A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be tested in the first half of the twentieth century, as the rise of interstate commerce, transportation, and communication technologies prompted states to reach beyond their borders by expanding the jurisdictional limits of their courts through now familiar long-arm statutes. In International Shoe Co. v.Washington, the Court situated the due process inquiry related to a fair location for trial in the personal jurisdiction doctrine—and thus relegated venue to its current subconstitutional status. Forcing the square peg of venue interests into the round hole of personal jurisdiction was, on a theoretical level, an odd choice from the outset. This theoretical foible has plagued the Court’s personal jurisdiction jurisprudence ever since. As a result, the Court’s personal jurisdiction cases are marked by fractured decisions with dueling opinions that articulate conflicting visions of the nature of the due process inquiry in personal jurisdiction analysis. Some Justices minimize the fairness inquiry because they are unable to reconcile the dissonance of individual rights considerations with the origins and core of personal jurisdiction. Other Justices elevate the fairness inquiry to the fore, as they see individual rights protection as critical to the due process analysis. Reconceptualizing the due process fair location inquiry as venue acknowledges the validity of both positions. Fairness in location has little to do with jurisdiction and everything to do with due process and venue. Recognition of the constitutional aspects of venue brings clarity to the Supreme Court’s muddled personal jurisdiction case law. In addition, constitutional venue would provide a basic measure of due process in a small but significant category of cases—most notably detained deportation proceedings—where defendants are prejudiced when they must defend themselves in gravely unfair locations because of the firmly established but deeply flawed conception of venue as lacking constitutional content.
Peter L. Markowitz and Lindsay C. Nash,
66 Fla. L. Rev.
Available at: http://scholarship.law.ufl.edu/flr/vol66/iss3/5