Academic journal article William and Mary Law Review

Personal Jurisdiction Based on the Local Effects of Intentional Misconduct

Academic journal article William and Mary Law Review

Personal Jurisdiction Based on the Local Effects of Intentional Misconduct

Article excerpt

ABSTRACT

Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.

The jurisdictional dilemma posed by the in-state effects of out-of-state conduct is timeless and timely. It is timeless because it has arisen in thousands of cases and is an unavoidable feature of a federal system that allocates judicial power between fifty coequal states. It is timely because the Supreme Court's 2014 decision in Walden v. Fiore directly addressed effects jurisdiction for the first time since 1984.

This Article critiques Walden and proposes a new approach to the broader constitutional question by focusing on five conclusions. First, it illustrates how Walden relies on a distinction between a defendant's contacts with the forum state and a defendant's contacts with the forum's residents. Second, it critiques the forum/resident distinction as imprecise, misleading, and a revival of the formality that plagued nineteenth-century personal jurisdiction jurisprudence. It also offers a new account of Chief Justice Stone's reasoning in International Shoe, a case about enforcing taxes, by comparing Shoe to Stone's strikingly similar opinion in a case about imposing taxes. The comparison highlights Shoe's hostility toward the sort of formality that animates Walden. Third, it contends that lower courts might salvage the Court's emphasis on forum contacts by focusing on the defendant's contacts with the forum's law, in effect merging constitutional limits on the state's legislative and judicial power. Fourth, it suggests that state regulatory interests are more important than commonly recognized when local effects are severe, such as an Ebola quarantine. Fifth, it proposes a new approach to analyzing jurisdiction by considering whether actors who commit intentional torts without a geographic focal point assume the risk of being sued wherever harm occurs.

These conclusions suggest that Walden's reasoning would be misleading if read literally and acontextually. The opinion leaves more room for exercising jurisdiction in effects cases than its dismissive veneer implies.

TABLE OF CONTENTS

INTRODUCTION
  I. A SIMPLE MODEL OF EFFECTS CASES
 II. THE SUPREME COURT CONFRONTS EFFECTS JURISDICTION: CALDER AND
     WALDEN
     A. Calder
        1. The Long Arm of Tabloid Journalism
        2. A New Test
        3. Ambiguities in the New Test
     B. Walden
        1. Gambling on Effects Jurisdiction
        2. The Holding Hinges on the Court's Distinction
           Between Contacts with the Forum and Contacts with
           Forum Residents
        3. Reframing Calder
        4. Maneuvering Room in Walden's Reasoning
III. MAKING SENSE OF THE EFFECTS TEST FOR FUTURE CASES
     A. Reframing the Aiming Inquiry by Refining the
        Forum /Resident Distinction
        1. The Forum /Resident Distinction Is Imprecise and
           Needlessly Formal
           a. The Court Did Not Require Contacts with
              State Territory
           b. The Court Might Have Required Contacts with
              States as Incorporeal Entities, but Such a
              Requirement Would Be Incoherent
           c. Whether the Forum /Resident Distinction Requires
              Contact with Territory or an Entity, It Needlessly
              Revives Archaic Formal Approaches to Jurisdiction
              that the Court Repudiated in International Shoe
        2. … 
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