A Call for a Federal Long Arm Statute to Confer Lawful Authority Over Nonresidents on the State Courts

Abstract

The United States Supreme Court decided two cases involving personal jurisdiction in 2011, but once again it failed to clarify important issues that have divided the lower courts for decades. This Article offers possible reasons for the Supreme Court’s apparent inability to provide clear and predictable rules for personal jurisdiction and recommends federal legislation and a network of treaties with foreign nations to authorize state courts to assert jurisdiction over nonresident defendants.The American law of personal jurisdiction has developed out of the United States Supreme Court’s review of the constitutionality of state courts’ assertions of jurisdiction over nonresident defendants pursuant to state long arm statutes. State legislatures and courts have acted to extend the personal jurisdiction of the state courts to the maximum extent that the Supreme Court will allow in order to provide as much justice to their citizens as possible, instead of seeking a fair allocation of jurisdiction among the state courts by balancing the interests of residents and nonresidents. In reviewing the constitutionality of state court assertions of jurisdiction, the Supreme Court has had to rely on the Fourteenth Amendment’s Due Process Clause. Unfortunately, the Due Process Clause is so vague that it is difficult to derive predictable rules for personal jurisdiction from it, and it is also difficult for the Due Process Clause to keep up with changes in technology and commerce. Moreover, the Supreme Court’s review of state court assertions of jurisdiction is properly limited to determining whether the assertions of jurisdiction are within the maximum range permitted by the Due Process Clause, as opposed to providing for a fair allocation of jurisdiction with clear and predictable rules. It is therefore futile to expect the United States Supreme Court and all the states to develop an adequate legal framework for personal jurisdiction without assistance from Congress and treaties with foreign nations. The plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro provides support for the proposition that federal legislation and treaties would comply with the Due Process Clause by conferring lawful authority on the state courts to exercise jurisdiction over nonresidents.