Doctrinal Redundancy and the Two Paradoxes of Personal Jurisdiction
16 Pages Posted: 13 Dec 2019 Last revised: 5 Feb 2020
Date Written: November 26, 2019
This short Essay* explores the extent to which personal jurisdiction does (or does not) occupy some common space with doctrines of foreign sovereign immunity. Much of the attention paid to the transnational complications in personal jurisdiction has centered around the problem of non-resident alien defendants whose due process protections have been strengthened to the point that American litigants have trouble suing such defendants in a convenient forum state or in any American forum at all. Far less attention has been given to the equally paradoxical result that when the nonresident alien defendant is a foreign state, the due process protections for personal jurisdiction fall to zero. In this brief Essay, I argue that both paradoxes share a conceptual origin: the problem of redundancy in constitutional personal jurisdiction doctrine. This Essay tells the parallel stories of personal jurisdiction and foreign sovereign immunity. Considering these two stories in the same space gives further evidence of the extent to which personal jurisdiction overlaps with other procedural doctrines. But it also shows how the peculiar historical path of each doctrine can mask the extent of the shared space and thus delay a reckoning with the extent and consequences of the overlap. By the time that personal jurisdiction had come to occupy some serious shared space with several other procedural doctrines, the lack of engagement both furthered the detachment of the doctrines and solidified much of the redundancy between personal jurisdiction and other procedural doctrines. At several junctures, scholars have wondered what constitutional personal jurisdiction doctrine can and should add to procedural doctrines that regulate access to courts and parties’ amenability to suit in U.S. jurisdictions, and procedural doctrines that sort lawsuits into geographically suitable or appropriate locations. I suggest that it is useful to refocus on the question of what doctrines can and should regulate the amenability of foreign sovereigns (as well as the agencies and instrumentalities of foreign sovereigns) to suit in American courts as a way of further identifying the lack of clarity and conceptual weaknesses in each doctrine.
*This Essay is a response to Professor Ingrid Wuerth’s article in the Fordham Law Review, The Due Process and Other Constitutional Rights of Foreign Nations.
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