The Median Voter Theorem tells us that if voters are spread out along a one-dimensional political spectrum, then the position held by the median voter will beat any other position in a head-to-head majority vote. It’s a theorem, so it must be true! In the real world there isn’t a one-dimensional political spectrum that voters fall along, and voters don’t vote rationally anyway. But we’ve just lived through an election that reminds us of the idea behind the Median Voter Theorem: if you want to win a fair election, you had better give the voters what they want.

I specify fair elections, because we’ve also lived through a partly failed attempt by the President of the United States and people eager to do his bidding to undermine the fairness of our elections. The idea was that something had to be done so that a really unpopular president and party could keep hold of power. Like Captain Kirk facing the Kobayashi Maru, but without Kirk’s effortless cool and panache, the Trump Administration decided to alter the conditions of the test, for example, by gerrymandering the bejezus out of congressional districts in between censuses, by seeking to exert control of elections at the federal level, and so forth. While many were eager to help the President’s malign efforts, the courts and many state officials, including Republicans and Democrats, did a decent job of resisting the worst of the legal and political pressure. But President Trump and the Republicans were so far from what the median voter wanted that no amount of monkey business was able to swing the election in their favor.

The obvious lesson of the midterm election is hubris and nemesis. Maybe the base of the MAGA movement really wanted the imposition of irrational tariffs that punish the American consumer. Maybe they really wanted mass deportations and armed and masked ICE agents terrorizing immigrant communities. Maybe they really wanted to destroy America’s leadership in higher education, basic science, and technology. Maybe they really wanted to alienate our allies and throw away American leadership of the Western world. Maybe they really wanted to start a war with Iran but not to commit the blood and treasure that it would have taken to win. I doubt it, but maybe. But that’s certainly not what the American people voted for or wanted. President Trump and his people couldn’t see that, and so he has been brought low.

Columnist Jamelle Bouie makes this point in a recent column, titled “Republicans Got Ruinously High on Their Own Supply.”

Trump and his allies looked at the 2024 election as an enabling act for all of their most radical aspirations. They saw the president’s popular vote victory and relative down-ballot success as a mandate that handed them the keys to American politics and culture. This was the “vibe shift”; the idea that Trump had not won an office but had built a new MAGA majority, a realignment that would shape American politics for the duration. It was a message that quite a few people wanted to hear, as it dovetailed with an elite “anti-woke” backlash and a revolt of capital against a strong, worker-friendly labor market.

* * *

But this was delusional. It was delusional then, after the 2024 election, when Trump and his party were euphoric with anticipation, and it was especially delusional as this year progressed and November loomed larger on the calendar.

If the message of the election was obvious, the lesson for the emboldened Democrats is obvious, too. If you want to win power and keep power, say and do things that are closer to what the median voter wants you to say and do. Bouie knows this: “Democrats should also not get too high on their own supply. ” But then he writes:

For Democrats to get too high on their own supply, then, is for Democrats to retreat to the idea that the only thing that mattered were a set of narrow “kitchen table issues”—and to shy away from taking bold action to clean house in Washington.

Whether the Democrats succeed will depend on how they interpret their mandate for “bold action.” I hope they will interpret it to mean bold action to impose more legal limits on the power of the presidency, for example, by passing the bipartisan ARTICLE ONE Act, which would require Congressional approval for presidential emergency declarations after 30 days, or by using the power of the purse to enforce the requirements of the War Powers Resolution. I hope they will interpret it to mean recommitment to traditional US foreign policy, which has always recognized that strong American alliances are good for us militarily, diplomatically, economically, and culturally, and not just gifts that we give to our allies. I hope they will interpret it to mean restoring the independence and credibility of the Department of Justice. If they return American government to its traditional course, and if they take steps to reduce the danger that another authoritarian president could pose in the future, they’ll set the stage for a Democratic majority for a long time to come.

I suppose I can leave the “but” unsaid this week. Time enough for the “but” in the weeks and months to come.

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It’s been a while since I’ve written about the Nonhuman Rights Project, the group that is on a mission in state courts across the country to find some judge, somewhere, who will say that elephants are persons and are therefore entitled to petition for writs of habeas corpus. You can find my archive of prior posts here. Suffice it to say that so far, no court has gone bananas.

Let’s get caught up on recent decisions. A few weeks ago, the Pennsylvania Superior Court, an appellate court, affirmed the dismissal of a petition brought supposedly on behalf of several elephants at the Pittsburgh Zoo. It used unusually direct, but legally accurate, language:

Chattels have no right to the Great Writ.

And about a month earlier, the Michigan Supreme Court denied the NhRP’s motion for reconsideration of its earlier order denying leave to appeal a decision dismissing another petition.

There is also an upcoming case that will be heard next week in the Hawaii Supreme Court. The case is like all the others. We will see how it turns out. As in prior cases, there are amicus briefs on both sides of the issue.

And maybe most surprisingly, the NhRP has recently filed a habeas corpus petition not on behalf of elephants, but on behalf of beagles being held in what it says are cruel conditions in Wisconsin. The court, of course, dismissed the petition. The NhRP sought an injunction pending appeal, which the court denied on the grounds that there was no abuse of discretion because the lower court had “considered the relevant case law and concluded that dismissal of the appellants’ petition was warranted because habeas corpus does not extend to animals.”

You would think that the NhRP would be more keenly attuned to the slippery slope problem. It’s one thing to say that elephants or maybe chimapnzees or other great apes are exceptional and like human beings in many important respects. But if you assert that “beagles are persons,” then why not “tabby cats are persons” or “cows are persons”? I’m reminded about the story I told in 2015 about Lieutenant Bars, the defendant in a police brutality case who was a very bad boy.

I want to revisit a point I made at length in a 2023 post and that I first raised way back in 2018. The rapid development of AI, especially in the years since 2023, increase the risks that a judge will someday say that an elephant is a person. Why? It’s not because we come to think that elephants are “more like us.” It’s because we may come to think, in light of our exposure to the new technology, we are “less like us,” or more like machines. Or as Sam Altman tweeted a few years ago:

i am a stochastic parrot, and so r u.

And if that’s true, then what is the point of drawing a firm line between human beings and everything else? If we’re not moral persons, then why not open the door to elephants?

That to me seems to be one of the real dangers of AGI. It runs the risk of undermining our sense of our own moral and legal value. Instead of saying, “computers are people because they can do some of the wonderful things we can do,” which would be one kind of mistake, we might say, “people are just computers because the things that we can do can be done by computers.”

Let me bring in what could be regarded as either a lowbrow reference or a highbrow reference, depending on what you think about classic science fiction of the twentieth century. In Frank Herbert’s Dune, which takes place in the far future, the characters talk about a social upheaval that was in their distant past but our distant future, the “Butlerian Jihad.” In the Jihad, humanity destroyed all of their “thinking machines,” which had enslaved them. If there is ever a real Butlerian Jihad, I think it will happen because people revolt against the devaluation of humanity that the creation of AGI risks causing.

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On subject-matter jurisdiction, the court held that the Ukrainian companies proved all three “jurisdictional facts” prima facie. They proved the existence of an agreement to arbitrate by proving the existence of a treaty containing the agreement to arbitrate and the notice of arbitration that commenced the arbitration. They proved the existence of the award. And they proved that the award was covered by the New York Convention, because the dispute was commercial.

In light of Stabil LLC v. Russian Federation, 167 F.4th 506 (D.C. Cir. 2026), the court held that some of Russia’s counterarguments failed.¹ Under Stabil, the arguments about the agreement to arbitrate went to the scope of the agreement, not its existence, and the dispute was commercial, not geopolitical. The remaining argument, which Stabil had not resolved, was whether the arbitration exception applies only to disputes between states and private parties, not to disputes between states: Russia argued that the plaintiffs, which were state-owned enterprises, were not private parties and therefore could not invoke the exception.

The arbitration exception, 28 U.S.C. § 1605(a)(6), makes an exception to foreign sovereign immunity in cases:

in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if … (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards ….

The court reasoned that the statute did not require that the action be brought by a private party, but that it had to be brought to confirm an award made pursuant to an agreement to arbitrate that the foreign state made with or for the benefit of a private party. Russia didn’t make the agreement to arbitrate with Ukrainian investors. It made the agreement with Ukraine. But it made the agreement for the benefit of investors. That’s the whole point of investment treaties. What the arbitration exception really does, the court observed, is to give state-to-state arbitrations special treatment, but this wasn’t a state-to-state arbitration.

1. D.C. Circuit precedent also foreclosed the personal jurisdiction challenge. ︎

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The case of the day is Whoop, Inc. v. Shenzhen Wonlex Technology Co. (D. Mass. 2026). As you might guess from the case name, it’s an IP infringement case involving a Chinese defendant. Whoop sought a preliminary injunction. It made an emergency motion for leave to serve the Chinese defendant with process by email before the hearing on the motion for a preliminary injunction.

The longtime Letters Blogatory view, now blessed by the federal appellate courts that have considered the question, is that you cannot serve process by email on a defendant in China whose address is known. The reason is that under the Service Convention, email service is permissible, if at all, only because it qualifies as service by postal channels.¹ The Convention permits service by postal channels and certain other alternative methods, but only if the state of destination has not objected. But China has objected to all alternative methods of service. QED.

The judge, without much discussion, agreed with the orthodox view. But Whoop pointed to Article 15 of the Convention, which provides:

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

The “preceding paragraphs” explain when a court can enter a judgment in cases where “a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared,” or in other words, when a court can enter a default judgment in cases where the Convention applies.

Whoop argued that service of process by email is a “provisional or protective measure” that the court can authorize “in case of urgency.” There are courts that have taken that view. But the judge in today’s case (Judge Saylor, here in Massachusetts) disagreed, holding, correctly in my view, that Article 15 simply means that a court can order measures such as preliminary injunctions or temporary restraining orders, even if the court could not yet enter a default judgment. The purpose of the sentence Whoop relied on is simply to make it clear that there has to be a way for courts to act on applications for emergency relief even if they cannot enter a final judgment unless and until service of process has been effected.

But that doesn’t mean Whoop was barred from seeking a preliminary injunction. It’s true that under the law of the forum, namely FRCP 65(a)(1), a preliminary injunction may issue only “on notice to the adverse party.” There is also, of course, a due process issue here. But notice is not service.

Think twice before wading into this semantic morass. The Convention refers in English to “service,” but in French it refers to “signification” and to “notification.” I am not a civil law expert, but at a high level, signification is the more formal method of notification, executed by a judicial officer, and roughly equivalent to service of process, while notification is a broader term that reaches less formal methods of notifying a party of something.

The judge’s view was that because giving notice of a motion for a preliminary injunction does not require service of process, and because email is adequate notice both under FRCP 65 and under the Due Process Clause, providing notice by email does not violate the Convention. As a practical matter, he has to be right. Otherwise it is hard to see how a US court could issue preliminary injunctions in cases where the defendant is in a state that has objected to service by alternate methods. But I am not so sure that getting to that conclusion is a simple matter under the Convention.

Here is how Article 1 of the Convention, in English, defines the Convention’s scope:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

And here it is in French:

La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié.

The problem is that “service,” in English, should have the same meaning as “signification ou notification” in French. That is, it should not be limited to formal service of process. I have also written previously about the Convention’s reference to transmission of any “judicial or extrajudicial document” rather than simply to summonses in order to demonstrate that the Convention can’t easily be limited to service of process in the strict sense, as we conceive of it in American law.

I don’t think there can be any real argument that a motion for a preliminary injunction, with the accompanying papers, is a “judicial document,” and that, at the beginning of a case, where a defendant abroad is not (yet) represented by US counsel, there is occasion to transmit the motion to the defendant abroad. So what is a court to do? One possibility is to look to Schlunk v. Volkswagen, 486 U.S. 694 (1988), which suggests that the Convention really is limited in its scope to service of process, though that solution is not persuasive for the reasons I’ve just given. Of course I acknowledge the discussion of the drafting history in Schlunk, but I have to say that it seems to me that the court’s view begs the question, because it seems to say that the use of the word service, or signification or notification, rather than delivery (remise), shows that the Convention means to refer to service of process. But the whole point is that signification and notification together apply to many more kinds of documents than just the kinds used to bring a defendant before the court. And that’s true if we consider the English word service without worrying about French. FRCP 4 governs service of the summons and complaint and explains the methods that can be used. FRCP 5 governs service of all other documents in a lawsuit and explains the methods that can be used. So even in a purely American context, focusing on the use of the word “service” doesn’t make the case.²

A better view, maybe, is to look at the “notwithstanding” language from Article 15, but in a different light than Whoop or the court considered it. The question shouldn’t be whether service of documents by email is a “provisional or protective measure,” but rather, whether a court’s power to grant provisional or protective measures necessarily implies the power to do the things that are necessary conditions precedent to granting those measures, for example, giving notice of the proceedings to the adverse party via a method that would not ordinarily be permissible under the Convention. I’m not sure that’s perfect, but it seems the most defensible way to get to the necessary conclusion: that even if the plaintiff will ultimately have to serve the defendant via the Chinese central authority, in case of urgency, it can get a preliminary injunction after giving notice in a less formal way.

1. If service by email is not service via the postal channel, then China’s objection isn’t relevant, and the key point becomes the lack of any provision in the Convention that can fairly be read to authorize or permit service by email. ︎
2. Am I saying that the Convention applies to the transmission of more or less all documents in a lawsuit? Yes, I am. But this issue doesn’t really arise in practice except for preliminary injunctions, because once a lawyer appears for the defendant, FRCP 5 requires service on the lawyer, not the party, so there is no occasion to transmit the document abroad for service. And there is no real problem of pro se litigants, at least in cases like Whoop’s, because corporate defendants cannot appear pro se. Preliminary injunctions are a problem because the papers are typically served at the very beginning of the case, before a lawyer has appeared. ︎

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As has become my custom, I’m publishing a reflection on the anniversary of 10/7, a life-changing day. Since last year, there has been some good news. All of the hostages still alive were released. And just in the last few days, there was a miracle: a heroic Indian pilot and the heroic Israeli passengers aboard a Flydubai flight from Dubai to Tel Aviv managed to foil a hijacking by the co-pilot, an Omani Islamist, who wanted to commit a 9/11-style attack by crashing the plane at Ben Gurion Airport. Here in Massachusetts, the Commission on Combatting Antisemitism held public hearings that exposed the antisemitism the Jews of Massachusetts have been facing, including the efforts of radical leaders of the Commonwealth’s main teachers union to introduce antisemitic curriculum in the public schools, and that have led to legislative and other recommendations that will, I hope, soon be implemented. There have been similar bright spots around the United States and the world as people, including Christians, Muslims, and others who see that something is wrong and want to do something about it, have gotten more organized about confronting antisemitism at its roots.

But there has also been plenty of bad news. Antisemitism on the left and the right. Attacks on synagogues. Ostracism of Jewish writers, artists, and businesspeople. An increasingly sophisticated (or at least, an increasingly wordy and recondite) antisemitism among academics and others. People, including some Jews, excusing antisemitism within their own parties while condemning it in the other guy’s party, wrongly thinking that it’s better put the other guy back on his heels in the next news cycle or the next election than to address a growing ideological cancer that, history shows, will not just affect the Jews.

While I think there are some people who read posts like this and silently wish that I would just get back to writing about service by email when the Service Convention applies, I’ve received a lot of messages from people with kind words of support. My response is always the same. First, thank you! And second, please use your own voice and speak up in ways that are comfortable for you or even a little bit uncomfortable. The world needs you!

And if you want a suggestion for something you can do that doesn’t require you to say anything, publicly or privately, it’s this: read the new book by Dara Horn, The Final Solution to the Jewish Question: A Love Story for the Living. It’s a very good statement of what it feels like to be Jewish in America now, and an interesting prescription about what we can do to make things better.

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The case is interesting because of the treatment of the Chinese defendant’s address. The Hague Service Convention, remember, simply does not apply if the defendant’s address is unknown, and so the limitations the Convention imposes on service by email also do not apply if the defendant’s address is unknown. The defendant’s address was listed in its Amazon page, which you might think would be the end of the issue. But the plaintiff argued that he hadn’t been able to verify the address using the China Mainland Business Registry, apparently because the Amazon page didn’t give the defendant’s name in Chinese. Anyway, it doesn’t seem that the plaintiff tried to serve process via the Chinese central authority once it decided that the address could not verified.

It seems to me that the plaintiff outsmarted himself here. If the website gives an address, rather than undertaking investigations and making motions for leave to serve by alternate means and then fighting motions challenging the validity of the service, why not just ask the central authority to serve process at the address given? The judge didn’t take this approach though. Instead, she concluded that the plaintiff had not used reasonable diligence to discovery the defendant’s address, and therefore, that the address was not “unknown” for purposes of the Convention. The right result, but a questionable path to it.

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Today’s case of the day is Devengoechea v. Venezuela (11th Cir. 2026). Friend of Letters Blogatory Ingrid Brunk discussed the case in a recent post at the Transnational Litigation Blog, and I wrote about an earlier stage of the case years ago. Devengoechea was a collector of artifacts of Simón Bolívar who lived in Florida. He claimed that Venezuelan government officials had agreed to meet with him in Venezuela to negotiate a purchase of his collection. They agreed that they would inspect the artifacts and either buy them or return them to him. He left the artifacts in Venezuela to allow the government to inspect them, but “ultimately, Venezuela neither paid Devengoechea for the collection nor returned it to him.” Let me begin by saying that it strikes me that Devengoechea seems to have been either incredibly naive or else poorly advised. In any case, Devengoechea sued for breach of contract and unjust enrichment.

At first, Venezuela failed to appear in the case. The clerk entered its default, the court held a trial on damages, and ultimately it entered a default judgment. Venezuela then did appear and sought to vacate the judgment. Devengoechea stipulated to the vacatur. Venezuela then moved to dismiss for lack of subject-matter jurisdiction. The court denied the motion, Venezuela appealed, and the Eleventh Circuit affirmed. On remand, Venezuela continued to participate in the litigation, moving again to dismiss and also moving for summary judgment. The court denied its motions. A “regime change” in Venezuela also led Venezuela’s lawyer to withdraw from the case. Venezuela then stopped participating. While the court apparently considered entering another default judgment on liability, Devengoechea “stated he prefer[red] to prove his case.” So the court held a trial on the merits. Venezuela did not participate. Following trial, the court entered judgment for $17 million against Venezuela. Venezuela then appeared again in the case and appealed.

The basis for the appeal was the claim that the FSIA does not allow for “trial in absentia” but requires a default judgment. I am not totally I understand what the appeal is about. In a criminal case, there’s a real issue about trials in absentia, because a criminal defendant has a right to be present at all stages of the case. Even in criminal cases, the right is not absolute and can be waived or forfeited. But what is a “trial in absentia” in a civil case? Isn’t it just a trial where one party fails to show up after receiving notice? The party has the right to be present, of course, but the party’s presence is, as far as I know, never actually required for the trial of a civil action to go ahead. When a party to a civil action is not a natural person, then of course the party itself can never really be “present” in court anyway. It seems to me that what happened here was that the court scheduled a trial, one side didn’t show up, and the court went ahead with the trial rather than proceeding by default. It’s hard for me to see why this could be inconsistent with the FSIA, why it isn’t just an example of a case proceeding to trial and judgment in the ordinary course.

The Eleventh Circuit, though, didn’t see it that way. The court treated the judgment as a default judgment and held that the FSIA did require a plaintiff to follow the ordinary procedure for obtaining a default judgment in FRCP 55. The court, in its discussion of Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1979),¹ seemed to agree that in a non-FSIA case, the analysis I gave above would be correct. I admit to having some trouble understanding why it has distinguished the case. The reasoning seems flawed to me: (1) the FSIA’s provisions on default judgments are mandatory and exclusive and require compliance with the procedural requirements of FRCP 55; (2) this was a default judgment; therefore (3) the outcome of the trial in absentia, which did not follow the ordinary procedure for defaults, must be set aside. But I don’t see any actual reasoning or support for point (2) in the decision. Judge Rosenbaum’s dissent seems to be right on the money:

The Majority Opinion offers no reason why a district court cannot try a civil defendant in absential when the litigant ceases to defend the case. And it doesn’t explain how—despite binding precedent to the contrary—a judgment following that type of trial is a default judgment.

Ingrid’s post correctly points out how frustrating this must be for the plaintiff. I agree, though I have to say I don’t understand why the plaintiff did not take the option of a default judgment when it was offered. It is hard to imagine the court giving Venezuela relief from a default in the circumstances, just because we prefer trials on the merits. You don’t get two freebies.

1. Old Fifth Circuit cases are precedential in the Eleventh Circuit, which split off from the Fifth Circuit as that circuit grew and grew. ︎

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Let’s pause to remember the men and women who died in the 9/11 terrorist attacks, twenty-five years ago today.

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The case of the day is In re Application of Biogen MA (D. Del. 2026). It’s a Section 1782 decision in a cross-border patent dispute. I was counsel to the applicant. Biogen had brought patent infringement claims against Sandoz in the US and in the UK. It intended to bring a claim in Italy, but it wasn’t able to plead what it needed to plead to commence the case, because the evidence it had obtained in the other proceedings could, under the protective orders, not be used for purposes of any other proceeding.¹ So Biogen sought leave under Section 1782 to issue a subpoena. After the court granted leave, Sandoz moved to vacate the order and to quash the subpoena.

The statute requires that the evidence sought be “for use in” a foreign proceeding. A question arises when the foreign case isn’t pending yet. The court distinguished cases that were merely fishing for information to see whether a foreign case was possible, noting that Biogen had already asserted infringement elsewhere and was looking for details about the who, what, where, and when of the infringemen in Italy.

Sandoz also raised a question about whether the target of the subpoena was “found” in Delaware, as the statute requires. It argued that Biogen was actually seeking evidence from Sandoz Int’l GmbH or other entities. But as the judge recognized, the subpoena was directed to Sandoz, Inc., which clearly is found in Delaware. And documents that are created by one entity in a global enterprise can of course be in the possession, custody, or control of other entities in that global enterprise, or their agents. The court found this last point “convincing,” which I was happy to see, because all too often respondents that could obtain documents from their affiliates with a phone call or a touch of a button raise highly technical arguments about where the documents are located.

The court went on to do a standard Intel analysis and found that all the factors favored the application. It also considered Sandoz’s arguments that even though all the Intel factors favor discovery, the court should have denied the application on the grounds that it was inconsistent with the twin aims of Section 1782: assisting litigants in foreign cases, and encouraging foreign states to provide reciprocal assistance to litigants in US cases. Of note, the fact that the documents were located in Europe did not give rise to any real question.

1. It’s always possible to ask a US court to modify a protective order when this situation arises. But such a request can lead to accusations of sandbagging, and so sometimes I think it is best to bring a new Section 1782 application. ︎

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The allegedly wrongful “removal or retention,” which is key to the Convention analysis, occurred when the wife refused to bring the children for the previously agreed visit to Canada, and the question was whether the children were then “habitually resident” in the United States, or in Canada. The court noted the lack of a shared parental intent, the temporary nature of their visa, and traditional factors such as their drivers’ licenses, the situs of their joint accounts, the location of their personal property, etc., and found that the lower court had not clearly erred.

Next, the court turned to the wife’s affirmative defenses, including, notably, the defense of acquiescence. The focus was on the husband’s counterclaim in the divorce case, which asked the Massachusetts court to award custody, and on his entry into stipulations in the Massachusetts case. While a “a clear and formal consent order by the non-U.S. parent agreeing to let a state court decide final custody” would be enough to show acquiescence, the doctrine in narrow, and the court found that the husband had not acquiesced.

Friend of Letters Blogatory Melissa Kucinski, author of the Family Law Across Borders blog and one of the real experts, has criticized Judge Lipez’s concurring opinion:

Here is the problematic part of the waiver-acquiescence discussion in the concurrence. It framed the discussion around the custody case, making an argument that if a non-retaining parent enters into a consent order (but not a counterclaim) in the state family court case, ceding the right to “have jurisdiction for custody proceedings determined under the Hague Convention”, it is a waiver. But, there are significant issues with this statement and the extraneous, potentially unnecessary language in the concurring opinion. This blog urges you to read the Uniform Law Commission’s Commentary distinguishing custody jurisdiction from a request to return a child under the Hague Abduction Convention. The two are different. A Hague Abduction Convention suit does not determine where a custody suit may be filed – it is not a jurisdictional treaty. Furthermore, a parent cannot consent to subject matter jurisdiction in a state court case. Custody jurisdiction is subject matter jurisdiction. Furthermore, and unique to this particular case, Massachusetts is the only state that still uses the old version of the uniform act on custody jurisdiction. So, what might be said for Massachusetts may be different for every other U.S. state in terms of custody jurisdiction.

I chime in simply to add that Massachusetts is behind the times across the board in its adoption of the most modern versions of uniform laws in private international law and related areas. We still have the Uniform Foreign Money Judgment Recognition Act on the books and are in the small minority of states that require reciprocity as a condition for recognition of a foreign judgment. And we have not yet adopted the Revised Uniform Arbitration Act, let alone a statute better suited to international arbitration. I hope our legislature will make modernization more of a priority than it has until now.

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