Reconceiving Personal Jurisdiction: Sovereignty, Authority, and Individual Rights

54 Pages Posted: 13 Feb 2015

Date Written: February 2015

Abstract

This article re-examines the subject personal jurisdiction from the ground up, taking into account four recent decisions by the Supreme Court and reconciling them with the political theory of authority. Most of the academic commentary on the recent decisions is critical. This article, instead, tries to reconstruct from them into a coherent theory of personal jurisdiction that reconciles the conflicting principles of sovereignty and individual rights. Sovereignty speaks at the national level in terms of the assertion of power by the government representing the collective will. Individual rights operate at the opposite extreme, protecting individual interests. Both principles have been invoked to justify the law of personal, reflecting its roots in two different constitutional sources of restraints on personal jurisdiction: the Full Faith and Credit Clause, which speaks to relations among states, and the Due Process Clauses in the Fifth and Fourteenth Amendments, which protects natural and artificial persons. The article reconciles these conflicting principles and conflicting sources of law by relying on modern political theories of legitimate authority. These theories are deployed to justify the prevailing distinction between general and specific jurisdiction, re-emphasized in the recent decisions of the Supreme Court. As a result of this analysis, this article proposes a rule for close cases of personal jurisdiction — allowing nonresident individuals and corporations to be free of state power if they have taken feasible precautions against being subjected to it. This allows individuals and firms to escape the power of a state with which they do not want to have any affiliation. It also avoids the problem, first identified in International Shoe Co. v. Washington, that sufficient contacts with the forum are not a matter of “a little more or a little less.” Instead, they mark a qualitative difference between acts that constitute submission to jurisdiction and acts that do not. The article then offers an analysis of the recent decisions and why they are, in the main, correct, and why forum selection clauses deserve the deference that they have received, certainly in litigation between business firms.

Suggested Citation

Rutherglen, George A., Reconceiving Personal Jurisdiction: Sovereignty, Authority, and Individual Rights (February 2015). Virginia Public Law and Legal Theory Research Paper No. 13, Available at SSRN: https://ssrn.com/abstract=2564300 or http://dx.doi.org/10.2139/ssrn.2564300

George A. Rutherglen (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-7015 (Phone)
434-924-7536 (Fax)

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