If Corporations Are People, Why Can’t They Play Tag?

42 Pages Posted: 6 Feb 2015 Last revised: 28 May 2016

See all articles by Cody Jacobs

Cody Jacobs

Boston University School of Law

Date Written: February 9, 2015

Abstract

The Supreme Court’s decision in Burnham v. Superior Court — despite producing a splintered vote with no opinion garnering a majority of the Court — made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient or “tag” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and used to be the primary method for determining whether an out of state defendant could be haled into a court. While Burnham held that tag jurisdiction remained constitutionally valid, the court split on the justification for allowing this form of jurisdiction, with four Justices approving the practice under an originalist methodology, and four others approving it based on contemporary notions of fairness.

This article argues that both the originalist and fairness-based tests proposed by the principal opinions in Burnham support allowing the assertion of tag jurisdiction over corporations and other entity defendants through in-state service on their officers. This article shows that at the time of the Fourteenth Amendment’s ratification, corporations were often subject to personal jurisdiction based only on their officers’ physical presence in a forum when served with process. The article also demonstrates that the fairness considerations that led four Members of the Court to endorse tag jurisdiction in Burnham apply with even greater force to modern corporations because of their greater ability to take advantage of the protections and services offered by states outside of their own. Finally, the article examines how the application of tag jurisdiction to corporate entities would be in accord with general trends in constitutional law affording corporations rights equivalent to those of natural persons.

Suggested Citation

Jacobs, Cody, If Corporations Are People, Why Can’t They Play Tag? (February 9, 2015). 46 N.M. L. Rev. 1 (2016), SUNY Buffalo Legal Studies Research Paper No. 2015-015, Available at SSRN: https://ssrn.com/abstract=2560553 or http://dx.doi.org/10.2139/ssrn.2560553

Cody Jacobs (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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