Allan Erbsen (University of Minnesota – Twin Cities – School of Law) has a new post on SSRN entitled “Impersonal Jurisdiction“, Emory Law Journal, forthcoming. The abstract reads:
Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism – the constitutional relationship between states – should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence. The Article proceeds in three steps: it strips away layers of history and doctrine to present a model for thinking about why constitutional limits on personal jurisdiction may be necessary, shows how the model places personal jurisdiction within a broader context of constitutional law governing horizontal federalism, and considers how analyzing personal jurisdiction within this context challenges pivotal assumptions underlying modern doctrine and canonical understandings of how civil procedure and constitutional law intersect. In particular, the Article questions two pillars of the Supreme Court’s jurisprudence. First, it considers whether the Constitution makes Congress rather than the judiciary the primary institution for regulating jurisdiction in state courts, and thus whether the prospect of diversity jurisdiction and removal to federal court should preempt judicially created due process remedies against jurisdictional overreaching by state courts. Second, it challenges the coherence of the multifactored reasonableness test that courts use to implement due process limits on state authority. More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine. The Article thus generates insights that can reshape a much maligned area of law that routinely confounds courts and scholars.