The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again

87 Pages Posted: 30 Apr 2007


In 1990, in Burnham v. Superior Court, the U.S. Supreme Court upheld the traditional rule that a civil defendant could be subjected to personal jurisdiction in a state simply by being physically served with the summons while in the state, no matter how brief or casual the defendant's presence. The validity of this tag rule of jurisdiction had been assumed to be in jeopardy as a result of the Supreme Court's 1977 decision in Shaffer v. Heitner which stated in dictum that it was unconstitutional for a state to exercise jurisdiction over any defendant lacking minimum contacts with the state. The Burnham Court, however, could not agree on a rationale. Four justices essentially rejected Shaffer and concluded that the historical pedigree of the tag rule immunized it from constitutional scrutiny. Four others accepted the Shaffer rationale but applied a watered-down version of the minimum contacts test. Justice Stevens in his lone opinion apparently agreed with both rationales. Burnham lays bare the confused origins of the notion that issues of state-court jurisdiction are a matter of constitutional significance. This article argues that this confusion stems from the highly ambiguous 1877 opinion in Pennoyer v. Neff. While Pennoyer seemingly introduced the notion that the Due Process Clause limited state court jurisdiction, plausibly the opinion meant only that due process principles guarantee a defendant an opportunity to challenge jurisdiction. This shaky foundation has led to a confused Supreme Court jurisprudence in this area. The article argues that the Supreme Court should dramatically limit the doctrine and invalidate only those attempted exercises of jurisdiction that put the defendant at a practical disadvantage.

Keywords: jurisdiction, due process, minimum contacts, transient presence, Pennoyer v. Neff,Burnham v. Superior Court, state-court jurisdiction

JEL Classification: K10, K41, K30, K33

Suggested Citation

Borchers, Patrick Joseph, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again. UC Davis Law Review, Vol. 24, p. 19, 1990. Available at SSRN:

Patrick Joseph Borchers (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-3009 (Phone)
402-280-3161 (Fax)


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