Private Law Theory

ABSTRACT
This article is an update of another of the ten lectures I delivered remotely and asynchronously in my summer 2021 Hague Academy General Course in Private International Law entitled ‘The Counter-Revolution in Private International Law in the United States: From Standards to Rules?’. This particular topic – The Extraterritorial Reach of US Statutes: From Standards to Rules – was the inspiration for my selection of the overall theme of these Hague lectures. At the time I was asked to choose a subject for the lectures (several years before I was to deliver them), the Supreme Court was transforming the law of prescriptive jurisdiction in transnational cases. The Court had decided Morrison v National Australia Bank and Nabisco v European Community, and along with the Court’s decision on personal jurisdiction decision in Daimler AG v Bauman (in 2014), it appeared to me at the time that US private international law more generally was moving toward a regime of rules and away from multi-factor balancing. That change was also reflected in the decision of the American Law Institute to revise specific sections of the Third Restatement of Foreign Relations Law, and which culminated in a new Fourth Restatement of Foreign Relations Law in 2018. Since summer 2021 when I originally delivered this lecture on extraterritoriality, new developments, including the Supreme Court decisions in Yegiazaryan v Smagin and Abitron v Hetronic International, tested my assumption about the direction of private international law in this area. This article, which also includes a short comparative perspective on developments in other countries, offers a comprehensive overview and analysis of the US trend toward rules.

Silberman, Linda, Extraterritorial Reach of US Statutes: From Standards to Rules, New York University School of Law, Public Law Research Paper Forthcoming.