How Congress Should Fix Personal Jurisdiction
Stephen E. Sachs
Duke University School of Law
Northwestern University Law Review, Forthcoming
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are from the same state, that state's courts are open. If not, the federal courts are. But while most hard jurisdictional problems involve states, the federal courts still follow state jurisdictional rules. This is a mistake, and also something we can change.
Following the McIntyre plurality's invitation, this Article suggests a system of nationwide federal personal jurisdiction, erasing the state lines that separate federal courts. In a federal forum, the court’s authority is usually clear and its location largely irrelevant -- letting us address the parties' convenience through well-crafted venue rules, backstopped by due process guarantees of fundamental fairness.
The Article goes on to develop draft legislative language addressing the new system's consequences for venue, choice of law, appeal rights, and so on. The goal isn't to defend one specific proposal, but to encourage new proposals and, eventually, to change the direction of the debate. Scholars should spend more time thinking about the jurisdictional rules we would write for ourselves -- which the Constitution actually lets us do, at least for federal courts. Only Congress can fix personal jurisdiction; we should start telling it how.
Number of Pages in PDF File: 58
Keywords: personal jurisdiction
JEL Classification: K4, K40, K41Accepted Paper Series
Date posted: January 20, 2013 ; Last revised: September 17, 2013
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