Allan Erbsen, Impersonal Jurisdiction

• Publication year: 2010

IMPERSONAL JURISDICTION

Allan Erbsen^*

ABSTRACT

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue's importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism-the constitutional relationship between states-should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence. The Article proceeds in three steps: it strips away layers of history and doctrine to present a model for thinking about why constitutional limits on personal jurisdiction may be necessary, shows how the model places personal jurisdiction within a broader context of constitutional law governing horizontal federalism, and considers how analyzing personal jurisdiction within this context challenges pivotal assumptions underlying modern doctrine and canonical understandings of how civil procedure and constitutional law intersect. In particular, the Article questions two pillars of the Supreme Court's jurisprudence. First, it considers whether the Constitution makes Congress rather than the judiciary the primary institution for regulating jurisdiction in state courts, and thus whether the prospect of diversity jurisdiction and removal to federal court should preempt judicially created due process remedies against jurisdictional overreaching by state courts. Second, it challenges the coherence of the multifactored reasonableness test that courts use to implement due process limits on state authority. More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine. The Article thus generates insights that can reshape a much maligned area of law that routinely confounds courts and scholars.

INTRODUCTION .................................................................................................. 3

I. REFRAMING THE PROBLEM OF PERSONAL JURISDICTION ....................... 9

A. Isolating the Problem by Asking the Right Questions .................. 10

1. Narrowing the Issue ............................................................... 10

2. Distinguishing Limits on a State's Authority to Exercise Jurisdiction from Limits on a State's Authority to Compel Appearance in an Inconvenient Forum .................................. 18

3. Framing the Defendant's Position ......................................... 32

B. Identifying Why the Problem Is Difficult: State Borders and

Federalism .................................................................................... 38

1. Relatively Easy Cases ............................................................. 41

2. Relatively Hard Cases ............................................................ 46

3. The Importance and Unimportance of State Borders: Using Insights About Jurisdiction in Federal Court to Inform Understanding of Jurisdiction in State Court ............. 49

4. The Derivative Role of Liberty Interests ................................. 54

II. HORIZONTAL FEDERALISM FRAMEWORK FOR ASSESSING HOW

STATE BORDERS LIMIT PERSONAL JURISDICTION ................................ 61

A. Integrating Personal Jurisdiction into a Broader

Constitutional Context .................................................................. 62

B. Methodological Benefits of Rethinking Personal Jurisdiction from a Horizontal Federalism Perspective .................................. 67

1. Analyzing the Constitution's Text on a Clean Slate ............... 67

2. Removing Jurisdictional Doctrine from the Silos of Civil Procedure and Conflicts and Situating It Within Broader Debates About Constitutional Law ......................................... 72

III. IMPLICATIONS ....................................................................................... 75

A. "Centralization," the Diversity Clause, and Skepticism About

Judicial Solutions to Jurisdictional Overreaching ....................... 75

B. "Comity" and Skepticism About the "Reasonableness" Balancing Test .............................................................................. 89

CONCLUSION .................................................................................................... 96

INTRODUCTION

Each year, virtually every civil procedure professor in the United States poses a question to students that courts confront every day: how, if at all, does the Constitution limit state courts' authority to exercise personal jurisdiction in civil litigation? The answer can have enormous practical consequences. If jurisdiction is difficult to obtain, then prospective plaintiffs injured by distant wrongdoers may incur the debilitating burden of traveling to and litigating in a defendant's preferred forum. This burden could lead to fewer or less effective suits and thus undermine the regulatory objectives that such suits promote. But if jurisdiction is easy to obtain, then prospective defendants incur the risk of suit in states with which they have little contact or experience. This jurisdictional exposure could compromise their ability to mount effective defenses and induce excessive risk aversion to avoid being sued, possibly to the point of discouraging socially desirable behavior. And if jurisdictional rules are unclear one way or the other, litigants will waste resources fighting about issues collateral to the merits, while potential litigants will be unable to anticipate and plan for litigation expenses. A fair and efficient system for resolving civil disputes therefore requires clear and coherent rules governing personal jurisdiction. Unfortunately, the rules in the United States are neither clear nor coherent.

Deciphering the Supreme Court's personal jurisdiction jurisprudence requires navigating inconsistent precedents that obscure vexing constitutional questions behind catchphrases and buzzwords, such as "minimum contacts," "substantial justice," "fair warning," "purposeful availment," and

"reasonableness."¹These terms are pregnant with meaning but hollow in substance. Confusion is inevitable, and is evident in caselaw and scholarship that attempt to define outer limits for states' adjudicative authority. Even basic foundational questions are hotly contested despite more than two centuries of doctrinal evolution. For example, commentators cannot agree on the constitutional source of limits on state judicial authority, which in various contexts could be the Due Process Clause,²the Full Faith and Credit Clause,³ the Commerce Clause,⁴a constellation of clauses regulating federalism,⁵or no clause.⁶Competing theories also abound about the purpose that limits on personal jurisdiction serve. Possibilities include ensuring that states exercise authority only over individuals who have manifested "consent,"⁷protecting defendants' expectations and promoting predictability in forum selection,⁸imposing limits on states' ability to wield "coercive power" absent a legitimate reason for doing so,⁹maximizing "utility,"¹⁰avoiding undue burdens that litigation in inconvenient fora may impose on parties,¹¹allocating the duty of travel between plaintiffs and defendants,¹²and hybrids of these theories.¹³The Supreme Court has similarly been unable to articulate a stable method for addressing disputes about personal jurisdiction. Doctrine vacillates along multiple dyads: sometimes emphasizing state sovereignty and other times emphasizing individual rights,¹⁴sometimes focusing on a state's power over

Mystery Inside an Enigma": General Personal Jurisdiction and Notions of Sovereignty, 1998 ANN. SURV. AM. L. 1, 15. actors and other times on power arising from the local effects of their actions,¹⁵and sometimes relying on a rule's historical pedigree and other times discounting it.¹⁶Likewise, the Court has unhelpfully opined that the forum state's interests in providing a forum matter except when they don't,¹⁷that burdens on nonresident defendants are material except when they aren't,¹⁸and that the plaintiff's interest in finding a convenient forum is important except when it isn't.¹⁹

Constitutional law governing personal jurisdiction thus careens forward as an evolving tapestry of modern insights and anachronistic assumptions stitched together without a guiding vision. Not surprisingly, commentators by near "consensus"²⁰routinely deride the resulting doctrine as "unacceptably confused and irrational,"²¹"convoluted and arcane,"²²"in chaos,"²³"half- baked,"²⁴"precarious,"²⁵and "plagued" by "ambiguity and incoherence."²⁶A new approach is clearly necessary. Yet scholars have been advocating reform for decades without making much collective headway; the many prior reconceptualization attempts have not settled the field. The persistence of disarray suggests that a fundamentally different type of approach is needed to break the gridlock.

This Article takes an innovative approach to conceptualizing personal jurisdiction by rethinking the subject from first principles without the distracting baggage of historically contingent assumptions about how the Constitution does or should apply. The goal is to offer a fresh perspective that can in turn provide a framework for reexamining modern doctrine and critiques of that doctrine. My premise is that one cannot identify which clauses of the Constitution regulate personal jurisdiction, the normative values that those clauses protect, and the ideal content of doctrine implementing those values unless one first asks more basic...