Abstract:
The debate over the justification for constitutional limits on state courts’ exercise of personal jurisdiction has haunted and destabilized civil litigation in the United States for decades. Do limits stem from states’ sovereignty, as the Supreme Court indicated in World-Wide Volkswagen v. Woodson? Or from individuals’ liberty, as it asserted in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee? The Court has wavered unsteadily between these justifications, inspiring a seemingly endless sovereignty-versus-liberty debate among the justices and scholars.
This Article proposes a way out. To do so, it takes aim at the woefully underspecified terms of the debate. The Court has never clearly articulated in this context what it means by “sovereignty” and “federalism” on one hand or “liberty” on the other. In particular, introducing a distinction between internal sovereignty, referring to the relationship between a sovereign and those subject to its authority, and external sovereignty, referring to relationships among sovereigns, reveals an underlying but unspoken logic to existing doctrine. Internal, not external, sovereignty must be central to personal jurisdiction because parties’ expansive power to authorize jurisdiction over themselves would not otherwise make sense. And this Article argues that internal sovereignty should remain central because it is the conceptual bedrock of personal jurisdiction, which polices the boundaries of the relationship between forum and litigant.
Importantly, though, this means 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 disambiguated concept of sovereignty or simply give up sovereignty talk in personal jurisdiction, this conclusion should guide various doctrinal considerations—ranging from the tests for specific and general jurisdiction to the treatment of foreign as opposed to out-of-state domestic 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.