At Legal Theory Blog, Larry Solum has a substantive post about CC/Devas (Mauritius) Limited, et. al v. Antrix Corp., which was argued to the Supreme Court on Monday. (I wrote about this case here, under the title "Judge Bumatay Strikes Yet Again"). From the introduction to Professor Solum's comments:
From an originalist [perspective], this case raises an important question about the meaning of the Due Process of Law Clause of the Fifth Amendment in the context of the constitutional limits on personal jurisdiction. In International Shoe v. Washington, the Supreme Court adopted the famous "minimum contacts" test for assessing the constitutionality of a states assertion of personal jurisdiction under the Fourteenth Amendment. Shoe's approach is clearly living constitutionalist: "fair play and substantial justice" was not baked into the Fourteenth Amendment's Due Process Clause, because it was originally understood as a requirement that state's apply their own legal procedures.
But Antrix involves the assertion of personal jurisdiction by federal courts, implicating the Fifth Amendment. This case is especially interesting from an originalist perspective, because the original public meaning of the Fifth Amendment Due Process of Law Clause was quite narrow: in 1791, "Due Process of Law" was understood narrowly to require legal process in the narrow sense that is still associated with "service of process." Max Crema and I demonstrated this in The Original Meaning of “Due Process of Law” in the Fifth Amendment. So, from an originalist perspective, Antrix is an easy case; the argument for the extension of the judicial invention of the minimum contacts test in Shoe from state to federal courts has not support in the original meaning of the phrase "Due Process of Law" in the Fifth Amendment….
But as I wrote in my earlier post:
Sadly, though, the Court could easily reverse the Ninth Circuit on statutory grounds and remand for consideration of the constitutional issue (which would be a win for Judge Bumatay, but not very interesting).
UPDATE: Based on this SCOTUSBlog report on the oral argument, looks like it will take the boring route.
Posted at 8:45 PM