Inventing the Future of Personal Jurisdiction Analysis: The World Beyond the Minimum Contacts Analysis
Posted: 7 Dec 2014 Last revised: 12 Aug 2015
Date Written: December 5, 2014
Is minimum contacts jurisdiction past its time? In a world of Internet-based commerce and transnational civil litigation, does the International Shoe-based minimum contacts analysis provide a meaningful platform on which to build? If not, what can and should replace minimum contacts analysis as the protector of the defendant’s due process rights? And, should we still operate on the presumption that personal jurisdiction should be allowed to the extent permitted by the constitutional parameters of Pennoyer and Shoe or is there a different framework which is content to be more specific and instructive at the risk of not reaching as far?
This article examines these questions in three distinct parts. First, in part I, as a foundation for later arguments, the article examines a brief history of time in personal jurisdiction terms, considering first how the current fairness-based doctrines evolved from territoriality and exploring how the outdated notions of Pennoyer have evolved into the twenty-first century. Then the article considers the courts’ response to territoriality through the creation of the minimum contacts test in International Shoe and the evolution of contacts-based analysis, which follows the historical path of industrialization and corporate growth.
In part II, the article argues that the minimum contacts test is obsolete in changing times, and “stands on the cutting edge of tradition.” In support of the argument, the article examines the United States Supreme Court’s struggles with personal jurisdiction in the context of transnational litigation in Nicastro and Goodyear. The article also argues the need for change is demonstrated by the courts’ ongoing confusion over Internet-based personal jurisdiction, examining the courts’ constantly out of date rhetoric on technological change. Also, the article argues the growing desire of litigants to shop international, non-American forums serves as an impetus for change in the American doctrine.
Lastly, part III offers an alternative to minimum contacts test, a Federal rule to be developed through the rule-making process. A Federal rule on personal jurisdiction could follow the template of state specified-act long-arm statutes, allowing better notice to the litigants and more predictable structures for those engaging in the national market while maintaining some of the flexibility of the current doctrine. The new rule could also be influenced by European and United Kingdom jurisdictional statues which include a role for the plaintiff’s choice of forum. Perhaps most importantly, a rule on personal jurisdiction would allow the Rules Drafting Committee the opportunity to consult experts on existing and forthcoming change and review jurisprudential needs from a prospective frame. The Rules Drafting Committee can act preemptively, taking back rule change from the courts, and providing wide open space for expertise and commentary.
In conclusion, this article argues that the time has come for the codification of the minimum contacts test, as demonstrated most recently by the Court’s willingness to engage in judicial rule-making in the current pleadings cases. Now is the time to act to get ahead of the next procedural decision by the Supreme Court which changes the Federal Rules absent the appropriate process.
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