GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Forthcoming

Abstract

A new paradigm for conceptualizing the doctrine of personal jurisdiction is long overdue. In the 19th century the U.S. Supreme Court established a firm territorialist approach to jurisdiction befitting a geographically spread-out country with many local micro-economies. The more flexible “minimum contacts” test articulated in 1945 by International Shoe v. Washington ushered in a 20th century vision responding to increased automotive transportation and national industrial production. But now, at least three decades into the Internet and information economy era, the U.S. Supreme Court has yet to land on a coherent jurisdictional framework for the new century.

It’s not for want of trying. Since 2010, the Supreme Court has decided at least seven major jurisdiction cases. But all seven have resulted in conceptually problematic resolutions, and in two of them—including the most recent, Mallory v. Norfolk Southern Railway—the Court could not even muster a true majority rationale. Indeed, even the basic purpose of jurisdictional law—is it to ensure fairness to defendants or is it to prevent states from encroaching on other states?—has remained murky since the very beginning. And as Mallory makes clear, the Court’s confused and bi-furcated approach regarding the purpose of jurisdictional law can lead to very different outcomes in particular cases.

Fundamentally, we need to recognize that “minimum contacts” has become an unsatisfying approach in a 21st century dominated by virtual social life, deterritorialized goods and effects, and the ability of both large industrialists and individuals to reach consumers anywhere anytime. In such a world, “contacts” with a territorially-based entity does not capture the reality of the underlying transaction.

Instead, this Article proposes a distinct framework for analyzing jurisdiction cases, one based on community affiliation. The real question underlying jurisdiction, I argue, is whether a legal dispute sufficiently implicates a community such that it is appropriate for that community to assert dominion over the dispute without unduly encroaching on the sovereignty of other states. And though the answer to that question is surely not always beyond dispute, it at least focuses attention on the core issues that should determine a jurisdictional inquiry.

My argument in favor of this approach proceeds in four Parts. Part One focuses on the problem of territoriality as the basis for jurisdiction, emphasizing the various ways in which a territorialist approach fails to capture the reality of 21st century social life and commercial activity. Part Two examines the U.S. Supreme Court’s conceptual confusion about the purpose of jurisdictional doctrine and argues for an approach based on the connection between the case and the community, rather than the due process rights of defendants. Part Three traces the development of the Supreme Court’s general v. specific jurisdiction dichotomy and argues for a less categorical approach. Finally, Part Four sets forth a set of principles that should guide the future of jurisdiction. And while these principles do not “solve” all difficult jurisdictional issues, they do provide a more coherent analytical framework for courts as they wrestle with jurisdictional conundrums in the 21st century.

GW Paper Series

2024-21

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