In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.
Registration-based consent to jurisdiction has a long pedigree, dating back to the years before the Fourteenth Amendment's ratification. For much of its history, however, registration-based jurisdictional consent languished in obscurity, as general "doing business" jurisdiction overshadowed the doctrine. With the Supreme Court's recent "at-home" trilogy sounding the death knell of general "continuous and systematic" contacts jurisdiction, the constitutional propriety of interpreting a state corporate registration scheme to require the corporation's all-purpose jurisdictional consent for claims arising anywhere in the world is in doubt. Instead of litigating the meaning and ongoing validity of these longstanding registration statutes, we recommend that the states adopt a modernized jurisdictional-consent statute that ensures an appropriate state jurisdictional reach and operates within the Supreme Court's pronounced adjudicative framework.
We draft and evaluate a proposal for such a statute, which we believe the Uniform Law Commission is especially well situated to consider, refine, and promulgate for the states' benefit. Such a statute would avoid the wasteful expense of litigating the interpretation of registration statutes initially adopted during the heyday of the horse and buggy. More importantly, the proposed act would allow the states to assert their sovereign authority to ensure access to justice for their residents after the dismantling of general jurisdiction. By precisely tailoring the statute to states' sovereign interests, the proposed act avoids constitutional pitfalls while still providing an effective jurisdictional reach for the states after the Roberts Court's jurisdictional revolution.
Personal Jurisdiction, General Jurisdiction, Specific Jurisdiction, Consent, Corporate Registration, Due Process Clause, Dormant Commerce Clause, Unconstitutional Conditions Doctrine, State Sovereignty, Uniform Law Commission, Model Corporate Registration Jurisdictional Consent Act
57 Harvard Journal on Legislation 377 (2020)
Rhodes, Charles W. (Rocky) and Robertson, Cassandra Burke, "A New State Registration Act: Legislating a Longer Arm for Personal Jurisdiction" (2020). Faculty Publications. 2067.