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What Personal Jurisdiction Doctrine Does—And What It Should Do
Katherine Florey*
Abstract
Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court’s assertion of power over a particular defendant and case may have two undesirable consequences. First, the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second, a court’s jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign’s substantive standards apply to particular conduct. Personal jurisdiction, to some extent, addresses both of these issues. But with respect to both goals, it has competition. Multiple protections, including venue and forum non conveniens, help to ensure that defendants are not unfairly burdened by litigation. An even greater variety of doctrines, such as dormant commerce clause protections, choice-of-law restrictions, and limits on punitive damages, restrict the ability of states to regulate distant conduct and thereby exceed their sovereign boundaries. In light of these additional protections, this Article suggests reorienting personal jurisdiction toward functions not well served by other doctrines, and proposes three possible goals that meet this standard: providing redundant protections to foreign defendants, screening out cases likely to create difficult questions of choice-of-law constitutionality, and adding the factor of purposeful availment to the analysis of defendant fairness. Surveying the four personal jurisdiction cases the Court has recently decided, this Article finds that they have addressed the first of these goals to some extent, but have slighted the second and third.
| I. Introduction | 1202 |
| II. The Historical Goals of Personal Jurisdiction Doctrine | 1208 |
| A. The Development of the Minimum Contacts Test | 1208 |
| B. The Emergence of the Fairness and State Sovereignty Rationales | 1210 |
| C. The Sovereignty Rationale in the Post-McIntyre Era | 1213 |
| III. Other Doctrines That Serve Personal Jurisdiction’s Goals | 1215 |
| A. Doctrines That Protect Defendant | 1216 |
| 1. Venue Requirements | 1216 |
| 2. Transfer of Venue | 1218 |
| 3. Forum Non Conveniens | 1220 |
| B. Limits on State Overreaching | 1222 |
| 1. Dormant Commerce Clause Restrictions | 1224 |
| 2. Hague and Choice-of-Law Limits | 1227 |
| 3. Subconstitutional Choice-of-Law Rules | 1229 |
| 4. Punitive Damages and Out-of-State Conduct | 1230 |
| 5. The State Sovereignty Implications of Venue Requirement | 1232 |
| IV. What’s Left for Personal Jurisdiction to Do? | 1233 |
| A. Needed Redundancy for Foreign Defendants | 1234 |
| B. Filling Gaps Inadequately Addressed by Other Doctrines | 1237 |
| 1. Preventing Borderline Applications of Forum Law | 1238 |
| 2. Adding the Purposeful Availment “Bargain” to Fairness Analysis | 1242 |
| V. Personal Jurisdiction’s Functions and the Court’s Current Direction | 1244 |
| A. Redundant Protections and Foreign and Domestic Defendants | 1246 |
| B. State Sovereignty and the Screening Function | 1249 |
| C. The Court’s Sidelining of Purposeful Availment | 1251 |
| 1.The Emergence of Purposeful Availment | 1251 |
| 2. McIntyre and Purposeful Availment | 1253 |
| 3. Daimler and the Continuum vs. Discrete Categories Issue | 1256 |
| 4. Walden: Undermining the Burger King View of Purposeful Availment? | 1259 |
| VI. Conclusion | 1264 |
* Professor of Law, University of California, Davis, School of Law. I wish to thank John Patrick Hunt, Margaret Johns, Courtney Joslin, Brian Soucek, and the participants in the U.C. Davis faculty “schmoozes” for comments on this Article, and Anne Badasci for first-rate research assistance. I also thank UC Davis School of Law, particularly Dean Kevin Johnson and Associate Dean Vikram Amar, for providing generous financial support for this project.
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I. Introduction*
Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine, which has been called “like an M.C. Escher print,”1 “an irrational and unpredictable due process morass,”2 and “a sort of jurisdictional stew.”3 Notably, the complicated nature of personal jurisdiction in the United States is at odds with the practice in most other parts of the world, where there generally exists a clear delineation between judicial jurisdiction—that is, the ability of a court to exercise power over particular litigants and subjects—and legislative jurisdiction, which is a sovereign’s ability to substantively regulate conduct.4 In the United States, however, the line between legislative and judicial jurisdiction is muddled, and personal jurisdiction is just one of a patchwork of overlapping doctrines that govern the
limits of both.5
Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court’s assertion of power over a particular defendant and case may have two undesirable consequences.6 First, the burden on the defendant of having to appear before a certain type of court or in a particular location
1. Donald L. Doernberg, Resoling International Shoe, 2 Tex. A&M L. Rev. 247, 247 (2014).
2. Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1302 (2014).
3. Mary Twitchell, Burnham and Constitutionally Permissible Levels of Harm, 22 Rutgers L.J. 659, 666 (1990).
4. See Restatement (Third) of Foreign Relations Law of the United States pt. 4, intro. note (Am. Law Inst. 1987) (delineating differences between the two forms of jurisdiction). Moreover, spheres of judicial and legislative jurisdiction are, in many countries, specified with a fair degree of explicitness. For example, if one is a victim of a tort in a European Union country, one may sue either in the country where the defendant is domiciled or in that where the tort occurred. See European Communities—European Free Trade Association: Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Arts 2-3, Sept. 16, 1988, O.J. (L 319) 9, reprinted in 28 I.L.M. 620 (1989). The law applied, unless the case falls into one of a few narrow exceptions, will be the law of the country “in which the damage occurs.” See id. at Art 3.
5. For a discussion of the interrelationship of the various doctrines, see infra Part II.
6. See Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the “Interwebs,” 100 Cornell L. Rev. 1129, 1153 (2015) (discussing fairness and state sovereignty rationales).