Desert, utility, and minimum contacts: toward a mixed theory of personal jurisdiction.

• Author: McMunigal, Kevin C.

Ambiguity and incoherence have plagued the minimum contacts test for the more than five decades during which it has served as a cornerstone of the Supreme Court's personal jurisdiction doctrine. At its inception in 1945, Justice Black called the minimum contacts test "vague," "uncertain," and "confusing."(1) Supreme Court cases in the intervening years have amplified that ambiguity. More than forty years after Justice Black's comments, federal appellate judges echo his criticism, complaining that the test is composed of "gestalt factors"(2) and describing its application as "more an art than a science."(3) In short, the minimum contacts test's criteria are confused, its purposes perplexing, and its results often unpredictable.(4)

To remedy this situation, some scholars have proposed significant changes in the test, such as abandonment of many of the factors currently used in minimum contacts analysis.(5) However sound such advice may be, the Supreme Court has ignored it. Rather than discarding any of the test's factors, the Court has regularly added new factors in a process of gradual accumulation, each addition aggravating the test's ambiguity and complexity.

In this Essay, I suggest several steps to improve the Supreme Court's approach to minimum contacts analysis. Though they necessitate some modification of current doctrine, these steps require neither radical alteration of the test's current factors nor abandonment of any of its purposes. I propose a new way of looking at the Court's minimum contacts analysis that better explains and integrates the factors, temporal perspectives, and purposes that presently figure in the analysis. My approach draws on criminal law, analogizing a state's imposition of the burdens of jurisdiction to its imposition of a criminal sanction. It sees the minimum contacts doctrine as driven by two goals--individual desert and social utility--with quite different temporal orientations and criteria. This approach uses one group of factors that adopts an ex post viewpoint looking back to the time before initiation of litigation (for example, the defendant's past conduct and mental state) to assess whether the defendant deserves imposition of the burden of the forum's exercise of jurisdiction. It collects in a second group factors that adopt an ex ante viewpoint looking forward to the time after initiation of the litigation (for example, efficiency and party convenience) and uses them to determine whether the forum's exercise of jurisdiction will prove socially useful.

While Part I asks the Court to reconsider the impulses behind the minimum contacts factors it already uses, Parts II, III, IV, and V argue that the Court should change how it handles those factors. In Part II, I suggest a way to restate the purposes animating the minimum contacts doctrine. In Part III, I examine the Court's chaotic treatment of mental state in its minimum contacts cases and suggest that its jurisprudence may be improved through the use of clearer distinctions among various types of mental state, greater consistency in identifying the focal point of the mental state inquiry, and the adoption of a purely objective standard.

Like criminal punishment imposed by the state on an individual, which can range in severity from probation to capital punishment, the burden a state imposes on a defendant when it requires her to defend away from home can vary dramatically in severity. In Part IV, I maintain that the Court needs to recognize the significance of the wide variability in the potential severity of this burden by requiring proportionality, as it does with criminal punishment, between the degree of burden imposed on the defendant and the degree of justification required by the minimum contacts test. In other words, the minimum contacts test should openly adopt a relative rather than an absolute standard, a sliding scale in which the degree of justification required varies in direct proportion to the degree of burden imposed. Such a proportionality requirement would compel the Court to examine in detail the practical impact on the defendant of the forum's assertion of jurisdiction, something it does not presently do.

An important remaining issue is how to integrate desert and utility, with their distinct perspectives and criteria, into a single minimum contacts test. In Part V, I address this issue and argue that the Supreme Court's failure to acknowledge and address the basic tension between desert and utility is a primary source of incoherence in its minimum contacts cases. I urge the Court to address this issue openly and to use some form of mixed theory to balance the tension that can arise between,, desert and utility, as scholars have done to accommodate a similar tension between desert and utility in criminal law. In Part V, I propose a possible mixed theory that I suggest makes the best sense of the ingredients found in current minimum contacts doctrine.

1. DESERT AND UTILITY

   This Essay claims that substantive criminal law concepts such as desert, mens rea, and proportionality offer a vantage point from which to gain a fresh perspective on why the minimum contacts doctrine seems so muddled and how it might be clarified. It relies on a seemingly implausible analogy--a comparison that at first blush seems more arbitrary than apt. We are accustomed to using these criminal doctrines to grapple with issues such as the death penalty and the imposition of harsh prison terms on drag offenders. Initially, it seems a bit awkward to draw on them in addressing less dramatic issues such as the appropriateness of requiring a New York Audi dealer to defend a tort action in Oklahoma or a Michigan Burger King franchisee to defend a breach of contract action in Florida. If one is to choose an area of substantive law from which to bootleg ideas to aid minimum contacts doctrine, civil subjects such as tort or contract law would seem more fitting.(6)

   Indeed, there are good reasons to be wary of a comparison between criminal law and minimum contacts. The criminal law doctrines discussed in this Essay are substantive, while minimum contacts is quintessentially procedural. These criminal doctrines are used to determine the imposition of criminal liability. The minimum contacts test, by contrast, does not directly address the ultimate imposition of liability, either criminal or civil. It simply controls whether an individual may be exposed to potential civil liability by being required to participate in a lawsuit. Finally, substantive criminal law doctrines and the minimum contacts test exist and function in two distinct legal arenas, criminal and civil. They share some common features, such as the same evidence rules, but they also have many important differences, such as the ultimate sanctions available and distinct burdens of proof.

   Despite these seeming incongruities, and perhaps in large measure precisely because of them, these comparisons between minimum contacts doctrine and criminal law demonstrate the need to look in a fresh way at a doctrine quite familiar in its failings. The novel and seemingly arbitrary connection between criminal law doctrines and minimum contacts goes to the heart of the Supreme Court's fumbling in its minimum contacts cases. It reveals an uncanny and instructive resemblance between the assessment of substantive criminal liability and the procedural calculus involved in determining a just and pragmatic approach to state court jurisdiction over nonresident defendants.

   On reflection, the resonance between these two seemingly disparate areas of law is not so surprising. Both areas deal with the exercise of government power over an individual and the need to resolve a tension between the one and the many, the individual and the state. The resemblance in legal doctrines responding to these common issues reflects not only shared intuitions about how government should treat individuals but also the application of general philosophical viewpoints that may be applied to many legal rules, not just those dealing with criminal punishment and jurisdiction. Both criminal desert theory and minimum contacts doctrine, for example, emphasize a reciprocity between the benefits received by an individual from a government and the burdens that a government may legitimately impose on an individual. This shared focus simply reflects the application in two quite different contexts of what political philosophers describe more generally as a "benefaction principle."(7) And the competitions one finds between desert and utility in criminal law and minimum contacts are simply instances of the rivalry one finds in moral philosophy and law between deontological, rights-oriented perspectives and consequentialist, utilitarian perspectives.(8) The advantage of analogizing to criminal law is that these tensions are more dramatically and clearly illustrated and our moral intuitions about desert and proportionality more clearly developed in the criminal than in the jurisdictional setting.

   1. Current Doctrine

      To assess my argument for the explanatory power of the criminal law analogy in clarifying the muddle of minimum contacts doctrine, it is necessary first to examine that muddle. To help my civil procedure class track the minimum contacts test's expansion, I ask them to keep a cumulative list of factors that the Court claims to use in determining the validity of a state court's assertion of jurisdiction over a nonresident defendant. When finished, the list typically looks like this:

      FIGURE 1. MINIMUM CONTACTS ANALYSIS CURRENT FACTORS Defendant's Conduct Location of Witnesses Benefits to Defendant Defendant's Mental State Relation of Claim to Defendant's Effects of Defendant's Conduct Conduct Conduct of Intervening Actors Defendant's Interest Judicial System's Interest * Convenience * Efficiency Plaintiff's Interests States' Shared Interest * Convenience * Furthering social policies * Effective relief Other...