Rethinking Personal Jurisdiction

Abstract

This article sets out a pragmatic justification for the main features of current personal jurisdiction doctrine. According to that justification, personal jurisdiction rules minimize litigation costs and bias. This approach to personal jurisdiction helps resolve difficult and open jurisdictional issues, such as the scope of general jurisdiction and the validity of jurisdiction based on the stream-of-commerce theory. This article then explores the empirical assumptions underlying this pragmatic explanation for current doctrine and shows how doctrine should change if those empirical assumptions were incorrect. For example, the Supreme Court’s “purposeful availment” requirement is justified only if the danger of bias against out-of-state litigants is high. If that danger were low, it would make sense to allow plaintiffs to sue in their home states, even if defendants had not purposefully availed themselves of the benefits of that state.

Keywords: jurisdiction, personal jurisdiction, bias, purposeful availment, litigation costs