Should the test for personal jurisdiction be the same for claims under state law and claims under federal law? Most courts of appeals have assumed yes, including the Second Circuit. But Judge Steven Menashi, dissenting from the Second Circuit's denial of rehearing en banc in Waldman v. Palestinian Liberation Organization, says maybe not, citing originalist scholarship and separate opinions by originalist-oriented judges. From the dissenting opinion:
The Supreme Court has reserved judgment on “whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court” as the Fourteenth Amendment does on a state court. Bristol-Myers Squibb, 582 U.S. at 269. Recent scholarship has shown that the Fifth Amendment does not impose such limits. See Brief for Constitutional Law Scholars Philip C. Bobbitt, Michael C. Dorf, and H. Jefferson Powell as Amici Curiae in Support of Plaintiffs-Appellants, Fuld v. PLO, 82 F.4th 74 (2023) (Nos. 22-76, 22-496), ECF No. 72; see also Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022); Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020).
Our court has acknowledged that “[r]ecent scholarship suggests that we err in viewing due process as an independent constraint on a court’s exercise of personal jurisdiction.” Gater Assets Ltd. v. AO Moldovagaz, 2 F.4th 42, 66 n.23 (2d Cir. 2021). And other judges have argued that the Due Process Clause of the Fifth Amendment does not limit the exercise of personal jurisdiction by the federal courts. See Lewis v. Mutond, 62 F.4th 587, 598 (D.C. Cir. 2023) (Rao, J., concurring) (“There is little (or no) evidence that courts and commentators in the Founding Era understood the Fifth Amendment’s Due Process Clause to impose a minimum contacts requirement. On the contrary, the widespread assumption was that Congress could extend federal personal jurisdiction by statute.”); Douglass v. Nippon Ysen Kabushiki Kaisha, 46 F.4th 226, 255 (5th Cir. 2022) (en banc) (Elrod, J., dissenting) (“The text, history, and structural implications of the Fifth Amendment Due Process Clause suggest that its original public meaning imposed few (if any) barriers to federal court personal jurisdiction.”); id. at 282 (Higginson, J., dissenting) (“[B]y importing Fourteenth Amendment constraints on personal jurisdiction, born out of federalism concerns, into process due to foreign corporations in global disputes, where those concerns don’t exist, our court makes several mistakes.”); id. at 284 (Oldham, J., dissenting) (“[A]s originally understood, the Fifth Amendment did not impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such limits by statute.”); see also Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., 91 F.4th 1340, 1352 (9th Cir. 2024) (Bumatay, J., dissenting from the denial of rehearing en banc) (“Justice Story opined that foreign-based defendants were owed no more than service authorized by Congress before being haled into our federal courts.”).
That view is correct, and I would adopt it. …
That's a lot of originalist firepower behind the idea that the Fifth Amendment due process clause does not limit the scope of Congress' legislative jurisdiction. But I'm not sure it can be squared with the Court's conclusion that the Fourteenth Amendment due process clause does limit the scope of the states' legislative jurisdiction, without at minimum addressing the larger question whether Fourteenth Amendment rights parallel the corresponding Bill of Rights rights. Maybe the enacting generation understood the Fourteenth Amendment to be broader in respect to limits on personal jurisdiction, but that would take some serious effort to demonstrate.
(Via Ed Whelan at Bench Memos.)
Posted at 6:04 AM