The Volokh Conspiracy - A Weird Epiphany While Teaching Bremen v. Zapata in IBT:

My international business transactions course is a heavily transactional course - at my school, with its very strong international orientation and huge numbers of foreign LLM students, we separate out introduction to trade from IBT. But in order to get to transactions, we start with a discussion of cross border litigation and why it is so difficult and expensive and, naturally, focus on choice of law/choice of forum clauses in international contracts. That quickly leads us to one of the relatively few cases read in the course, the US Supreme Court decision in Bremen v. Zapata.

Bremen v. Zapata was a Chief Justice Burger opinion in 1972 which blessed the idea that international contracting parties could specify choice of law and choice of forum - and should not expect to reverse course later on if it turned out to be more advantageous to go for home court advantage. (I simplify somewhat a complicated record.) Zapata was Houston corporation that ran deep sea oil platforms, and it contracted with a German corporation, Unterweser, to have the German tug Bremen haul a Zapata rig from the Gulf of Mexico to the Adriatic Sea. A storm arose, and there was significant damage to the rig, and it put into port in Tampa. Once it arrived, Zapata commenced a damages action against Unterweser. Unterweser pointed out that the parties had agreed to a clause stating that all disputes would be settled in English courts in London. The District Court refused to give up jurisdiction, and a sharply divided Fifth Circuit en banc agreed, relying on a SCOTUS precedent. The Supreme Court reversed and remanded, with a lengthy disquisition dear to the heart of international lawyers about the needs for accommodation and comity and global commerce, and moreover a ringing endorsement of the rights of parties to set their own law of the contract.

Interestingly, however, Justice Douglas dissented. He did so on the grounds that notwithstanding the free consent of Zapata to English law and forum, requiring the District Court to give up jurisdiction would result in narrower rules of English contract damages, and this, in his view, meant denying American citizens their sovereign rights, substantive legal rights, and due process of law.

I was struck, in a classroom of 90 students, perhaps half US JD students and half foreign LLM students, that quite beyond the "freedom of contract" issue, it was difficult for them even to articulate a basis for Justice Douglas's view that there could be sovereign rights of Americans that had to be vindicated by American courts according to the American view of the rule of law. I asked who had heard of Justice Douglas, and was not so surprised to find that he was unknown to nearly all of them. Asking their impression of his view, I was told that he seemed to be an American conservative.

Definitely surprised by now, I said, look, Justice Douglas was a liberal's liberal, a New Deal Progressive Democrat. He was, I told them, very close to radical on important measures - for heaven's sake, he did once order a halt to the bombing of Cambodia in the midst of Vietnam war. My ephiphany? I assumed, quite erroneously, that I would hear a sort of collective interior gasp among the students at such judicial overreaching. Nothing of the kind. I was extremely puzzled. They had no idea on what basis I thought Justice Douglas was a liberal. My brilliant rhetorical ... fizzle.

But afterwards, a student came up to me leaving class and said, I don't understand, Professor Anderson, what's the big deal about ordering the bombing to stop? Justice Kennedy has ordered lots of things in the war on terror, and it wouldn't seem like a big deal if the Supreme Court ordered the Obama administration to end the war in Afghanistan or Iraq, or at least ordered the military to stop bombing people, or using drones, or many other things. That Justice Kennedy might order that and many such things in a Supreme Court majority opinion did not seem to him - and, I gather, to a number of other of my JD students - in the least bit out of the ordinary. Call me old-fashioned, but that was a bit of a surprise to me.

	[Kenneth Anderson, September 3, 2009 at 9:00pm] Trackbacks A Weird Epiphany While Teaching Bremen v. Zapata in IBT: My international business transactions course is a heavily transactional course - at my school, with its very strong international orientation and huge numbers of foreign LLM students, we separate out introduction to trade from IBT. But in order to get to transactions, we start with a discussion of cross border litigation and why it is so difficult and expensive and, naturally, focus on choice of law/choice of forum clauses in international contracts. That quickly leads us to one of the relatively few cases read in the course, the US Supreme Court decision in Bremen v. Zapata. Bremen v. Zapata was a Chief Justice Burger opinion in 1972 which blessed the idea that international contracting parties could specify choice of law and choice of forum - and should not expect to reverse course later on if it turned out to be more advantageous to go for home court advantage. (I simplify somewhat a complicated record.) Zapata was Houston corporation that ran deep sea oil platforms, and it contracted with a German corporation, Unterweser, to have the German tug Bremen haul a Zapata rig from the Gulf of Mexico to the Adriatic Sea. A storm arose, and there was significant damage to the rig, and it put into port in Tampa. Once it arrived, Zapata commenced a damages action against Unterweser. Unterweser pointed out that the parties had agreed to a clause stating that all disputes would be settled in English courts in London. The District Court refused to give up jurisdiction, and a sharply divided Fifth Circuit en banc agreed, relying on a SCOTUS precedent. The Supreme Court reversed and remanded, with a lengthy disquisition dear to the heart of international lawyers about the needs for accommodation and comity and global commerce, and moreover a ringing endorsement of the rights of parties to set their own law of the contract. Interestingly, however, Justice Douglas dissented. He did so on the grounds that notwithstanding the free consent of Zapata to English law and forum, requiring the District Court to give up jurisdiction would result in narrower rules of English contract damages, and this, in his view, meant denying American citizens their sovereign rights, substantive legal rights, and due process of law. I was struck, in a classroom of 90 students, perhaps half US JD students and half foreign LLM students, that quite beyond the "freedom of contract" issue, it was difficult for them even to articulate a basis for Justice Douglas's view that there could be sovereign rights of Americans that had to be vindicated by American courts according to the American view of the rule of law. I asked who had heard of Justice Douglas, and was not so surprised to find that he was unknown to nearly all of them. Asking their impression of his view, I was told that he seemed to be an American conservative. Definitely surprised by now, I said, look, Justice Douglas was a liberal's liberal, a New Deal Progressive Democrat. He was, I told them, very close to radical on important measures - for heaven's sake, he did once order a halt to the bombing of Cambodia in the midst of Vietnam war. My ephiphany? I assumed, quite erroneously, that I would hear a sort of collective interior gasp among the students at such judicial overreaching. Nothing of the kind. I was extremely puzzled. They had no idea on what basis I thought Justice Douglas was a liberal. My brilliant rhetorical ... fizzle. But afterwards, a student came up to me leaving class and said, I don't understand, Professor Anderson, what's the big deal about ordering the bombing to stop? Justice Kennedy has ordered lots of things in the war on terror, and it wouldn't seem like a big deal if the Supreme Court ordered the Obama administration to end the war in Afghanistan or Iraq, or at least ordered the military to stop bombing people, or using drones, or many other things. That Justice Kennedy might order that and many such things in a Supreme Court majority opinion did not seem to him - and, I gather, to a number of other of my JD students - in the least bit out of the ordinary. Call me old-fashioned, but that was a bit of a surprise to me.