William & Mary Law Review
Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction allocates power between states in a way that can support or undermine regulatory interests, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.
The jurisdictional dilemma posed by the in-state effects of out-of-state conduct is timeless and timely. It is timeless because it has arisen in thousands of cases and is an unavoidable feature of a federal system that allocates judicial power between fifty coequal states. It is timely because the Supreme Court’s 2014 decision in Walden v. Fiore directly addressed effects jurisdiction for the first time since 1984.
This Article critiques Walden and proposes a new approach to the broader constitutional question by focusing on five conclusions. First, it illustrates how Walden relies on a distinction between a defendant’s contacts with the forum state and a defendant’s contacts with the forum’s residents. Second, it critiques the forum/resident distinction as imprecise, misleading, and a revival of the formality that plagued nineteenth-century personal jurisdiction jurisprudence. It also offers a new account of Chief Justice Stone’s reasoning in International Shoe, a case about enforcing taxes, by comparing Shoe to Stone’s strikingly similar opinion in a case about imposing taxes. The comparison highlights Shoe’s hostility toward the sort of formality that animates Walden. Third, it contends that lower courts might salvage the Court’s emphasis on forum contacts by focusing on the defendant’s contacts with the forum’s law, in effect merging constitutional limits on the state’s legislative and judicial power. Fourth, it suggests that state regulatory interests are more important than commonly recognized when local effects are severe, such as an Ebola quarantine. Fifth, it proposes a new approach to analyzing jurisdiction by considering whether actors who commit intentional torts without a geographic focal point assume the risk of being sued wherever harm occurs.
These conclusions suggest that Walden’s reasoning would be misleading if read literally and a contextually. The opinion leaves more room for exercising jurisdiction in effects cases than its dismissive veneer implies.
Allan Erbsen, Personal Jurisdiction Based on the Local Effects of Intentional Misconduct, 57 Wm. & Mary L. Rev. 385 (2015), available at https://scholarship.law.umn.edu/faculty_articles/425.