One Step Forward and Two Back : Missed Opportunities in Refining the United States Minimum Contacts Test and the European Union Brussels I Regulation

In 2011, the U.S. Supreme Court decided two cases regarding the scope of the "minimum contacts" test for permissible exercises of personal jurisdiction. In one case, relying on ill-defined notions of sovereignty, a plurality of the Justices of the U.S. Supreme Court ruled that a worker injured by an industrial machine marketed to the United States court not obtain jurisdiction over the machine's foreign manufacturer because there was no showing that the machine has been specifically marketed in the worker's home state. There was, however, no majority opinion. In another case, the Supreme Court ruled unanimously and relatively uncontroversially that unrelated sales of products in the plaintiffs' home state did not suffice for jurisdiction in a case involving a foreign accident, but the boundaries of the Court's newly announced "essentially at home" test for determining when jurisdiction will lie in cases involving unrelated activities is unclear. On the other side of the Atlantic, the "Recast" Brussels I Regulation, which regulates jurisdiction and judgments in the E.U., made some minor improvements, but the E.U. specifically rejected a proposal to eliminate the discriminatory feature of the Regulation, which is that it requires enforcement throughout the E.U. of judgments based on exorbitant bases of jurisdiction to be enforced throughout the E.U. As a consequence, these two important jurisdictional regimes are less rational and harmonized than they were before