Why properly construed due process limits on personal jurisdiction must always trump contrary treaty provisions.

• Author: Cox, Stanley E.
• Position: Symposium: Could a Treaty Trump Supreme Court Jurisdictional Doctrine?

1. INTRODUCTION

   Let me begin by thanking Professor Borchers for inviting me to contribute to this Symposium on the interrelation between constitutional personal jurisdiction protections and judgment treaty provisions. Professor Borchers is a bold Conflict of Laws writer, whose works I admire and always find stimulating. One of the goals of my essay is to demonstrate that I have read and found Professor Borchers' ideas significant. I will do this in the classic fashion one academic demonstrates his respect for another academic's thoughts. Having found Professor Borchers' thoughts significant, I will significantly disagree with them.

   Professor Borchers asks us to assume, hypothetically, that the United States has entered into a treaty whose provisions would violate United States constitutional protections relating to personal jurisdiction.(1) This is no idle hypothetical, as I shall explain below. Professor Borchers then asks us whether the treaty provisions would trump the Constitution.(2) I agree with the majority of my colleagues that a constitutional provision always takes precedence over a treaty, provided that the constitutional provision is of the sort meant to guarantee individual rights against majority infringement or against arbitrary exercises of governmental power.

   This last qualification, however, is at the heart of the dispute I have with Professor Borchers on personal jurisdiction theory more generally. Should United States Supreme Court personal jurisdiction case law protect against arbitrary governmental action? Should we, in short, have constitutional protection for personal jurisdiction? Professor Borchers is on record with a resounding "no" to this last question.(3) Although he says it is not necessary to go so far in arguing the treaty issues before us for this Symposium,(4) I have my doubts. The hypotheticals Professor Borchers puts before us of the conflict between constitution and treaty seem to be precisely designed to highlight deficiencies in our constitutional personal jurisdiction case law. It is my suspicion that, subconsciously or consciously, Professor Borchers has set his treaty problem in order to reinforce his arguments that there should be no constitutional doctrine of personal jurisdiction. If so, I accept his implied challenge. In this Article, I defend the idea of constitutional limits on personal jurisdiction, and the concomitant idea that such limits may be insisted upon even if the rest of the world does not share the values which inform our constitutionally-based limits.

   In order to defend unilateral constitutional personal jurisdiction values, I am required to make three related arguments. First, I argue that constitutional protections are necessary to protect against unreasonable assertions of personal jurisdiction, which might otherwise be authorized.(5) Second, I argue that the judiciary is peculiarly empowered to protect against these unreasonable assertions of personal jurisdiction.(6) Third, I briefly identify constitutional principles or values which properly should guide the Court in defining proper limits for personal jurisdiction.(7) In the remainder of this Introduction, I summarize my main points before developing them in greater detail in the subsequent Parts.

   Current United States case law construing personal jurisdiction limits is to some extent an indefensible muddle. Defending Court-defined reasonableness limits is therefore no easy task. I do not defend the current constitutional balances the Court has drawn. Rather, my goal is more limited, but also more basic. I defend only the idea that properly construed constitutional limits on personal jurisdiction cannot be trumped by treaty provisions.

   Professor Borchers deflects attention from this issue by placing emphasis on the conflict between treaty provisions and the Court's worst interpretations of personal jurisdiction limits.(8) I, like most members of this panel, have criticized the Court quite strongly for misdrawing due process lines.(9) But the Court's miscues should not be used as a strawman for attacking the idea of constitutional limits per se. It is no good, in answering this basic question of whether there should be constitutional limits, to rail against World-Wide Volkswagen Corp. v. Woodson(10) for not allowing jurisdiction where there is blood on the ground,(11) or to criticize Burnham v. Superior Court(12) for approving what a majority of European nations have defined as unreasonable.(13) Misguided Court pronouncements do not prove, however, that some things should not be held unreasonable. My conclusion is that some assertions of personal jurisdiction are indeed unreasonable and should be held to be such as matters of constitutional law.

   A second related argument is whether the Court has true power to define the constitutional limits of personal jurisdiction. Should it have the final word, as arbiter of the meaning of the Constitution, as to what is, and what is not, an unreasonable assertion of personal jurisdiction? There are at least two avenues, different from Court-based constitutional interpretation, which might be argued to support limits on personal jurisdiction in the United States system. First, the Constitution itself might be construed to place the power to define personal jurisdiction limits in other branches of government, especially for foreign judgments. At most, the Court's pronouncements would then be default guidance, operating only for the time being, until the other branches have their final say. Secondly, and alternatively, the Constitution might be seen as only borrowing from precepts of international law for its purported due process content. In such situations, international law principles might continue to trump the Court's interpretations of these principles, especially in the context of foreign judgments. Unambiguous, multilateral treaty pronouncements might leave the Court, under this theory, with no room to speak contrary to the international law.

   I reject both arguments. First, I argue that the personal jurisdiction values in the United States Constitution must be yardsticks for measuring whatever the United States legislature or executive might say should be the rules. Second, I argue that international law principles are too weak to provide protection for personal jurisdiction rights, and that our constitutional protections concerning jurisdiction have sources independent of the law of nations. These constitutional mandates must be followed by our courts in regard to recognition of foreign judgments.

   As to the content of unilateral personal jurisdiction rules which cannot be trumped, I argue that personal jurisdiction protections are derived from principles of limited sovereignty imbedded in our Constitution. These principles protect against enforcement of judgments obtained either without a defendant's meaningful voluntary affiliation with the forum or without the defendant's purposefully directed actions towards the forum.(14) The U.S. Constitution protects defendants from having to appear and defend on the merits, when a sovereign with whom the defendant has no significant relations, ties, or connections nevertheless tries to adjudicate the defendant's rights. Personal jurisdiction under such circumstances would give the sovereign rendering the judgment illegitimate power over the defendant. The principles of limited sovereignty, which are at the heart of our constitutional government, prevent recognition of such arbitrary and non-consensual power.

   In short, I defend in this Article International Shoe's minimum contacts test as the constitutionally required standard for measuring all assertions of personal jurisdiction,(15) including any assertions by foreign sovereigns which might be approved for recognition via a judgments recognition treaty. What this means in a judgments treaty context is that a federal treaty can replace the forum state's enforcement power only for judgments which satisfy Court approved threshold limits of personal jurisdiction. A treaty provision cannot trump a properly construed constitutional provision prohibiting personal jurisdiction. The remainder of this Article elaborates the points of the previous paragraphs.

2. CONSTITUTIONAL LIMITATIONS ON JURISDICTION ARE NECESSARY, BECAUSE WITHOUT THEM UNREASONABLE ASSERTIONS OF PERSONAL JURISDICTION COULD BE AUTHORIZED

   One need look no farther than the Lugano(16) and Brussels(17) Conventions to find support for the idea that some assertions of personal jurisdiction are unreasonable.(18) Under Article 3 of those treaties, certain methods of obtaining personal jurisdiction are defined to be exorbitant.(19) When the litigation involves a defendant domiciliary of a Member State, such methods cannot support a judgment entitled to recognition and enforcement.(20) The unreasonable bases for personal jurisdiction are basically of three types: (1) using unrelated property to support unlimited jurisdiction;(21) (2) using plaintiff's connection, standing alone, to support jurisdiction over the defendant;(22) and (3) basing jurisdiction on the defendant's transient presence accompanied by receipt of litigation papers.(23)

   Two of these three types of jurisdiction also would be unconstitutional under the United States Supreme Court's current personal jurisdiction interpretations.(24) Regarding these two methods of obtaining jurisdiction--use of unrelated property and use solely of plaintiff connectedness--one might argue that at least these two methods are good candidates for shared opprobrium, such as I argue should be protected against via unilateral constitutional protection.

   If everyone agrees that some methods are suspect, however, why would there be a need for constitutional protections? Will not legislators and executives always negotiate around these suspect methods? Well, unfortunately, these suspect methods continue to exist.(25) More pertinently to the treaty situation...