Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather than Liberty after Walden v. Fiore

27 Pages Posted: 29 Sep 2015

See all articles by Allan Erbsen

Allan Erbsen

University of Minnesota - Twin Cities - School of Law

Date Written: September 27, 2015


The Supreme Court’s jurisprudence addressing personal jurisdiction has vacillated between different rationales for limiting judicial authority. Some decisions emphasize liberty, some invoke federalism, and some rely on both. This Article uses the Court’s 2014 decision in Walden v. Fiore to show that recent emphasis on gilded rhetoric about liberty blurs the distinction between venue and jurisdiction, misconstrues the relevant private interests, and fails to consider the allocation of authority among coequal states in a federal system.

Walden held that adjudication of a civil suit in a Nevada federal court rather than in a Georgia federal court would infringe the defendant’s “liberty.” However, this Article explains that if Congress had authorized nationwide service of process, the supposedly abusive assertion of personal jurisdiction that the Court unanimously found unconstitutional would have been justified.

Congress’s power to confer personal jurisdiction that would otherwise be unconstitutional requires rethinking how the Constitution limits states’ adjudicative authority. The prospect of nationwide jurisdiction highlights a critical distinction between states as physical places and states as government entities. Jurisdiction might be appropriate in a state even if a defendant cannot be compelled to appear by the state. This in/by distinction reveals that modern personal jurisdiction doctrine conflates two distinct questions: (1) where may litigation occur, and (2) which governments may authorize litigation. Disentangling the “where” and “which governments” questions has several implications.

First, constitutional limits on venue may operate separately from limits on personal jurisdiction. Venue doctrine should assess whether litigation in a particular physical location is appropriate while personal jurisdiction doctrine should consider whether a particular government can compel the defendant to appear. Second, individual liberty is not a helpful animating principle for determining which governments should be able to authorize jurisdiction. My argument does not rely on formal labels, but the word “immunity” may be more helpful than liberty for describing the dynamics of personal jurisdiction when defendants are domiciled outside the forum. Essentially, defendants have a limited immunity from suit that the forum can abrogate, depending on the defendant’s actions, government interests, and competing private interests. In contrast, a “liberty” interest that Congress can override merely by deciding to authorize nationwide service seems hollow. Third, principles of horizontal federalism — which govern relationships between states in a federal system — can help courts allocate jurisdictional power among potential fora. Courts might profitably analogize issues that arise when considering personal jurisdiction to issues that arise when analyzing choice of law, enforcement of judgments, extraterritorial legislation, and dormant federal preemption of state authority.

Keywords: Personal Jurisdiction, Adjudicative Jurisdiction, Civil Procedure, Effects Test, Calder v. Jones, Walden v. Fiore, Nicastro, Horizontal Federalism, Nationwide Service, Venue, Liberty, International Shoe

JEL Classification: H73, K41

Suggested Citation

Erbsen, Allan, Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather than Liberty after Walden v. Fiore (September 27, 2015). Lewis & Clark Law Review, Vol. 19, 2015, Minnesota Legal Studies Research Paper No. 15-23, Available at SSRN:

Allan Erbsen (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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