Abstract:

The question that scholars and courts have been asking for decades—whether personal jurisdiction is limited by states’ sovereignty or by individuals’ liberty—has obscured what form of sovereignty is at stake. Many participants in this debate have failed to disambiguate external sovereignty, which applies to relations between sovereigns, from internal sovereignty, which applies to relations between a sovereign and the individuals subject to that sovereign’s authority. Given that defendants can consent to personal jurisdiction, as highlighted in the Supreme Court’s June 2023 decision in Mallory v. Norfolk Southern Railroad Co., the relevant form of sovereignty here must be internal. Indeed, defendants can even consent to jurisdiction through registration statutes or by failing to object to jurisdiction in a timely manner, which would be inappropriate if the rights at stake were those of the defendant’s home state. Reaching this conclusion both reveals that claims of personal jurisdiction being limited by horizontal federalism are misplaced, and that the relevant concept of sovereignty in the domain of personal jurisdiction is effectively coterminous with individual liberty. Sovereignty thus drops out of personal jurisdiction. So long as defendants are able to consent to jurisdiction in states otherwise lacking requisite contacts, we should abandon messy and potentially misleading sovereignty concerns in personal jurisdiction and correctly focus on defendants’ liberty interests.