Sovereignty, Liberty, and Personal Jurisdiction: The J. McIntyre Muddle
Abstract
Both the sovereignty and liberty interests embedded in personal jurisdiction doctrine reflect concerns about choice of law. Sovereignty concerns justify denying personal jurisdiction over a defendant only when the forum’s exercise of jurisdiction would potentially interfere with another state’s legitimate interest in regulating local enterprises. Liberty concerns, when not founded on the inconvenience of distant litigation, justify denying jurisdiction only when a forum’s application of its own substantive and procedural rules would frustrate defendant’s reasonable expectation that its disputes will be resolved in accordance with another state’s regulatory framework. A defendant who seeks to serve a national market should be subject to specific personal jurisdiction wherever its product causes harm, even if defendant’s contacts with the forum state are slight. By pursuing a national market, defendant forfeits any plausible claim that its activities should be regulated exclusively by any one state, and any claim that it relied on that state’s regulatory scheme.
In J. McIntyre v. Nicastro, a plurality of the United States Supreme Court invoked sovereignty and liberty in holding that New Jersey lacked jurisdiction over a British manufacturer who used a U.S. distributor to serve the American market. The plurality did not elaborate on its conception of sovereignty and liberty. By focusing on the forum’s sovereign authority over defendant – rather than potential interference with the sovereign authority of another state – the plurality would upend modern conceptions of the due process clause, and deny a state the right to hear cases in which the state has a strong interest, even when the state’s exercise of jurisdiction would not interfere with the regulatory interests of other jurisdictions or the reliance interests of defendants.