Rethinking the State Sovereignty Interest in Personal Jurisdiction

The Supreme Court has never articulated a coherent theoretical justification for the law of personal jurisdiction. While some opinions state that the law is based on state sovereignty, others hold that it is instead derived exclusively from the Due Process Clause’s concern for fairness. None of the opinions, however, clearly ties either of these theories to the blackletter law of personal jurisdiction. This confusion over the purpose of the doctrine has helped to create divisions both within the Court and among the Circuits on a number of important jurisdictional issues. This Article argues that the law of personal jurisdiction must take sovereignty into serious account and provides a new interpretation of how sovereignty should inform the doctrine. Sovereignty must be considered because, when a court exercises jurisdiction over an out-of-state defendant, the state projects its sovereign power outside of its borders. The Court has imposed significant constitutional limitations on a state that projects its regulatory power beyond its borders, and analogous constitutional limitations should apply to a state court’s assertion of adjudicatory power over an out-of-state defendant. Using the scope of a state’s regulatory power as a guide, this Article contends that the inherent limits of state sovereignty can explain much of the Court’s modern personal jurisdiction doctrine. Most significantly, a regulatory model supports the requirement that the defendant— rather than merely the case—have minimum contacts with the forum state. Sovereignty, however, cannot explain all aspects of the doctrine. The purposeful availment requirement, for example, is tied to the subjective intentions of the defendant rather than the sovereign power of the states. Understanding how sovereignty influences the doctrine highlights the fact that some other constitutional value, such as fairness or liberty, must be at play