Originalism and Personal Jurisdiction
Larry Solum has an interesting post on Ford Motor Company v. Montana Eighth Judicial District Court, to be argued Wednesday morning. He articulates two originalist theories of due process and personal jurisdiction:
Justice Black’s Theory: The phrase “Due Process of Law” means the process that is due under the positive law of the state at the time the rights violation occurs. If Justice Black is correct, then Montana may assert personal jurisdiction over Ford if it has enacted a long arm statute that authorizes such jurisdiction.
Justice Scalia’s Theory: The phrase “Due Process of Law” means the process that was due as of 1868, the date of ratification of the Fourteenth Amendment. Justice Scalia believed that this means that Pennoyer v. Neff provides the relevant legal standard. Under Pennoyer, Ford cannot be served outside the territory of Montana, and hence personal jurisdiction would be improper. (Actually, I’m not sure how Ford was served, but that must be in the record somewhere.)
On Twitter, Solum raises a third th
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