Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction

By Perdue, Wendy | Northwestern University Law Review, Winter 2004 | Go to article overview

Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction


Perdue, Wendy, Northwestern University Law Review


INTRODUCTION

The Internet presents some unique challenges for personal jurisdiction. People are able to post material on the Internet that is instantly available worldwide. This has many wonderful applications, but it also means a single person who never leaves home can inflict significant harms on people around the world.1 Moreover, because the Internet brings together people from parts of the world that have very different social policies concerning areas such as free speech, consumer protection, and intellectual property, there is a significant potential for conflict about underlying regulatory policy.

The international community has been struggling with questions of who should regulate the Internet and how, but little consensus has emerged. Some observers believe that disagreements over jurisdiction related to e-commerce were largely responsible for the demise of the Hague Convention of jurisdiction and the Recognition and Enforcement of Foreign judgments in Civil and Commercial Matters.2 For the United States, consideration of the pros and cons of the alternative jurisdictional approaches to e-commerce and Cyberspace is complicated by an overlay of constitutional law.3 While the rest of the world considers the policy implications of a country of origin versus a country of destination approach,4 the United States is wrestling with what constitutes "purposeful availment" under the Due Process Clause.

Looking at the constraints imposed by our constitutional doctrine of personal jurisdiction, Professor Redish has argued that this doctrine is illsuited to Internet cases and that we should abandon it for those cases.5 I share Professor Redish's dissatisfaction with the constitutional requirement of purposeful availment. However, in this Article, I explore the issue from a different angle. I believe that the most difficult issues arise from the international arena and may ultimately lead Congress to weigh in (as it has in the case of the Anticybersquatting Consumer Protection Act).6 As a result, this Article examines what limits the Fifth Amendment imposes on the exercise of jurisdiction over aliens by the United States.7

The Supreme Court has never squarely considered what limits the Fifth Amendment imposes on assertions of personal jurisdiction in federal court. Commentators have, for the most part, assumed that the limits imposed by the Fifth Amendment are comparable to those imposed on the states by the Fourteenth Amendment. This Article examines that assumption and concludes that the limits imposed by the Fifth Amendment are not comparable to those imposed by the Fourteenth. Specifically, it argues that the Fifth Amendment should not be understood to include the requirement of purposeful availment8 and that jurisdiction should be constitutional on the basis of effects in the United States.

This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level.

This Article is built on two basic premises: that personal jurisdiction is a doctrine that concerns the allocation of sovereign authority, and that the underlying sovereignty considerations of the United States within the world community are quite different from those of the states within our confederation of states. As a result, although the Due Process Clauses of the Fifth and Fourteenth Amendments are worded the same, the limitations that those clauses impose on sovereign authority are different. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.