This article takes the critique sovereign authority over nonconsenting individuals from political theory and uses it to devise a legal theory that rationalizes and justifies current constitutitonal limits on personal jurisdiction. The resulting legal theory gives renewed weight to the interests of nonresidents, broadly defined to include foreign corporations, by creating a presumption against personal jurisdiction when nonresidents who could not, at reasonable cost, avoid contacts with the forum. The forum state, according to this theory, cannot impose externalities on nonresidents by requiring them to take excessive precautions or by foregoing significant benefits of activities outside the state. To allow the state to do so would essentially erase the difference between residents and nonresidents, making it impossible for anyone to escape the reach of state power. The theory also unifies the divergent strands in the constitutional law of personal jurisdiction: sovereignty emphasized in the Full Faith and Credit Clause, which speaks to relations among the states, and individual rights in the Due Process Clause, which protects life, liberty, and property. The presumption against the established by the theory explains the recent decisions of the Supreme Court on personal jurisdiction and provides a means of distilling long-overdue and much-needed rules from the abstract and indeterminate standard of “traditional notions of fair play and substantial justice,” first articulated over seventy years ago in International Shoe Co. v. Washington.
George Rutherglen, Personal Jurisdiction and Political Authority, 32 Journal of Law & Politics, 1–42 (2016).