The Dormant Commerce Clause as a Limit on Personal Jurisdiction

Abstract

For over 70 years, the Due Process Clause has defined the law of personal jurisdiction. This makes sense because being forced to stand trial in a far off state will sometimes be fundamentally unfair. What does not make sense, however, is the Dormant Commerce Clause’s apparent irrelevance to personal jurisdiction. The Dormant Commerce Clause addresses state laws affecting interstate commerce and everybody knows that a plaintiff’s choice of forum is often a commercially-driven choice between different state courts. So why isn’t the Dormant Commerce Clause part of personal jurisdiction doctrine? This Article makes the case for its relevance and does so at time when it can resolve a new and vexing personal jurisdiction issue. Since the Supreme Court’s 2014 decision in Daimler AG v. Bauman — a personal jurisdiction case that significantly curtailed options for forum shoppers — plaintiffs across the country have been attempting to establish jurisdiction using a company’s registration to do business in a state, even when the suit has nothing to do with the company’s business there. Focusing solely on the Due Process Clause, courts across the country have split on the issue. If the courts were to draw on the Dormant Commerce Clause, however, a clear answer would present itself.This Article offers the first comprehensive analysis of how the Dormant Commerce Clause impacts personal jurisdiction. On the question of registration to do business, the Article argues that jurisdiction based on registration violates the Dormant Commerce Clause — but only in cases where the lawsuit has no connection to the forum. Beyond that issue, the Article explains that personal jurisdiction comports with the Dormant Commerce Clause in most situations deemed constitutional under the Due Process Clause. In certain general jurisdiction cases (to the extent any remain after Daimler) and transient jurisdiction cases, however, the Dormant Commerce Clause renders personal jurisdiction unconstitutional.