Abstract
INTRODUCTION
In 1990 I wrote an article arguing that the Due Process Clause of the United States Constitution's Fourteenth Amendment does not set strong limitations on state court jurisdictional assertions. I criticized the Supreme Court's "minimum contacts" jurisprudence, and suggested that the Court replace it with a test focusing on whether the defendant faced a "practical inability to defend." I contended, inter alia, that the constitutionalization of personal jurisdiction was not, as usually believed, suddenly brought about by Pennoyer v. Neff. My purpose was to suggest that the time had come to rethink the role that due process plays as the foundation of jurisdiction.
I argued that Pennoyer was amenable to two readings, one of which I called the "expansive" view and the other the "limited" view. The expansive view is the conventional one which postulates that Pennoyer imposed direct limitations on personal jurisdiction. Under this view, any assertion of personal jurisdiction beyond the common law jurisdictional principles violated due process. In contrast, the limited view asserts that Pennoyer invoked due process to guarantee defendants an opportunity to contest jurisdiction, but not to formulate the contents of jurisdictional rules and impose them on state courts. Under this view, states constitutionally could pass statutes expanding their jurisdictional reach beyond the common law. However, because of the pre-Pennoyer and Pennoyer interpretation of full faith and credit principles, any resulting judgment that exceeded the common law jurisdictional boundaries could be denied recognition in another government's court.