Tuesday, February 20, 2018
Jonathan Remy Nash (Emory) has posted National Personal Jurisdiction to SSRN.
Personal jurisdiction has always constrained plaintiffs’ access to courts; recent Supreme Court decisions impose even more severe limits, especially in suits against nonresident foreign corporations. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. The Court’s Fourteenth Amendment jurisprudence relies on the state as the relevant forum, and the Federal Rules of Civil Procedure in the typical case direct a federal court to apply the same test as would a court of the state in which it sits.
This Article takes on the challenge of exploring the possibility of expanding the use of national personal jurisdiction, and thus revitalizing plaintiffs’ access to courts. In so doing, it undertakes three distinct tasks. First, it argues first that there is no Fifth Amendment Due Process barrier to national personal jurisdiction. Second, it considers the viability of national personal jurisdiction as to various categories of claims, brought in federal court and state court. It argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, the Article considers what steps Congress is free to utilize in order to implement national personal jurisdiction. While two steps are obvious—Congress can enact statutory authority and can convey authority on a delegate—the Article focuses on a more controversial path to national personal jurisdiction: the common law. It argues that, while federal courts may enjoy interstitial common-law powers in this area, they likely do not have broad powers to generate new instances of national personal jurisdiction.