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A Tale of Two Jurisdictions

Posted by on Thursday, March 19, 2015 in Articles, Volume 68, Volume 68, Number 2.

A Tale of Two Jurisdictions


The Supreme Court has recently clarified one corner of personal jurisdiction—a court’s power to hale a defendant into court—and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is permissible. The traditional theory, general jurisdiction, authorizes jurisdiction when there is a tight connection between the defendant and the forum. The modern theory, specific jurisdiction, focuses more on the connection between the lawsuit itself and the forum. Although the two theories should have developed in tandem, the doctrine has become a morass.

This Article makes three contributions. First, it elucidates the unsettling disjunction that has developed between general and specific jurisdiction. Second, from a doctrinal perspective, it demonstrates that the Court has severely constrained the reach of general jurisdiction in a way that would have been surprising just four years ago. In all likelihood, a corporation is subject to general jurisdiction only in its state of incorporation and where it maintains its principal place of business. This doctrinal development sensibly has restricted general jurisdiction to what I call the saturation point—the place (or very limited number of places) where a defendant cannot have more significant contacts anywhere else. Third, it posits that the concept of a saturation point for general jurisdiction logically suggests a saturation point for specific jurisdiction—that is, a place where the lawsuit itself could not have more significant ties to any other forum. The latter saturation point winds up being more of a thought experiment, but one that bookends a coherent vision of the entire doctrine. The constitutional test for the exercise of jurisdiction at either saturation point is exceedingly demanding, but personal jurisdiction can exist along a continuum. Between the two saturation points, when a particular forum has some connection to both the defendant and also the lawsuit, the constitutional test is quite lax. In other words, the notion of saturation points and the continuum between them can sensibly integrate the two forms of
personal jurisdiction, which until now have had an uneasy relationship.

Associate in Law, Columbia Law School.