The Problem with General Jurisdiction
![handle is hein.journals/uchclf2001 and id is 123 raw text is: The Problem with General Jurisdiction
Patrick J. Borcherst
General jurisdiction in the United States is a problematic
concept. It is problematic in its scope, its application, its fair-
ness-perhaps in its mythical existence, as one member of our
panel has forcefully argued.' The problems get worse once one
tries to extend the concept internationally, as the famously poor
record of the United States in attempting to conclude interna-
tional jurisdictional agreements shows.2 But, as I shall argue
here, general jurisdiction's problems are at least partly about
specific jurisdiction; sensible and predictable bases of general ju-
risdiction should cause no difficulty. The issue, as I see it, is not
so much with general jurisdiction as such, but with finding a ra-
tional jurisdictional scheme that encompasses both general and
specific jurisdiction.
To dispense with a few preliminary matters: general juris-
diction and specific jurisdiction are terms invented by Profes-
sors von Mehren and Trautman3 and used by the Supreme
Court.4 The term general jurisdiction (at least supposedly)' re-
fers to bases of jurisdiction that are independent of the operative
facts of the dispute between the parties. Professor Twitchell help-
fully calls this dispute-blind jurisdiction.6 Thus, assertions of
jurisdiction based upon the in-state service of the defendant7 or
t Dean and Professor of Law at the Creighton University School of Lax.
1 Mary Twitchell, The Myth of General Jurisdiction, 101 Harv L Rev 610, 633 (1988)
([An] examination of the pattern of contacts supporting general jurisdiction in recent
suits does not, by itself, explain the role of general jurisdiction in contemporary jurisdic-
tion decisions.).
2 See Friedrich K. Juenger, A Hague Judgments Convention?, 24 Brooklyn J Intl L
111, 111-13 (1998) (detailing past failure of American efforts).
3 Arthur von Mehren and Donald Trautman, Jurisdiction to Adjudicate: A Suggested
Analysis, 79 Harv L Rev 1121, 1136-37 (1966).
4 See, for example, Helicopteros Nacionales de Colombia v Hall, 466 US 408, 418 n 12
(1984).
5 See Twitchell, 101 Harv L Rev at 611 (cited in note 1) ([C]ourts have developed a
variety of approaches to the conceptual framework that are not always consistent with the
original meaning of the terms ['general' and 'specific'].).
6 See id at 613.
7 See, for example, Burnham v Superior Court of California, 495 US 604, 610-11
(1990) (Among the most firmly established principles of personal jurisdiction in American
119](ViewImageLocal?handle=hein.journals/uchclf2001&div=7&collection=&method=preview&ext=.png&size=3)
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The Problem with General Jurisdiction
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