Constitutional Venue

62 Pages Posted: 5 Mar 2013 Last revised: 30 Jan 2020

See all articles by Peter L. Markowitz

Peter L. Markowitz

Benjamin N. Cardozo School of Law - Yeshiva University

Lindsay Nash

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: May 2014

Abstract

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far-away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue have each served this purpose in related but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, is aimed at protecting defendants against being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be tested in the first half of the Twentieth Century, as the rise of interstate commerce, transportation, and communications technologies prompted states to reach beyond their borders by expanding the jurisdictional reach of their courts through now familiar long-arm statutes. In International Shoe, the Court situated the due process inquiry related to a fair location for trial in the personal jurisdiction doctrine — thus relegating venue to its current subconstitutional status. Forcing the square peg of venue interests into the round hole of personal jurisdiction was, on a theoretical level, an odd choice from the outset. This theoretical oddity has plagued the Court’s personal jurisdiction jurisprudence ever since. As a result, the Court’s personal jurisdiction cases have been marked by fractured decisions with dueling opinions articulating conflicting visions of nature of the due process inquiry in personal jurisdiction analysis. Some justices seek to minimize the fairness inquiry, unable to reconcile the dissonance of the individual rights framework with the origins and core of personal jurisdiction. Other justices seek to elevate the fairness inquiry to the fore, as they see individual rights protection as the centerpiece of due process. By reconceptualizing the due process fair location inquiry as venue, we can satisfy both camps. Fairness in location has little to do with jurisdiction and everything to do with due process and venue. Recognizing the constitutional aspects of venue will bring clarity to the Supreme Court’s muddled conception of personal jurisdiction. In addition, constitutional venue would provide a basic measure of due process in a small but significant category of cases where defendants are prejudiced by having to defend themselves in gravely unfair locations because of the firmly-established, but deeply flawed conception of venue as lacking constitutional content.

Keywords: Venue, Personal Jurisdiction, Constitutional Law, Civil Procedure, Immigration

Suggested Citation

Markowitz, Peter L. and Nash, Lindsay, Constitutional Venue (May 2014). 66 Fla. L. Rev.1153 (May 2014), Available at SSRN: https://ssrn.com/abstract=2228434 or http://dx.doi.org/10.2139/ssrn.2228434

Peter L. Markowitz (Contact Author)

Benjamin N. Cardozo School of Law - Yeshiva University ( email )

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Room 1111
New York, NY 10003
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212-790-0340 (Phone)

Lindsay Nash

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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