Title

In Defense of Territorial Jurisdiction

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2018

ISSN

0041-9494

Language

en-US

Abstract

As the story is traditionally told, the minimum contacts test introduced in International Shoe v Washington freed personal jurisdiction from the dark age of territorialism and gave courts the flexibility to expand the scope of personal jurisdiction to keep pace with modern society. While scholars have critiqued the minimum contacts test on a number of grounds, the narrative that the Territorial Model was inherently problematic—and that Shoe was a step in the right direction— has gone largely unchallenged.

This Article challenges that narrative and argues for a return to the Territorial Model. While Shoe is traditionally cast as a step toward expanding personal jurisdiction, the minimum contacts test has now become a greater restraint on state power than the territorial regime that preceded it. This constriction of state power has been coupled with a doctrine that has become increasingly confusing and malleable, unmoored from coherent constitutional and theoretical foundations, and unable to respond to economic and technological changes. The Territorial Model, by contrast, gave states numerous tools to assert jurisdiction over out-of-state defendants, including quasi in rem jurisdiction, consent statutes, and constructive presence. The rules governing personal jurisdiction were relatively straightforward and relied on objective criteria that were easily ascertainable with minimal litigation costs. Once the mythology surrounding personal jurisdiction doctrine is dismantled, the original wisdom of the Territorial Model, and the benefits of returning to it, are clear.

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