2016] THE DORMANT COMMERCE CLAUSE 123
Have you ever been to a “judicial hellhole?”1 It is a place where judges
hate summary judgment, and juries love to give money to old ladies burned
by hot coffee. Or at least that is what the defense bar will tell you. The
plaintiffs’ bar will tell you that these dens of iniquity are actually safe havens—
places where the little guy can fight a big corporation that forgot to put a
safety shield in front of a spinning blade. Whether hellhole or haven, there is
one issue that both sides can agree on: forum matters.
Because forum matters, plaintiffs understandably search for the most
advantageous forum in which to bring their suit. A major factor in forum
selection is the law of personal jurisdiction, a body of law based in large part
on the Fourteenth Amendment’s Due Process Clause.2 The Due Process
Clause means many things, but at a minimum, it guarantees litigants the
freedom from random or irregular adjudication.3 In the context of personal
jurisdiction, this means that defendants may not be hauled into court in a far-
off state simply because a plaintiff has chosen to sue them there. In the
Supreme Court’s opinion, a judicial system in which a plaintiff has unfettered
discretion to file suit in dozens of different states, many of them thousands of
miles away, is not an orderly system of law.4
Even though the Due Process Clause is an essential component of
personal jurisdiction law, it is odd that it seems to be the only component. To
the extent that a state’s personal jurisdiction law discourages companies from
doing business in a state (and thus subjecting themselves to jurisdiction
there), the Dormant Commerce Clause—which renders unconstitutional
state laws that discourage outsiders from engaging in commerce in a
particular state—should have much to say about personal jurisdiction.
Indeed, in the first part of the 20th century, courts routinely applied the
Dormant Commerce Clause to limit state assertions of personal jurisdiction.5
After standing in the background for so long, it is high time for the
Dormant Commerce Clause to step forward. In recent years, the Supreme
1. For a list of the leading “hellholes,” see JUDICIAL HELLHOLES, http://www.judicialhell
holes.org (last visited September 16, 2016).
2. U.S. CONST. amend. XIV.
3. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (holding that a court’s
assertion of authority over a party must comport with “traditional notions of fair play and
substantial justice” (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940))).
4. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (explaining that
the Due Process Clause “gives a degree of predictability to the legal system that allows potential
defendants to structure their primary conduct with some minimum assurance as to where that
conduct will and will not render them liable to suit”).
5. See, e.g., Denver & Rio Grande W. R.R. Co. v. Terte, 284 U.S. 284, 287 (1932); Michigan
Cent. R.R. Co. v. Mix, 278 U.S. 492, 495 (1929); Davis v. Farmers’ Co-Op. Equity Co., 262 U.S. 312,
315 (1923); Panstwowe Zaklady Graviozne v. Auto. Ins. Co., 36 F.2d 504, 506 (S.D.N.Y. 1928).