Lawrence B. Solum

Originalism and Personal Jurisdiction: Several Questions and a Few Answers

CO-AUTHORS Max Crema
PUBLISHER
Alabama Law Review
DATE
2022 Spring
 

Abstract

The modern law of personal jurisdiction in the United States is largely the product of living constitutionalism. The most important decision is International Shoe, which famously stated:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

International Shoe’s adoption of the minimum-contacts and fairness standard as the test for compliance with the Due Process of Law Clauses is a paradigm case of living constitutionalism. The Supreme Court made no attempt to derive the minimum-contacts formula from the constitutional text, nor did the cases it cites, as we show in a footnote.

Citation

Max Crema & Lawrence B. Solum, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Alabama Law Review 483 (2022).
 

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