Prior to the Supreme Court's recent general personal jurisdiction decisions in Daimler AG v. Bauman and Goodyear Dunlop Tires Operations S.A. v. Brown American terror victims, injured in terror attacks abroad, were able to bring their attackers and those who sponsor them into United States courts for relief. Specifically, groups like the Palestine Liberation Organization (the PLO) and the Palestinian Authority (the PA) had a history of being sued by American victims of terror. In the course of these suits, the PLO and the PA were regularly found subject to the personal jurisdiction of U.S. courts under a theory of general personal jurisdiction based on their "continuous and systematic" contacts with the United States. In Goodyear and Daimler, the Supreme Court raised the threshold to exercise general personal jurisdiction from "continuous and systematic" to "essentially at home." Based on this more exacting standard, district courts have been dismissing terror cases against the PLO and the PA with prejudice due to a lack of personal jurisdiction over defendants. Before this change, cases against the PLO and the PA regularly proceeded. These dismissals have a res judicata effect and consequently American terror victims have no avenue for recourse at home. Focusing on congressional intent as presented in the Anti-Terrorism Act of 1992 and public policy considerations that militate towards the protection of American terror victims, this note suggests two solutions to plugging this hole in general jurisdiction law. First, lower federal courts could treat cases against the PLO and the PA, which are categorized as unincorporated associations or non-sovereign state organizations, as cases of first impression in the general jurisdiction context. The Supreme Court has only specifically applied the concept of general jurisdiction to individuals and to corporations. Second, and more convincingly, Footnote 19 in Daimler suggests there may be an "exceptional case" where a defendant is not "at home" in a forum for general jurisdiction but may be subject to that court's general jurisdiction nonetheless. U.S. courts should treat terror cases against organizations such as the PLO and the PA as "exceptional cases" and exercise general personal jurisdiction against those parties who injure Americans through their terror activities. Not allowing these terror cases to proceed serves only to further injure Americans who have already been harmed enough through terror activity abroad.
Stephen J. DiGregoria,
If We Don’t Bring Them to Court, the Terrorists Will Have Won: Reinvigorating the Anti-Terrorist Act and General Jurisdiction in a Post-Daimler Era,
82 Brook. L. Rev.
Available at: http://brooklynworks.brooklaw.edu/blr/vol82/iss1/9