Personal jurisdiction sits in a state of flux. A decade-and-a-half of renewed Supreme Court engagement—with another case on the way this Term—has changed some things, failed to clarify longstanding uncertainty, and sowed new confusion. The originalist turn has reached personal jurisdiction, with arguments for returning to our jurisdictional origins.
Paul Schiff Berman predicts The Future of Jurisdiction. He places the current era in an historic evolution of American society and jurisdictional doctrine and revises jurisdictional rules to better fit the needs and reality of the 21st century. He offers four key insights a about personal jurisdiction; those insights lay the foundation for his new approach.
Insight # 1: The Current Transition Period
Berman divides the law of personal jurisdiction into four epochs.
Pennoyer v. Neff instantiated the territoriality that defined 19th-century America, in which geographic loyalties ran to the local community and the next town or city block constituted alien territory; defending in another state imposed unreasonable psychic, as well as physical and practical, burdens. But rapid societal change outstripped Pennoyer—advances in transportation and communication and centralization of economic and political activities shrank the physical and psychic distances of interstate travel. Courts responded with a series of legal fictions about in-state presence and consent, allowing them to assert jurisdiction over out-of-state defendants while adhering to Pennoyer’s insistence that courts lack authority over persons outside the state.
International Shoe recognized that Pennoyer’s strict territorial approach failed in modern society. The Court created a new, more flexible jurisdictional framework, establishing as doctrine the effective analysis under the legal fictions—whether the defendant had sufficient connections to the state and whether the lawsuit concerned activity occurring in that state. But Shoe encountered the same problems as Pennoyer—changes in technology, expansions of corporate activity, and changes to the nature and scope of economic activity stressed the flexibility of this vague standard. Shoe required frequent judicial intervention that failed to reach consensus on the rules or concepts. (The Supreme Court has had two discrete periods of extensive activity in this area—1977-90 and 2011-Present). Globalization of business and supply chains and the rise of online commercial and communications activity have sped the destabilization of the Shoe regime.
Berman defines the current era as one of transition, comparable to the decades of legal fictions between Pennoyer and Shoe. Judges apply the Shoe formulation while recognizing it does not reflect the new societal reality.
Insight # 2: Dormant Commerce Clause as the Answer to Doctrinal Tension
Pennoyer and Shoe ground jurisdictional limits in due process. But the Court has never resolved a tension over whether due process protects individuals against the burdens and unfairness of distant litigation or whether it limits the power of courts in one state to interfere with the powers of a sister state or whether it does both (what Justice White described as the “Due Process Clause, acting as an instrument of interstate federalism”). Modern technology and communications reduce (if not eliminate) most burdens of distant litigation. Courts thus should focus on the real question—whether the state asserting jurisdiction has sufficient connection to the underlying events or to the litigants.
That conceptual change prompts a constitutional change. Rather than due process, jurisdictional limits should be analyzed under the dormant Commerce Clause, which asks the right question—whether one state’s exercise of dominion over a dispute unduly infringes on the adjudicative power of another state and whether one state’s exercise of jurisdiction might produce intolerable inconsistent regulation for interstate defendants. Reflecting Justice Alito’s solo concurrence in Mallory, Berman argues that the dormant Commerce Clause allows courts to analyze the core question rather than fictional arguments about burdens and consent.
Insight # 3: The Continuum of General and Specific Jurisdiction
The one area in which recent cases have produced a certain doctrinal sea change involves the distinction between general and specific jurisdiction. By the 1980s (when the Court’s first decision wave ended), they existed on a rough continuum—the fewer the defendant’s state contacts, the more important that those contacts relate to the lawsuit to create specific jurisdiction; the greater the defendant’s state contacts, the less important that those contacts relate to the lawsuit to create general jurisdiction.
But the Court has rejected that continuum in favor of a sharp divide between the forms of jurisdiction. General jurisdiction exists where the defendant is “essentially at home,” likely limited to an individual’s domicile and an entity’s place of incorporation and principal place of business. This change requires an expansion of specific jurisdiction. That places pressure on the vague question of “relatedness” between contacts and claim, because an out-of-state defendant’s unrelated contacts never establish jurisdiction.
Insight # 4: Community Affiliation
Recent cases introduce two new concepts—“affiliations” replacing contacts and “community” replacing territorial sovereign. Whether the linguistic change was intentional, it offers a preferable rubric. Rather than counting contacts, courts ask whether “the community asserting dominion ha[s] sufficient connection to the parties or the dispute so as to justify that assertion.” Berman illustrates with two Fourth Circuit decisions rejecting jurisdiction where Virginia (the state in which the suits were brought) lacked the necessary community affiliations—a Spanish citizen and a Spanish city fighting over the use of the city’s name and a local Connecticut newspaper writing about Connecticut individuals.
Seven Principles of a New Approach
Berman acknowledges that we cannot codify a jurisdictional standard “that anticipates all permutations of human activity and provides a single definitive answer.” Any grand theory “would instantly become obsolete as new advances in technology, science, communications, and transportation keep galloping on ahead of the lumbering efforts of law to catch up.” He instead offers seven principles as a framework to handle the unique problems of online interaction, deterritorialized data, and global supply chains.
I list the principles here; the reader should see Berman’ full explanation, elaboration, and application: 1) Focus on community affiliation rather than sovereign contacts; 2) Ask whether the community can legitimately exercise dominion over the lawsuit rather than whether jurisdiction unfairly burdens the defendant; 3) Treat general and specific jurisdiction as points on a continuum of relatedness and quantity of contacts; 4) Disregard the territorial location of data or servers; 5) Consider place of of incorporation as relevant but not dispositive; 6) Consider the size, sophistication, and economic breadth of a defendant; and 7) Consider effects of conduct on a community even if the actor is not otherwise affiliated with that community.
Berman’s article exemplifies the best normative procedural scholarship—exposing where courts have gone astray and proposing a new jurisprudential regime. Written in clear and engaging prose, Berman offers a great read for the audience and an important guide for the courts.
