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The Judges' Book

Abstract

The historical development of personal jurisdiction has featured an important interstate-federalism aim: to keep harmony among sovereign states. By purporting to use state borders to partition case allocation among states, personal jurisdiction follows the mantra that good fences make good neighbors.

This structural component fits uncomfortably with the idea of personal jurisdiction as an agent of the individual right protected by the Constitution’s Due Process Clause. Due process, after all, concerns a state’s relationship to a defendant, not the state’s relationship to another state.

In this chapter, I argue that whatever interstate-federalism value personal jurisdiction might, in theory, protect, the doctrine today does not adequately protect it. States and private parties have too much power to expand personal jurisdiction beyond those limits using the doctrine of consent and too much autonomy to restrict personal jurisdiction to create gaps where interstate federalism would assume state jurisdiction. Thus, state and party control over personal jurisdiction leaves in disarray whatever federalism values supposedly inhere in personal jurisdiction.

Accordingly, interstate federalism should be relocated from personal-jurisdiction doctrine to the oversight of other, more apt constitutional provisions, leaving personal jurisdiction to focus solely on the individual right of due process.

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