The University of New Hampshire Law Review
[Excerpt] "Personal jurisdiction doctrine plays a major role in many civil disputes in the United States. When the defendant resides in, is incorporated or headquartered in (in the case of a corporation or other business), or is otherwise found in the particular state where suit is brought, personal jurisdiction generally is found to exist and is unproblematic. Major personal jurisdiction issues usually arise when a plaintiff sues the defendant in a state other than the one in which the defendant is located.
In many cases involving parties located in different states, where a suit takes place is as extensively litigated an issue as the underlying dispute that led to the litigation in the first place. In the last seventy years, most personal jurisdiction disputes have been litigated under the famous minimum contacts standard first articulated in International Shoe v. Washington. There is little dispute about what the Court said in that case. But the Supreme Court’s inability to cogently explain and consistently apply the standard annunciated in International Shoe has confounded litigants and lower courts alike. Predicting whether a particular state court has jurisdiction can be frustrating. Parties and courts are hard pressed to know whether jurisdiction in a particular forum will be upheld.
The problem is not that personal jurisdiction has not been given sufficient attention; it is that it has gotten too much attention. Although I recognize the irony of writing an article about a topic while decrying the focus on that topic, my hope is that this article might nonetheless ultimately make personal jurisdiction doctrine simpler, more predictable, and therefore less important.
Within the more than fifty jurisdictions in the United States, where a suit takes place really should not matter very much. Modern travel and communication makes suits throughout the country relatively easy for most parties. Federal and various state judicial systems are more alike than different. And, even though substantive law may vary from state to state, modern conflict of law approaches allow the application of appropriate substantive law irrespective of the location of litigation.
The reason that personal jurisdiction has become so important is that modern case law made it so. The Court’s jurisprudential approach, which focuses on due process, state lines, and minimum contacts, assumes that personal jurisdiction involves a highly complex, constitutionally important area of law. But, it is not that personal jurisdiction is inherently complex or important. It is only that the Court’s unfortunate approach has made it so.
Personal jurisdiction should be, and can be, straightforward, low drama, and simple. For defendants who are located in the United States personal jurisdiction should be primarily a matter of state policy, with minor policing by the Supreme Court and Congress. This article argues that a state-focused approach to personal jurisdiction is both theoretically sound and practically superior to the current minimum contacts approach.
Section II of this article provides a critical history of personal jurisdiction. Section III provides an organized critique of the current landscape. With Section II having provided detail of the cases from International Shoe through the Court’s case law in its most recent term, Section III hones in on what is fundamentally wrong with the current approach. Section IV delineates a new approach to personal jurisdiction. With prior sections arguing that due process and minimum contacts are both a practical hindrance and a theoretical mismatch, this Section advocates for a non-constitutional approach to personal jurisdiction grounded primarily in state legislative policy choices. Section V evaluates the new proposal by considering how common personal jurisdiction scenarios will play out under the proposed approach. It demonstrates that if left primarily to state policy makers, with minor federal constitutional and legislative involvement, the resultant doctrine will be consistent with both constitutional and systemic structural norms. It will also result in fairer, more logical, and easier standards to apply than the current minimum contacts approach."
Robert E. Pfeffer, A 21st Century Approach to Personal Jurisdiction, 13 U.N.H. L. REV. 65 (2015), available at http://scholars.unh.edu/unh_lr/vol13/iss2/4