Fairness & Tradition

US_Supreme_Court_Justice_William_Brennan_-_1976_official_portraitPerspectives on the relationship between notions of “fairness” and “tradition,” from that favorite proxy battlefield for constitutional values — in personam jurisdiction.

See the full opinion text by pulling  Burnham v. Superior Court of California, 495 U.S. 604 (1990). The question is whether obtaining personal jurisdiction over a defendant based only on his transient presence within the jurisdiction comports with constitutional guarantees of fairness. Justice Scalia answered for the majority in the affirmative — even when the events bringing the defendant into the jurisdiction were unrelated to the cause of action. After all, that’s the way it’s always been! Justice Brennan agreed, but found the manner in which Scalia reached that conclusion deeply disturbing: tradition, he argued, is no proxy for real fairness.

Fireworks ensued. Who you think has the better of this debate probably determines a lot of your worldview.

JUSTICE SCALIA delivered the Opinion of the Court (excerpt begins at 495 U.S. 623):

A few words in response to JUSTICE BRENNAN’s opinion concurring in the judgment: It insists that we apply “contemporary notions of due process” to determine the constitutionality of California’s assertion of jurisdiction. Post, at 632. But our analysis today comports with that prescription, at least if we give it the only sense allowed by our precedents. The “contemporary notions of due process” applicable to personal  jurisdiction are the enduring “traditional notions of fair play and substantial justice” established as the test by International Shoe. By its very language, that test is satisfied if a state court adheres to jurisdictional rules that are generally applied and have always been applied in the United States.

But the concurrence’s proposed standard of “contemporary notions of due process” requires more: It measures state-court jurisdiction not only against traditional doctrines in this country, including current state-court practice, but also against each Justice’s subjective assessment of what is fair and just. Authority for that seductive standard is not to be found in any of our personal jurisdiction cases. It is, indeed, an outright break with the test of “traditional notions of fair play and substantial justice,” which would have to be reformulated “our notions of fair play and substantial justice.”

The subjectivity, and hence inadequacy, of this approach becomes apparent when the concurrence tries to explain why the assertion of jurisdiction in the present case meets its standard of continuing-American-tradition-plus-innate-fairness. [. . . .]

The question is whether, armed with no authority other than individual Justices’ perceptions of fairness that conflict with both past and current practice, this Court can compel the States to make such a change on the ground that “due process” requires it. We hold that it cannot.

JUSTICE BRENNAN, concurring in the judgment (excerpt begins at 495 U.S. 628):

I agree with JUSTICE SCALIA that the Due Process Clause of the Fourteenth Amendment generally permits a state court to exercise jurisdiction over a defendant if he is served with process while voluntarily present in the forum State. 1 I do not perceive the need, however, to decide that a jurisdictional rule that “`has been immemorially the actual law of the land,'” ante, at 619, quoting Hurtado v. California, 110 U.S. 516, 528 (1884), automatically comports with due process simply by virtue of its “pedigree.” Although I agree that history is an important factor in establishing whether a jurisdictional rule satisfies due process requirements, I cannot agree that it is the only factor such that all traditional rules of jurisdiction are, ipso facto, forever constitutional. Unlike JUSTICE SCALIA, I would undertake an “independent inquiry into the . . . fairness of the prevailing in-state service rule.” Ante, at 621. I therefore concur only in the judgment. [. . . .]

Tradition, though alone not dispositive, is of course relevant to the question whether the rule of transient jurisdiction is consistent with due process.  Tradition is salient not in the sense that practices of the past are automatically reasonable today; indeed, under such a standard, the legitimacy of transient jurisdiction would be called into question because the rule’s historical “pedigree” is a matter of intense debate. The rule was a stranger to the common law  and was rather weakly implanted in American jurisprudence “at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted.” Ante, at 611. For much of the 19th century, American courts did not uniformly recognize the concept of transient jurisdiction,  and it appears that the transient rule did not receive wide currency until well after our decision in Pennoyer v. Neff, 95 U.S. 714 (1878).

Rather, I find the historical background relevant because, however murky the jurisprudential origins of transient jurisdiction, the fact that American courts have announced the rule for perhaps a century (first in dicta, more recently in holdings) provides a defendant voluntarily present in a particular State today “clear notice that [he] is subject to suit” in the forum.

[ Footnote 3, 495 U.S. at 631 ] Even JUSTICE SCALIA’s opinion concedes that sometimes courts may discard “traditional” rules when they no longer comport with contemporary notions of due process. For example, although, beginning with the Romans, judicial tribunals for over a millenium permitted jurisdiction to be acquired by force, see L. Wenger, Institutes of the Roman Law of Civil Procedure 46-47 (O. Fisk trans., rev. ed. 1986), by the 19th century, as JUSTICE SCALIA acknowledges, this method had largely disappeared. See ante, at 613. I do not see why JUSTICE SCALIA’s opinion assumes that there is no further progress to be made and that the evolution of our legal system, and the society in which it operates, ended 100 years ago.



  1. […] But Stevens’ concurrence, joined by Ginsburg & Sotomayor, can. These proxy wars are fairly regular in Court history and may, at least, allow us to put to bed the notion that Sotomayor was insufficiently liberal. If […]

  2. […] famous colloquy with Justice Brennan in Burnham v. Superior Court, 495 U.S. 604 (1990) (analysis). Concurring in the judgment, Justice Brennan makes Julia’s very point, that “tradition […]

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