Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants

Abstract

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply to alien defendants as to domestic defendants in the personal jurisdiction context. It concludes that the current approach to personal jurisdiction over foreign defendants is doctrinally inconsistent with broader notions of American constitutionalism. The inconsistency is particularly stark given recent Fifth Amendment jurisprudence, including that involving Guantanamo Bay detainees. The limits on a court's power to assert extraterritorial personal jurisdiction over alien defendants derive not from the Due Process Clause, as commonly assumed, but from the inherent attributes of sovereignty under international law. The Article concludes by suggesting two frameworks for determining when a court may exercise personal jurisdiction over a nonresident, alien defendant. For theoretical coherence and pragmatic reasons, the Court should untether the personal jurisdiction analysis from the Constitution in international cases. Sovereignty, not due process, limits a U.S. Court's extraterritorial assertion of personal jurisdiction.

Keywords: Personal jurisdiction, due process, sovereignty, territorialism, Pennoyer, foreign relations, minimum contacts, jurisdiction, extraterritorial, alien, foreign, fifth amendment, fourteenth amendment, Asahi, international shoe, Hague convention, transnational litigation, enforcement, foreign judgment

JEL Classification: K10, K19, K20, K30, K33, K40, K41, K49, F02