Academic journal article Northwestern University Law Review

Making Sense of Sovereignty: A Historical Understanding of Personal Jurisdiction from Pennoyer to Nicastro

Academic journal article Northwestern University Law Review

Making Sense of Sovereignty: A Historical Understanding of Personal Jurisdiction from Pennoyer to Nicastro

Article excerpt


With its recent decision in J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the Supreme Court set afire the legal community with broad proclamations of a sovereign-authority-based1 approach to personal jurisdiction.2 The criticisms of that decision and its focus on sovereignty range from impracticability3 to incomprehensibility.4 The main thrust of these arguments is that sovereignty has no place in personal jurisdiction, and that the Court said as much in its landmark International Shoe Co. v. Washington decision.5 Accordingly, critics of Justice Kennedy's plurality in Nicastro cite it as an attempt to assert antiquated notions of sovereignty that died out with International Shoe.6

The International Shoe Court's statement that personal jurisdiction should not be divorced from "traditional notions of fair play and substantial justice"7 is not a rejection of sovereign-authority concerns in personal jurisdiction doctrine. This Note will take up a descriptive exploration of sovereignty concerns in the Supreme Court's doctrine from Pennoyer v. Neff8 to Nicastro,9 and argue that the Court has never abandoned its focus on sovereign authority in the context of personal jurisdiction.

The Court's sovereign-authority-based approach to personal jurisdiction began in Pennoyer, where the Court asserted that the Due Process Clause imposed strict territorial limits on the exercise of jurisdiction.10 That marked the most extreme sovereignty rationale the Court has yet to adopt in its personal jurisdiction decisions.11 However, in the years to come, the Court created exceptions to that absolute doctrine in order to allow states to exercise authority over out-of-state defendants who had availed themselves of the benefits and protections of the state.12 This is an oft-ignored development in the doctrine, but is important for understanding it as a whole.

The most radical shiftin the doctrine comes in International Shoe, where the Court liberalized the sovereignty considerations in personal jurisdiction, such that a defendant's minimum contacts with a state give that state the sovereign authority to exercise jurisdiction over that defendant, even when no service of process is given to a representative agent in the state.13 Reading Milliken v. Meyer,14 which first established the notion of fair play and substantial justice as a relevant consideration in personal jurisdiction,15 and International Shoe together makes clear that even International Shoe's liberal minimum contacts test is still fundamentally a test of whether or not a forum state has the sovereign authority to exercise personal jurisdiction over a defendant.

The Court fought with the boundaries of the minimum contacts test for decades after International Shoe, culminating most recently with its decision in Nicastro. After the plurality in Nicastro made broad assertions of sovereignty considerations when considering whether the state could exercise jurisdiction over the defendant,16 the legal community rained down much criticism.17 This Note argues that this criticism is misplaced because the history of the Supreme Court's personal jurisdiction doctrine has always focused on sovereign authority.

As a general matter, at least descriptively, the Court is not "bullheaded" 18 or incoherent19 in applying its personal jurisdiction doctrine. Primarily, it is important to understand the descriptive coherence of the Court's personal jurisdiction doctrine because the exercise of personal jurisdiction is inherently concerned with the legitimate exercise of judicial power over parties to litigation.20 Thus, if the Supreme Court's personal jurisdiction doctrine is inconsistent or incoherent, it calls into question the legitimacy of many judicial proceedings and exercises of power. In fact, the Supreme Court's personal jurisdiction doctrine is descriptively coherent, thus helping to alleviate concerns about the legitimacy of judicial exercises of personal jurisdiction. …

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