Personal Jurisdiction and National Sovereignty

Abstract

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants are involved. By requiring an antecedent ‘top of mind’ focus on the forum state when actions that lead to litigation are taken, the Court would exclude from U.S. litigation activities that bear a close relationship to the forum, and that would provide a basis for jurisdiction in many if not most other nations. This matters especially because the U.S. conducts so much of its national regulation through litigation, and through litigation in state courts, and through litigation based on state causes of action. This article gives fresh emphasis to the notion that states are members of a shared sovereignty, and that state actions implicate national sovereignty as much as actions by the federal branch of government.

The problem is compounded by the incoherency of the Court’s ‘our federalism’ state sovereignty analysis. Other commentators have not focused on how the Court’s assumption in recent personal jurisdiction cases that states are in purely rivalrous relationships contrasts with reality, which is increasingly recognized to involve overlapping, reinforcing, sometimes coordinated spheres of jurisdiction. Rather than treating the states as rivals involved in a zero sum game, where an assertion of power by one undercuts the power and dignity of another, this article looks at the polycentric, pluralistic nature of U.S. governance, where state members of a “more perfect union” coordinate, collaborate, pursue shared goals independently, and only sometimes compete.

State sovereignty ultimately is national sovereignty. To exaggerate concepts of state rivalry and exclusiveness in a modern age of legal pluralism serves only to diminish the regulatory reach of individual states, and, ultimately, the nation as a whole. The Court’s narrow focus on sovereignty threatens to make the scope of U.S. jurisdiction far narrower than that of other nations, and by Constitutionalizing that scope to make adjustments io rapidly changing circumstances difficult.

Keywords: Personal Jurisdiction, sovereignty, federalism, legal pluralism, horizontal federalism, state sovereignty, Westphalian

JEL Classification: K40, K41