Abstract:
The debate over whether constitutional limits on state courts’ exercise of personal jurisdiction are grounded in sovereignty or liberty has haunted civil litigation in the United States for decades, but this Article proposes a way out. Commentators have tracked the Supreme Court’s fluctuation between the two justifications, even or especially after its decision in International Shoe Co. v. Washington supposedly ushered in a new era of jurisdiction. The Court has never clearly articulated, however, what it means by “sovereignty” or “federalism” in this context. Introducing a distinction between external sovereignty, which refers to relations between sovereigns, and internal sovereignty, which refers to relations between a sovereign and those subject to its authority, sheds new light.
Applying this lens to personal jurisdiction reveals that internal, not external, sovereignty is central to current doctrine. As the Supreme Court recently confirmed in Mallory v. Norfolk Southern Railway Co., parties have expansive powers to authorize jurisdiction over themselves—now through consent-by-registration, as well as through contractual forum selection, affirmative consent after a lawsuit has been filed, waiver, forfeiture, and so on. Yet parties can only alter their own legal relations; they have no authority to alter the legal relationships between sovereigns. Put otherwise, current doctrine is premised on a concern for the relations of internal sovereignty only. And rightly so. Internal sovereignty is both the conceptual and constitutional bedrock of personal jurisdiction.
Importantly, however, this means sovereignty versus liberty has been a false conflict all along because internal sovereignty and individual liberty are two sides of the same coin. Having recognized this, there are multiple paths forward. Courts could perhaps adopt the disambiguated concept of sovereignty that this Article presents. Or they could give up sovereignty talk in personal jurisdiction, instead focusing on parties’ liberty interests and thereby reaching the same relevant set of considerations. Either way, it’s long past time to abandon the debate.