48 Pages Posted: 30 Mar 2005
What kind of factual showing must the plaintiff make in order to establish, say, personal jurisdiction? While that may seem simple enough, real difficulties in regard to the standard of proof arise when there is a similarity of the facts entailed in the jurisdictional determination and on the merits. Surely the plaintiff has to do more than allege that the defendant is the author of state-directed acts or omissions. Yet just as surely the plaintiff should not have to prove the cause of action in order to establish jurisdiction. The plaintiff thus must have to show something between allegation and proof.
From a morass of confused cases on this procedural point of significance, this Article draws a startlingly clear rule that covers jurisdictional fact, and more. On any factual or legal issue of forum-authority, whenever challenged, the proponent of forum-authority must make a showing of more likely than not, subject to this one exception: if that issue overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum's authority. Depending on the particular threshold issue's importance, prima facie might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide appropriately whether the forum has authority to decide the merits, without foreclosing the decision on the merits that will invoke the higher standard.
Suggested Citation: Suggested Citation
Clermont, Kevin M., Jurisdictional Fact. Cornell Law Review, Vol. 91, p. 973, 2006; Cornell Legal Studies Research Paper No. 05-013. Available at SSRN: https://ssrn.com/abstract=694341 or http://dx.doi.org/10.2139/ssrn.694341