Sovereignty, judicial authority, and personal jurisdiction

Some thinking aloud on personal jurisdiction that I am trying to work through after last week's decision in J. McIntyre Machinery v. Nicastro.

In my several writings on jurisdictionality, I have repeatedly taken the view that jurisdiction means "legitimate authority" to do something (I borrow that phrase from Evan Tsen Lee), with adjudicative jurisdiction (in the sense of subject-matter jurisdiction) being the authority to hear a class of cases and to consider and resolve legal and factual issues in those case. In her dissent, Justice Ginsburg rejected the plurality's rhetorical move of repeatedly describing personal jurisdiction in terms of state sovereignty and sovereign authority rather than individual liberty concerns of due process; I agreed with her on this point.

A blog reader e-mailed me to take issue with this dichotomy, suggesting that due process necessarily must take into account whether the state has legitimate authority over the defendant, because due process protects defendants against an assertion of authority by a sovereign lacking a legitimate interest in exercising that authority. Justice Kennedy made the same basic point:

Personal jurisdiction, of course, restricts “judicial power not as a matter of sovereignty, but as a matter of individual liberty,” for due process protects the individual’s right to be subject only to lawful power. Insurance Corp., 456 U. S., at 702. But whether a judicial judgment is lawful depends on whether the sovereign has authority to render it.

I am trying to work out in my head why the structural language that Kennedy used is so troubling.

Maybe subject matter and personal jurisdiction reflect different types of judicial authority. Subject matter jurisdiction is authority to hear and resolve the legal and factual issues in the case. Personal jurisdiction is the authority to make the defendant do something (answer, litigate, obey a judgment). But again, both require an exercise of governmental authority within the judicial branch.

Maybe the difference is the source of authority. A court's authority over a defendant (i.e., personal jurisdiction) in a given case derives from the defendant's actions in either consenting to jurisdiction or doing something as part of the underlying events to purposefully avail himself of the state and its laws. It seems to me that this framing fits with the due process grounding for personal jurisdiction, because it leaves state authority entirely in the defendant's control. If that is right, then Kennedy's insistence that foreseeability must yield to concerns for state authority is circular. State authority over the defendant derives from foreseeability and foreseeability creates state authority. That is, if it is foreseeable to the defendant that, because of his conduct, he could be haled into court in a state, then the state has authority over him. This is more than "freeform notions of fundamental fairness" and more than a mere convenience inquiry, which form the secondary inquiry under the Shoe framework (or at least they did prior to Monday). The defendant still must take some steps to interact with the state or people within the state to establish jurisdiction, convenient or not.

The other problem with framing this in sovereign terms is the problem of waivability, since a defendant can consent to litigate in a forum simply by not contesting personal jurisdiction. But if limits on a sovereign are structural (as with subject matter jurisdiction) they cannot be waived by individual choices or individual actions (a point Ginsburg makes, citing Insurance Corp. of Ireland). This is why Pennoyer's twin postulates--a state has absolute authority over all persons and property within and no authority over persons and property without--could not be entirely true.

Finally, there is the possibility that this is all just rhetoric and semantics: Speaking in sovereign terms, while grounding the analysis in due process and the defendant's actions, gets us to the same point, while avoiding a descent into simply convenience and reasonableness.  Again, this is all thinking out loud (which is part of why we blog).