Tuesday, May 1, 2018
I have just posted a short article Solving the Nonresident Alien Due Process Paradox in Personal Jurisdiction to SSRN. It is forthcoming in the Michigan Law Review's online supplement as a response to Bill Dodge and Scott Dodson's forthcoming Michigan piece Personal Jurisdiction and Aliens.
Personal jurisdiction has a nonresident alien problem. Or, more accurately, personal jurisdiction has two nonresident alien problems. The first is the extent to which the specter of the nonresident alien defendant has overshadowed—if not unfairly driven—the discourse and doctrine over constitutional personal jurisdiction. The second is that the constitutional right to resist personal jurisdiction enjoyed by the nonresident alien defendant in a civil lawsuit is remarkably out of alignment with that same nonresident alien’s ability to assert nearly every other constitutional right. Neither of these observations is new, although the first problem has drawn far more scholarly attention than the second.
In this short response to Personal Jurisdiction and Aliens by Professors Dodge and Dodson, I consider the implications of the Supreme Court’s jurisprudence concerning the due process rights of aliens, particularly in United States v. Verdugo-Urquidez and its progeny. The modern era of discussion surrounding aliens’ due process rights began with Verdugo-Urquidez. Dodge and Dodson view this line of authority as a potential problem for the concept that aliens can assert the due process right of personal jurisdiction. In their analysis, they correctly conclude that Verdugo-Urquidez does not stand for the proposition that aliens are barred from asserting due process claims (including personal jurisdiction claims) in federal and state courts. Dodge and Dodson, however, have missed the opportunity to explore how Verdugo-Urquidez establishes a direct link to their argument for a test of nationwide contacts.
Verdugo-Urquidez and its progeny show that the Supreme Court has developed a doctrine in which the exploration of an alien’s ability to assert constitutional rights is not a binary question, but a complicated inquiry which rests on the relationship of the alien (and often the conduct at issue in the assertion of the constitutional right) to the United States as a whole. This line of cases, with its emphasis on the relationship of the alien to the United States, bears a remarkable resemblance to the analysis of relationships between litigant, forum, and conduct that are involved in personal jurisdiction analysis. They strengthen the argument that the United States (as opposed to individual states) is, in fact, the relevant sovereign for analyzing the personal jurisdiction of nonresident aliens.
There are two benefits to examining the relationship of Verdugo-Urquidez to personal jurisdiction doctrine. The first is to demonstrate that Verdugo-Urquidez is far from a problem—it actually figures into an “alienage jurisdiction” solution. The second is realizing that Verdugo-Urquidez fits within alienage jurisdiction allows us to directly address what was considered a doctrinal conundrum in personal jurisdiction: How is it that aliens have greater constitutional rights in personal jurisdiction as their connection to the United States lessens, while aliens in all other contexts seem to require a closer relationship to the United States? By viewing Verdugo-Urquidez as a necessary part of the argument for alien personal jurisdiction, focusing on the United States as the relevant sovereign, and clarifying that nationwide contacts are the correct solution, this supposed doctrinal incongruity becomes a harmonious (and even necessary) reconciliation of the two doctrines.