Abstract:
We can finally put an end to the debate over whether limits on state courts’ exercise of personal jurisdiction are grounded in sovereignty or liberty, and the Supreme Court’s recent decision in Mallory v. Norfolk Southern Railway Co. can help. In that case, the Supreme Court confirmed that defendants have expansive powers to authorize jurisdiction over them that would otherwise be unlawful. Yet individuals have no power to impact the rights and obligations of external sovereignty—that is, the dimension of sovereignty referring to the relations between sovereigns. Individuals can only alter the landscape of internal sovereignty—that is, the dimension of sovereignty referring to the relations between a sovereign and those subject to that sovereign’s authority. External sovereignty and the associated concept of interstate federalism accordingly cannot be the limiting factor in current personal jurisdiction doctrine. Crucially, however, internal sovereignty and individual liberty are two sides of the same coin. Sovereignty is thus both central, in its internal dimension, to personal jurisdiction, and we can stop relying on it. Considering individual liberty instead retains the same conceptual content and avoids the confusion that references to sovereignty have introduced.