdiction to be like--or at least more like--her view of the Internal Revenue Code; either the court has jurisdiction or it does not. I believe judicial jurisdiction can never be wholly precise, once it moves from a dependence on personal service in a given territory to concepts such as "domicile," "arising out of," "place of performance of the obligation," "presence," and "transaction of business." More significant, however, is the discontent of Professor Silberman, and like-minded proceduralists such as Professor Burbank, with flexible construction of the Constitution itself.
Andreas F. Lowenfeld,
Professor Lowenfeld Responds,
28 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol28/iss3/4