The Supreme Court’s recent plurality opinion
Comments
David, I agree that the plurality’s approach more closely tracks Pennoyer’s emphasis on sovereignty than does the dissent’s approach. However, I think that the plurality’s treatment of federalism in Nicastro differs from the majority’s treatment of federalism in Pennoyer. The opinion in Pennoyer envisioned a federal system in which lines on a map neatly divided regulatory authority into distinct spheres. Under Pennoyer, New Jersey’s power ends at New Jersey’s borders: it cannot summon noncitizens into the state. In contrast, the plurality in Nicastro acknowledges that borders are permeable. New Jersey can in theory reach outside its borders to grab a British defendant, but only under certain circumstances. Defining those circumstances requires a more nuanced assessment of horizontal federalism than Justice Field provided in Pennoyer.
Posted by: Allan Erbsen | Aug 19, 2011 5:01:18 PM
Scott, I agree that the due process inquiry should not categorically provide stricter scrutiny to state action invoking adjudicative jurisdiction than to state action invoking legislative jurisdiction. But I am not sure that choice of law is always more important than choice of forum. Here is one scenario where choice of forum might be more important than choice of law: suppose that a plaintiff from state X sues a defendant from state Y in a court in state X, and that X’s law is only slightly different than Y’s law. If litigating in the forum would impose burdens on the defendant that preclude mounting an effective defense, then arguably the choice of forum inquiry is more important to the defendant than the choice of law inquiry.
Posted by: Allan Erbsen | Aug 19, 2011 4:59:28 PM
Rather than being something new, isn’t the articulation of horizontal federalism in Kennedy’s opinion in Nicastro simply harkening back to Pennoyer v. Neff?
Posted by: David Levine | Aug 19, 2011 1:15:55 PM
I agree with your analysis here. The court has rarely focused on horizontal federalism. A key question is why is it harder for a state to apply personal jurisdiction than its choice of law? Isn’t the law applied more important than the place of the trial? Or, as the old saying goes is the defendant more interested in where he is hanged than if he is hanged? See The Renquist Court and Horizontal Federalism: An Evaluation and a Proposal for Moderate Constitutional Constraints on Horizontal Federalism at http://ssrn.com/abstract=597103 .
Posted by: Scott Fruehwald | Aug 17, 2011 2:08:56 PM