‘간주된 동의’ 관할의 재부상과 미국 국제․주제재판관할법의 퇴보 - Mallory v. Norfolk Southern Railway Co.의 비판적 검토 -

In its 2023 judgment in Mallory v. Norfolk Southern Railway, the United States Supreme Court dealt with the issue of whether the jurisdiction based on the consent implied by law can satisfy the due process standard of the United States Constitution. This attempt was made in the presence of of the apparent conflict between the mainstream case law since International Shoe v. Washington (1945) and Burnham v. Superior Court (1990), the rather erratic case law that singles out presence-based jurisdiction as immune from the due process test. Instead, an odd result was reached: Justice Gorsuch's plurality, unmitigatedly supporting the jurisdiction based on consent implied by law, became the plurality opinion and thus came to the forefront. Although Justice Barrett cogently pointed out that International Shoe forms part of the traditional doctrine, which finds it uncomfortable to accommodate another odd and conflicting branch of case law, this opinion fell short of receiving the support of the majority. In order to reach a judgment, the Supreme Court decided to follow Pennsylvania Fire Ins. v. Gold Issue Mining (1917), which had found the consent implied by law as a sufficient basis of jurisdiction under the Due Process Clause, as dictated by the principle of precedents. However, this is a clear misapplication of this principle to neglect to deal with the whole body of case law but apply this principle to an erratic case law. As a result, jurisdiction based on consent implied or imposed by law now presents itself as a follow-up to Burnham, which gave presence-based jurisdiction an immune status. As in Burnham, this intraterritorial jurisdiction exceptionalism has roots in the conceptual confusion of the territorial reach of judicial power and the proper scope of international and interstate jurisdiction. In this writer's opinion, the key to a more orderly development of the Supreme Court case law should be found in properly distinguishing the question of the territorial reach of judicial power and that of international and interstate jurisdiction to adjudicate. A territorial polity has a monopoly of judicial power within its territory, and this power cannot go beyond the territory. However, the intraterritorial jurisdiction based on presence or implied consent cannot be absolute, and the international and interstate jurisdiction can reach beyond the border where appropriate. It is because the primary concern in determining international and interstate jurisdiction is the parties' interests and not the power of the forum state or its conflict with the other states'. The state should balance the interests of the parties as well as other interests and use its prudence to limit or expand its international or interstate jurisdiction properly. In essence, international and interstate jurisdiction is a question of how far the judicial power of a territorial state is to be exercised, rather than whether its judicial power exists in a certain place. Therefore, international and interstate jurisdiction is not to be simply deduced from the territorial reach of the judicial power of a state. In invoking the Due Process Clause to review the constitutional acceptability of an international or interstate jurisdiction, the Supreme Court has wisely distanced itself from the English notion that prudence remains an exclusive realm of the forum (non) conveniens doctrine. Therefore, jurisdiction based on presence or implied consent should be subject to the balancing of interests and the prudential decision-making. The legislature should try to set out when they are proper and when not. The courts should inquire whether their exercise satisfies the Due Process test. Both endeavor, legislative and judicial, should be pursued seriously. Meanwhile, Prof. Epstein's consent-centered theory may have had some influence on the plurality opinion of Justice Gorsuch. However, we should note that Epstein’s main concern is the interests of parties, not states. Moreover, there is a room to interpret his theory as a contractarian search for the fundamental criterion of good jurisdictional bases. He tends to define it as jurisdictional bases that are persuasive or reasonable to the parties, with a focus on the defendant. So he asks whether a hypothetical defendant would have consented to jurisdiction in “no consent” situations. This inquiry should not be confused with an attempt to attribute a presumed intent to a concrete defendant.