Let me begin by thanking Professor Borchers for inviting me to contribute to this Symposium on the interrelation between constitutional personal jurisdiction protections and judgment treaty provisions. Professor Borchers is a bold Conflict of Laws writer, whose works I admire and always find stimulating. One of the goals of my essay is to demonstrate that I have read and found Professor Borchers' ideas significant. I will do this in the classic fashion one academic demonstrates his respect for another academic's thoughts. Having found Professor Borchers' thoughts significant, I will significantly disagree with them.
Professor Borchers asks us to assume, hypothetically, that the United States has entered into a treaty whose provisions would violate United States constitutional protections relating to personal jurisdiction.(1) This is no idle hypothetical, as I shall explain below. Professor Borchers then asks us whether the treaty provisions would trump the Constitution.(2) I agree with the majority of my colleagues that a constitutional provision always takes precedence over a treaty, provided that the constitutional provision is of the sort meant to guarantee individual rights against majority infringement or against arbitrary exercises of governmental power.
This last qualification, however, is at the heart of the dispute I have with Professor Borchers on personal jurisdiction theory more generally. Should United States Supreme Court personal jurisdiction case law protect against arbitrary governmental action? Should we, in short, have constitutional protection for personal jurisdiction? Professor Borchers is on record with a resounding "no" to this last question.(3) Although he says it is not necessary to go so far in arguing the treaty issues before us for this Symposium,(4) I have my doubts. The hypotheticals Professor Borchers puts before us of the conflict between constitution and treaty seem to be precisely designed to highlight deficiencies in our constitutional personal jurisdiction case law. It is my suspicion that, subconsciously or consciously, Professor Borchers has set his treaty problem in order to reinforce his arguments that there should be no constitutional doctrine of personal jurisdiction. If so, I accept his implied challenge. In this Article, I defend the idea of constitutional limits on personal jurisdiction, and the concomitant idea that such limits may be insisted upon even if the rest of the world does not share the values which inform our constitutionally-based limits.
In order to defend unilateral constitutional personal jurisdiction values, I am required to make three related arguments. First, I argue that constitutional protections are necessary to protect against unreasonable assertions of personal jurisdiction, which might otherwise be authorized.(5) Second, I argue that the judiciary is peculiarly empowered to protect against these unreasonable assertions of personal jurisdiction.(6) Third, I briefly identify constitutional principles or values which properly should guide the Court in defining proper limits for personal jurisdiction.(7) In the remainder of this Introduction, I summarize my main points before developing them in greater detail in the subsequent Parts.
Current United States case law construing personal jurisdiction limits is to some extent an indefensible muddle. Defending Court-defined reasonableness limits is therefore no easy task. I do not defend the current constitutional balances the Court has drawn. Rather, my goal is more limited, but also more basic. I defend only the idea that properly construed constitutional limits on personal jurisdiction cannot be trumped by treaty provisions.
Professor Borchers deflects attention from this issue by placing emphasis on the conflict between treaty provisions and the Court's worst interpretations of personal jurisdiction limits.(8) I, like most members of this panel, have criticized the Court quite strongly for misdrawing due process lines. …