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How Congress Should Fix Personal Jurisdiction

Stephen E. Sachs

Duke University School of Law


Northwestern University Law Review, Vol. 108, No. 4, pp. 1301-1354 (2014)

Personal jurisdiction is a mess, and only Congress can fix it. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. With these goals in conflict, each new fact pattern has pulled 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 today's law, thinking about places instead of persons, sows unnecessary confusion by obliging federal courts to follow state jurisdictional rules. This is a mistake, and something we can change. Following the invitation of a recent Supreme Court plurality, this Article suggests a system of nationwide federal personal jurisdiction, relieving federal courts of their jurisdictional dependence on state borders. In a federal forum, the court usually has undoubted authority over the parties--whose convenience can be addressed through well-crafted venue rules, backstopped by due process guarantees. Because our procedural rules have grown up in dependence on state jurisdiction, the Article goes on to draft legislative language addressing the new system's consequences for venue, choice of law, appeal rights, and other related issues. The Article's goal isn't to defend one specific proposal, but to encourage a variety of 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: 54

Keywords: personal jurisdiction

JEL Classification: K4, K40, K41

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Date posted: January 20, 2013 ; Last revised: December 28, 2014

Suggested Citation

Sachs, Stephen E., How Congress Should Fix Personal Jurisdiction (2013). Northwestern University Law Review, Vol. 108, No. 4, pp. 1301-1354 (2014). Available at SSRN: https://ssrn.com/abstract=2203248 or http://dx.doi.org/10.2139/ssrn.2203248

Contact Information

Stephen E. Sachs (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)
HOME PAGE: http://law.duke.edu/fac/sachs

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