Desert, Utility, and Minimum Contacts: Toward a Mixed Theory of Personal Jurisdiction

Abstract

In this Essay, I suggest several steps to improve the Supreme Court's approach to minimum contacts analysis. Though they necessitate some modification of current doctrine, these steps require neither radical alteration of the test's current factors nor abandonment of any of its purposes. I propose a new way of looking at the Court's minimum contacts analysis that better explains and integrates the factors, temporal perspectives, and purposes that presently figure in the analysis. My approach draws on criminal law, analogizing a state's imposition of the burdens of jurisdiction to its imposition of a criminal sanction. It sees the minimum contacts doctrine as driven by two goals-individual desert and social utility-with quite different temporal orientations and criteria. This approach uses one group of factors that adopts an ex post viewpoint looking back to the time before initiation of litigation (for example, the defendant's past conduct and mental state) to assess whether the defendant deserves imposition of the burden of the forum's exercise of jurisdiction. It collects in a second group factors that adopt an ex ante viewpoint looking forward to the time after initiation of the litigation (for example, efficiency and party convenience) and uses them to determine whether the forum's exercise of jurisdiction will prove socially useful.