Lawrence B. Solum (University of Virginia School of Law) & Max Crema (Georgetown University Law Center) have posted Originalism and Personal Jurisdiction: Several Questions and a Few Answers on SSRN. Here is the abstract:
The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe’s minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.
The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction distinction. Second, it identifies four competing theories of the meaning of “due process of law”: the Fair Procedures Theory, the Legal Procedures Theory, the Process Theory, and the No-Theory Theory. Third, it sketches the doctrinal status quo and examines personal jurisdiction from the perspective of five forms of living constitutionalism, demonstrating that there is no single living constitutionalist approach to personal jurisdiction. Fourth, it summarizes the evidence for the Process Theory of the Fifth Amendment—the view that “due process of law” required service of process issued by a court of law—and traces its implications for the personal jurisdiction of the federal courts, distinguishing static and dynamic versions of the theory. Fifth, it outlines a research program for originalist analysis of the Fourteenth Amendment and personal jurisdiction in state courts. Sixth, it considers the implications for originalist constitutional theory, including the role of precedent and the management of the transition from International Shoe to an originalist regime.
One conclusion seems clear: the International Shoe approach to personal jurisdiction is inconsistent with the original meaning of the Due Process of Law Clauses. That fact demands attention from scholars and litigators alike.
Comments always welcomed!
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Lawrence Solum