Document Type

Working Paper

Publication Date

2013

Keywords

personal jurisdiction, Congress, due process, venue, state courts, federal courts

Subject Category

Conflicts of Law | Constitutional Law | Courts | Jurisdiction | Law | Litigation

Abstract

Personal jurisdiction is a mess, and only Congress can fix it. The field is a due process morass, filled with buzzwords of uncertain origin and nebulous application. We demand a single doctrine that guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these three goals, each new fact pattern pulls precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties come from the same state, that state's courts are open. If they don't, we’ll always have Article III. Most hard jurisdiction problems involve state, not federal, courts. Today, federal courts largely follow state jurisdictional rules, but they don't have to, and it's a bad idea.

Following the McIntyre plurality's suggestion, this paper proposes a system of nationwide federal personal jurisdiction, erasing the state lines that separate federal courts. Since the exact location of the courthouse is constitutionally irrelevant, this change guarantees sovereign authority over disputes, letting us secure the parties' convenience through well-crafted venue statutes -- and leaving any issues of fairness to procedural due process.

The paper develops sample legislative language giving plaintiffs the option of nationwide jurisdiction, and it explores the consequences of that language for venue, choice of law, interlocutory appeal, and so on. The goal isn't so much to argue for a specific proposal as to encourage new proposals, and hopefully to change the direction of the debate. Scholars should spend more time thinking about the jurisdictional rules we would have if we could write them ourselves -- which the Constitution actually lets us do, at least for federal courts. Only Congress can fix personal jurisdiction; we should start telling it how.