Why Tag Was Doubted

Why Tag Was Doubted

Tag jurisdiction rests on a rule that nineteenth-century doctrine demanded and modern doctrine seemed to forbid. Burnham put the resulting question squarely: whether due process requires a similar connection between the litigation and the defendant's contacts with the state when the defendant is physically present there at the time of service.¹ The question comes out of three steps in the history of jurisdiction: a rule that made physical power over the defendant everything, a modern test that made it unnecessary for absent defendants, and a sweeping statement that appeared to put every basis of jurisdiction under that test.

The first step begins in England, where a court's jurisdiction depended on its de facto power over the defendant. If a court official could seize him within the court's territory, there was jurisdiction; otherwise there was none.² Many common-law personal actions were quasi-criminal, and a court could not enforce a judgment without physical control of the defendant, usually secured by a writ of arrest. Some historians trace the territorial basis of jurisdiction to that need.³ American judges carried the theory across by treating each state, for jurisdictional purposes, as an independent nation.⁴

Pennoyer v. Neff applied that theory to a dispute over land. Mitchell had obtained an Oregon judgment against Neff, and Neff's land was sold at a sheriff's sale to satisfy it. The Supreme Court held the judgment invalid. Neff had not been personally served in Oregon and had not consensually appeared, so the judgment could not rest on the state's power over persons within its borders. Nor could it rest on power over property, because the land had not been brought before the court by attachment before judgment. Even actual notice would not have helped, since "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established." The sale transferred no title, and Neff regained his land.⁵

The decision left two rules, and the second is the one that later caused trouble. Physical power over the defendant or his property was necessary: no tie to the state, however close, could sustain jurisdiction without it. A nonresident who could not be found in the state could not be sued there, though property within the state could be reached in rem wherever its owner was.⁶ Physical power was also sufficient: it justified jurisdiction however weak the defendant's ties to the state.⁷ The sufficiency half is what later made tag jurisdiction possible, and what later made it suspect.

A rule that demands physical power at the moment of suit works while people stay near home, and it strained as the nation modernized. A nonresident motorist could drive into a state, cause an accident, and leave; a corporation's products could reach a state and injure someone there without the corporation ever appearing.⁸ States answered with laws that reached such defendants, and the Court first upheld those laws under Pennoyer's formula by calling them consent, as in Hess v. Pawloski, or presence. Observers soon noted that the consent and presence were purely fictional.⁹ The presence rule had a flaw in the other direction as well. Because physical presence sufficed however brief the stay, a nonresident could be served while driving through the state or flying over it, and jurisdiction turned on accident.¹⁰

International Shoe Co. v. Washington dropped the fictions and supplied a direct test for the absent defendant. Due process, the Court said, requires only that a defendant who is "not present within the territory of the forum" have minimum contacts with it such that suit does not offend "traditional notions of fair play and substantial justice." Contacts tied to the litigation may take the place of physical presence, and a state may dispense with in-forum personal service on a nonresident in a suit arising out of the nonresident's activities in the state.¹¹ That removed the necessity half of the old rule. Its terms, however, were built for the absent defendant, and the fact that presence is no longer necessary does not show that presence is no longer sufficient.

The doubt came from Shaffer v. Heitner. The Court there struck down the broad use of quasi in rem jurisdiction to circumvent the limits on in personam jurisdiction, and it held all claims of jurisdiction, whether in personam, in rem, or quasi in rem, to the standards of minimum contacts and fair play and substantial justice.¹² Its words were that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny."¹³ Read literally, that sentence reaches transient presence, the traditional basis of jurisdiction most at odds with minimum contacts. Transient jurisdiction rests on the territoriality principles of Pennoyer and on the state's sovereign power over everyone within its borders, and after Shaffer those principles were generally viewed as rejected. A brief visit is a contact with the state, but where the defendant, the forum, and the litigation share no other contacts, the propriety of jurisdiction was questioned.¹⁴ A few opinions after 1978 went further and declared tag unconstitutional, a step the Burnham majority later called erroneous.¹⁵

Two short cases show how the two halves of the old rule fared.

Absence from the state no longer defeats jurisdiction when the claim grows out of the defendant's forum contacts.¹⁶ The sufficiency half of the old rule is harder, because it comes into play when the claim has no connection to the forum at all.

Under Pennoyer the answer was yes, because personal service inside the forum sufficed whatever brought the defendant there. Under the contacts framework read literally, the answer looks like no: nothing Dalia did in Hawaii gave rise to the claim, so the Hawaii court would have neither specific nor general jurisdiction over her.¹⁷ The two tests give opposite answers on identical facts, and International Shoe cannot choose between them because it addressed absent defendants. Burnham, the case taken up next, made the choice.