Due Process, Borders, and the Qualities of Sovereignty: Some Thoughts on J. Mcintyre Machinery v. Nicastro

Abstract

The Supreme Court’s announcement that it would her two personal jurisdiction cases last Term raised the hope that it would clarify an area of doctrine that has been unclear for twenty years. The Court’s decision on general jurisdiction satisfied those expectations at least in part. The Court’s specific personal jurisdiction decision, by contrast, only made things worse.

This essay serves, first, as the introduction to a symposium on personal jurisdiction and, second, as a critical analysis of the Nicastro decision on specific personal jurisdiction. Part One surveys some of the history of personal jurisdiction doctrine, with an emphasis on the tension between rules and standards. Part Two grapples with Nicastro and its possible meanings and concludes that Nicastro undermines much of the understanding (such as it was) that shaped the last thirty plus years of personal jurisdiction doctrine.

Part Three suggests an approach to personal jurisdiction based in state interests and relative burdens, one that takes federalism seriously yet at the same time would uphold more assertions of jurisdiction. I propose that a state court presumptively may exercise jurisdiction over non-consenting defendants who know or ought to know that their voluntary acts or omissions, and/or the effects of those acts or omissions, implicate the legitimate regulatory interests of the forum state, unless the defendant demonstrates that (1) the forum state’s interests in the litigation are minimal and significantly outweighed by those of another state or (2) the burdens on the defendant would make litigation in that forum significantly unfair in relation to another available forum and the potential burdens on the plaintiff.

Part Four turns to a different topic: the rhetoric of Justice Kennedy and Justice Breyer's opinions. Justice Kennedy repeatedly insisted that personal jurisdiction is about "submission" to sovereign (judicial) authority, and I consider some of the ramifications of this claim, particularly in relationship to Justice Kennedy's opinions in other cases. For his part, Justice Breyer provided examples of people over whom he thought personal jurisdiction would be inappropriate. These examples rest on a set of assumptions about national and regional characteristics, as well as a conception about jurisdiction that assumes a sharp distinction between periphery and metrople. His approach, in other words, rests on a different, more cosmopolitan, but perhaps also more disturbing, idea of sovereignty.