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William B. Rubenstein, Deconstitutionalizing Personal Jurisdiction: A Separation of Powers Approach (Harv. Pub. L. Working Paper No. 20-34, 2020).

Abstract: The Roberts Court has sought to clarify the constitutional norms governing personal jurisdiction so as to give defendants greater certainty in arranging their business affairs. The Court’s effort has been guided by the implicit assumption that every personal jurisdiction case necessarily rises to the level of constitutional concern. But the only reason that most personal jurisdiction decisions raise constitutional concerns is because the vast majority of states maintain content-less long-arm statutes: in the complete absence of statutory norms, every instance of service of process poses a mini constitutional crisis. With no underlying statutory norms at issue, the Court’s constitutional decisions have long been legislating personal jurisdiction rules instead of adjudicating the constitutionality of legislatively enacted rules. The Court should fix this longstanding separation of powers problem by issuing a simple ruling: the Due Process Clause renders content-less long-arm statutes void for vagueness. That ruling would require state legislatures to enact laws specifying the situations in which service of process over non-residents was authorized. Personal jurisdiction litigation would then turn on statutory questions, with the Constitution held in reserve for particularly egregious power grabs. This approach would lead to differing outcomes in the two Ford Motor Company cases before the Court in the 2020-2021 Term: the Minnesota statute would fail for vagueness, while application of the Montana statute to Ford in the circumstances of that action would obviously not be so egregious as to rise to the level of a constitutional violation. One need not go so far as to say that the Due Process Clause has no role to play in the field of personal jurisdiction to appreciate that it should be cast in a supporting role far narrower than the leading part the Court has handed it for too long.