The Curious Disappearance of Notice: How Notice Vanished from Personal Jurisdiction and How It Should Be Restored
68 Pages Posted: 16 Jan 2019
Date Written: January 7, 2019
Notice and personal jurisdiction have long been fellow procedural law travelers because of their common origins in the mechanics of service of process and the shared due process ancestor in Pennoyer v. Neff. They have a tangled history that is more than just a historical quirk. Notice was once a reliable feature of personal jurisdiction jurisprudence, but slowly faded from prominence in personal jurisdiction analysis after the International Shoe and Mullane decisions, and then fell away almost completely in the post-Asahi era. This Article attempts to answer a few important but surprisingly overlooked questions, namely: when and why did notice break off from personal jurisdiction? And why, despite decades of nearly constant hand-wringing about confusion and chaos in personal jurisdiction, did so few commentators or jurists seem to take note of this development?
Once the Supreme Court tied personal jurisdiction to due process, notice was critical in shaping the direction of jurisdictional doctrine. Its role extended beyond that of a mere instrument of doctrinal development. The use of notice was integral to the mode of legal reasoning that the Court employed in its personal jurisdiction journey. This was on account of two key attributes of notice. First, notice, with its tangibility and dependence on mechanical service of process, allowed the Court to navigate the strict formalism of the pre-International Shoe era and the Court’s many returns to formalism in the era of minimum contacts. Second, when the Court wanted to engage in a more functional mode of analysis, notice allowed the Court to continually tie personal jurisdiction to due process because of the intuitive fairness appeal of the ideas of notice and opportunity to be heard. Thus, the Court could lean on notice to provide a veneer of fairness and process, even while supposedly privileging arguments about sovereignty and territoriality. Finally, when the Court made several efforts to limit the scope of personal jurisdiction between International Shoe and the early 1990s, the Court seized upon a different but related concept of notice – notice of jurisdiction – as a due process justification for restricting personal jurisdiction.
Restoring notice to personal jurisdiction might be a small yet helpful part of a strategy to impose normative and doctrinal order on personal jurisdiction chaos. This “notice-inclusive approach” focuses on reestablishing comfort with the inclusion of easily-satisfied due process considerations while also stressing that constitutional notice doctrine itself might be strengthened in small but strategic ways, thus adding some additional due process protections both to notice and to personal jurisdiction. Reincorporating notice in specific jurisdiction analysis would broaden the doctrine and sharpen its boundaries by refocusing analysis on the relationship between personal jurisdiction and other procedural protections with a due process component. Finally, returning notice to personal jurisdiction might pave the way for a less restrictive, yet still appropriately constrained, approach to general jurisdiction.
Keywords: procedural due process; personal jurisdiction; notice; fourteenth amendment; courts
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