Abstract:
We are in a heyday of personal jurisdiction cases at the Supreme Court, yet the Court has not managed to resolve a fundamental question: Do constitutional limits on state courts’ exercise of personal jurisdiction stem from states’ status as co-equal sovereigns, from individuals’ right to liberty, or from both? Unmoored from any foundational understanding of this doctrine, the Court has produced a string of rudderless personal jurisdiction decisions that have confounded scholars and litigants alike and inspired a seemingly endless sovereignty-versus-liberty debate.
This Article proposes a way out. By combining a novel theoretical lens with an account of how personal jurisdiction actually operates, it reveals what has been going on in personal jurisdiction all along and identifies a path forward. “Sovereignty” and “liberty” are both multifaceted concepts, as political theorists and other areas of law have long recognized. Distinguishing especially between two dimensions of sovereignty—one referring to the relationship between a sovereign and those subject to its authority (internal sovereignty) and one referring to the relationship between sovereigns (external sovereignty)—reveals an underlying but previously unrecognized logic. As a descriptive matter, parties’ expansive power to authorize jurisdiction over themselves only makes sense if internal sovereignty is the source of limits. What’s more, we ought to maintain this basic arrangement. Internal sovereignty is the constitutional and conceptual bedrock of personal jurisdiction, which polices the boundaries of the relationship between forum and litigant.
Importantly, though, sovereignty-versus-liberty has been a false conflict all along. Within personal jurisdiction, internal sovereignty and individual liberty are two perspectives on the same relationship. Whether courts adopt this Article’s richer account of sovereignty or simply give up sovereignty talk in personal jurisdiction, this conclusion should guide doctrinal considerations, ranging from the tests for specific and general jurisdiction to the treatment of foreign defendants. It’s long past time to break free of the sovereignty-versus-liberty debate and provide litigants with a more predictable, grounded doctrine of personal jurisdiction.