Patrick Joseph Borchers, Creighton University, has just posted on SSRN two articles on the history of jurisdiction. The Origins of Diversity Jurisdiction, the Rise of Legal Positivism, and a Brave New World for Erie and Klaxon appeared in the Texas Law Review. Here's the abstract:
The conventional explanation for the inclusion the grant of diversity jurisdiction (i.e., federal court jurisdiction in cases between citizens of different states) in the Constitution and the first Judiciary Act is that it was necessary to prevent state-court discrimination against out-of-staters. However, the weight of the historical evidence supports the conclusion that diversity jurisdiction was also aimed at the application of parochial state laws, particularly state debtor protection enactments. This second purpose of diversity jurisdiction cuts against the Supreme Court's 1938 decision in Erie Railroad v. Tompkins which held that federal courts exercising diversity jurisdiction must apply the same substantive law as their state court counterparts. This article proposes a partially implementing diversity jurisdiction by over-ruling the Supreme Court's 1941 decision in Klaxon v. Stentor Electric which held that the Erie principle also requires federal courts to adhere to state choice-of-law rules. If diversity courts were to apply an independent choice-of-law approach they could avoid the forum-law bias that pervades most of state choice-of-law doctrine.
The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again appeared in the UC Davis Law Review. Here's the abstract:
In 1990, in Burnham v. Superior Court, the U.S. Supreme Court upheld the traditional rule that a civil defendant could be subjected to personal jurisdiction in a state simply by being physically served with the summons while in the state, no matter how brief or casual the defendant's presence. The validity of this tag rule of jurisdiction had been assumed to be in jeopardy as a result of the Supreme Court's 1977 decision in Shaffer v. Heitner which stated in dictum that it was unconstitutional for a state to exercise jurisdiction over any defendant lacking minimum contacts with the state. The Burnham Court, however, could not agree on a rationale. Four justices essentially rejected Shaffer and concluded that the historical pedigree of the tag rule immunized it from constitutional scrutiny. Four others accepted the Shaffer rationale but applied a watered-down version of the minimum contacts test. Justice Stevens in his lone opinion apparently agreed with both rationales. Burnham lays bare the confused origins of the notion that issues of state-court jurisdiction are a matter of constitutional significance. This article argues that this confusion stems from the highly ambiguous 1877 opinion in Pennoyer v. Neff. While Pennoyer seemingly introduced the notion that the Due Process Clause limited state court jurisdiction, plausibly the opinion meant only that due process principles guarantee a defendant an opportunity to challenge jurisdiction. This shaky foundation has led to a confused Supreme Court jurisprudence in this area. The article argues that the Supreme Court should dramatically limit the doctrine and invalidate only those attempted exercises of jurisdiction that put the defendant at a practical disadvantage.
