Personal Jurisdiction: A Doctrinal Labyrinth with No Exit

My goal is not to categorize, critique, or refine existing doctrine, but to challenge the idea that the Supreme Court’s case-by-case approach to personal jurisdiction represents an arc of progress. In my view, all too often the Court’s apparent refinements operate as detours from the fundamental principles at stake. The result is a clutter of doctrinal tests that is inconsistent with principle and confuses more than it informs. In Part II, I briefly explore the traditional bases of jurisdiction and the Court’s elaboration of the minimum contacts test in International Shoe Co. v. State of Washington. 9 Here, I show that both the traditional and minimum contacts approaches are premised largely on the existence of connecting factors and reasonable expectations. In short, each form operates (with one exception) from the perspective of fundamental principles unadorned by doctrinal explication. Part III shows how the Court’s post-International Shoe jurisprudence has elevated fact-driven and case-specific doctrine over the underlying fundamental principles. This phenomenon is particularly apparent with respect to the purposeful availment requirement and with the standards applied to the stream-of-commerce and effects tests. Here, I also examine some of the resulting confusion in lower courts. Part IV offers and defends a model statute that is designed to return personal jurisdiction to a fundamental-principles approach shorn of restrictive and redundant doctrine. Part V offers concluding remarks

A Modified Theory of the Law of Federal Courts: The Case of Arising-under Jurisdiction

This Article examines and evaluates the legal process method as a perspective from which to assess the law of federal courts. It then offers a modified approach to legal process that encompasses the full range of considerations that ought to inform modern judicial decision-making in this context. With that modified approach in mind, the article describes and critiques the Supreme Court’s statutory arising-under jurisprudence, both as originally developed and as currently practiced. The article shows that while the Court’s early “arising-under” jurisprudence was founded on durable principles and on the reasoned application of those principles, more recent decisions by the Court have strayed from that approach in service of a more mechanical jurisprudence. This approach seems to be premised more on case-management concerns than on the congressionally endorsed value of providing a federal forum for the interpretation and application of federal law. The article ends by examining the Court’s decision in Gunn v. Minton. As the article explains, Gunn offered the Court an opportunity to redirect the arising-under analysis back toward a perspective that would more closely reflect the legitimate and enduring principles of federal question jurisdiction. The Court, however, missed that opportunity and instead endorsed a mechanical, four-part test as a substitute for reasoned analysis

\u3ci\u3eRoe v. Wade\u3c/i\u3e Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights

This Article details the Texas litigation on abortion rights in and out of the U.S. Supreme Court in 2021 and its implications for the future of constitutional rights. The litigation focused primarily on procedural issues like standing and sovereign immunity that prevented the plaintiffs’ claims of violation of fundamental constitutional rights to proceed to their merits. Such procedural doctrines have become a powerful tool in the hands of the Supreme Court used to control social and economic development. Thus procedure, originally conceived as the handmaid of justice, has become one of its main antagonists. This Article argues against such abuses of process, and that it is important for the Supreme Court to step in to consider the merits of such cases in order to enforce equality and liberty on a national basis. Judicial intervention is essential to the survival of a constitutional system that is based on principles of separation of powers, federalism, and respect for individual rights

The U.S. Constitution is Not a Code: Unraveling the Idea and the Meaning of Substantive Due Process

This Article delves into the nuanced meaning of substantive due process by tracing its historical and contemporary contexts. Beginning with the exploration of pre-ratification state constitutions, the debates surrounding ratification, and early Court views on the Constitution’s nature (perceived not as a code but an enduring collection of principles), the study then addresses the role and meaning of stare decisis as positive of history and tradition, and the role of judicial decision-making in our system starting from Marbury v. Madison. The Article concludes by linking substantive due process to universally recognized fundamental rights, emphasizing that our Constitution’s true intent is to safeguard these inalienable rights in service of our system and “We the People.

The Claim-Centered Approach to Arising-under Jurisdiction: A Brief Rejoinder to Professor Mulligan

My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies. My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does mean, however, that Gully points to the fundamental question presented in the jurisdictional analysis

The Claim-Centered Approach to Arising-under Jurisdiction: A Brief Rejoinder to Professor Mulligan

My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies. My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does mean, however, that Gully points to the fundamental question presented in the jurisdictional analysis

The Modern Law of Class Actions and Due Process

46 pagesThis Article begins with an examination of the fundamental principles of due process and shows how those principles have permeated our system of justice and, more particularly, the Federal Rules of Civil Procedure. We then proceed to examine the text of Rule 23 from its original form to its most current iteration, using the idea of due process as our interpretive guide. Finally, we will examine several Supreme Court decisions interpreting Rule 23. Our goal here is to study those decisions from the perspective of due process