August 18, 2011
Erbsen on Personal Jurisdiction
[T]he opinion did not consider that situating personal jurisdiction within a broader context of constitutional law governing horizontal federalism invites analogies to other federalism doctrines that might require reorienting jurisdiction doctrine. The plurality inadvertently illustrated this phenomenon when it discussed choice of law. Two portions of the opinion are relevant. On page 4, the plurality stated that "[t]he Due Process Clause protects an individual's right to be deprived of life, liberty, or property only by the exercise of lawful power. This is no less true with respect to the power of a sovereign to resolve disputes through the judicial process than with respect to the power of a sovereign to prescribe rules of conduct for those within its sphere. As a general rule, neither statute nor judicial decree may bind strangers to the State." The plurality thus noted that the choice of law and jurisdiction inquiries can be similar: states may not exercise "lawful power" over "strangers," and so doctrine exists to distinguish strangers from non-strangers. Yet on page 11, the plurality observed that "[a] sovereign's legislative authority to regulate conduct may present considerations different from those presented by its authority to subject a defendant to judgment in its courts." In other words, even though the jurisdiction and choice of law inquiries sometimes aspire to distinguish strangers from non-strangers, different factors might be relevant in the two inquiries, so a person might be a stranger for jurisdictional purposes but not for choice of law purposes. The obvious follow-up question that the plurality never addressed is: why? What aspect of asserting jurisdiction over a person, as compared to applying a statute to that same person, requires considering different variables in the constitutional calculus? Instead of addressing this question, the plurality merely repeated various doctrinal tests (such as "purposeful availment") announced in prior jurisdiction cases, without explaining why those tests did not also apply in the choice of law context, and why current choice of law tests do not apply in the jurisdiction context. The failure to compare the two contexts is important because modern choice of law doctrine almost certainly would allow application of New Jersey law to the plaintiff's claim (which stems from an accident and injury in New Jersey to an employee of a business in New Jersey), even though the defendant did not "purposefully direct" its conduct to New Jersey. So apparently the lawful exercise of sovereign authority over a reluctant defendant does not always require the sort of purposefully targeted conduct that the plurality extols in its blunt rhetoric about due process. This observation does not mean that the plurality was wrong—jurisdiction and choice of law might be meaningfully different—but those differences require a subtler analysis of federalism than the plurality provided.
Definitely worth a read.