Lead Opinion
announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Kennedy join, and in which Justice White joins with respect to Parts I, II-A, II-B, and II-C.
The question presented is whether the Due Process Clause of the Fourteenth Amendment denies California courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State.
I
Petitioner Dennis Burnham married Francie Burnham in 1976 in West Virginia. In 1977 the couple moved to New Jersey, where their two children were born. In July 1987 the Burnhams decided to separate. They agreed that Mrs. Burnham, who intended to move to California, would take custody of the children. Shortly before Mrs. Burnham departed for California that same month, she and petitioner agreed that she would file for divorce on grounds of “irreconcilable differences.”
In October 1987, petitioner filed for divorce in New Jersey state court on grounds of “desertion.” Petitioner did not, however, obtain an issuance of summons against his wife and did not attempt to serve her with process. Mrs. Burnham, after unsuccessfully demanding that petitioner adhere to
In late January, petitioner visited southern California on business, after which he went.north to visit his children in the San Francisco Bay area, where his wife resided. He took the older child to San Francisco for the weekend. Upon returning the child to Mrs. Burnham’s home on January 24, 1988, petitioner was served with a California court summons and a copy of Mrs. Burnham’s divorce petition. He then returned to New Jersey.
Later that year, petitioner made a special appearance in the California Superior Court, moving to quash the service of process on the ground that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the State for the purposes of conducting business and visiting his children. The Superior Court denied the motion, and the California Court of Appeal denied mandamus relief, rejecting petitioner’s contention that the Due Process Clause prohibited California courts from asserting jurisdiction over him because he lacked “minimum contacts” with the State. The court held it to be “a valid jurisdictional predicate for in personam jurisdiction” that the “defendant [was] present in the forum state and personally served with process.” App. to Pet. for Cert. 5. We granted certiorari.
II
A
The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y. B. Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng. Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Coke Rep. 68b, 77a, 77 Eng. Rep. 1027, 1041 (K. B. 1612). Traditionally that proposition was embodied in the phrase coram non judice,
To determine whether the assertion of personal jurisdiction is consistent with due process, we have long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State’s authority. That criterion was first announced in Pennoyer v. Neff, supra, in which we stated that due process “mean[s] a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights,” id., at 733, including the “well-established principles of public law respecting the jurisdiction of an independent State over persons and property,” id., at 722. In what has become the classic expression of the criterion, we said in International Shoe Co. v. Washington,
B
Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter
Recent scholarship has suggested that English tradition was not as clear as Story thought, see Hazard, A General Theory of State-Court Jurisdiction, 1965 S. Ct. Rev. 241, 253-260; Ehrenzweig, The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum Conveniens, 65 Yale L. J. 289 (1956). Accurate or not, however, judging by the evidence of contemporaneous or near-contemporaneous decisions, one must conclude that Story’s understanding was shared by American courts at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted. The following passage in a decision of the Supreme Court of Georgia, in an action on a debt having no apparent relation to the defendant’s temporary presence in the State, is representative:
“Can a citizen of Alabama be sued in this State, as he passes through it?
*612 “Undoubtedly he can. The second of the axioms of Huberus, as translated by Story, is: ‘that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof.’ (Stor. Conf. Laws, §29, Note 3.)
“. . . [A] citizen of another State, who is merely passing through this, resides, as he passes, wherever he is. Let him be sued, therefore, wherever he may, he will be sued where he resides.
“The plaintiff in error, although a citizen of Alabama, was passing through the County of Troup, in this State, and whilst doing so, he was sued in Troup. He was liable to be sued in this State, and in Troup County of this State.” Murphy v. J. S. Winter & Co.,18 Ga. 690 , 691-692 (1855).
See also, e. g., Peabody v. Hamilton,
Decisions in the courts of many States in the 19th and early 20th centuries held that personal service upon a physically present defendant sufficed to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there. See, e. g., Vinal v. Core,
This American jurisdictional practice is, moreover, not merely old; it is continuing. It remains the practice of, not only a substantial number of the States, but as far as we are aware all the States and the Federal Government — if one disregards (as one must for this purpose) the few opinions since 1978 that have erroneously said, on grounds similar to those that petitioner presses here, that this Court’s due process decisions render the practice unconstitutional. See Nehemiah v. Athletics Congress of U. S. A.,
C
Despite this formidable body of precedent, petitioner contends, in reliance on our decisions applying the International Shoe standard, that in the absence of “continuous and systematic” contacts with the forum, see n. 1, supra, a nonresident defendant can be subjected to judgment only as to matters that arise out of or relate to his contacts with the forum. This argument rests on a thorough misunderstanding of our cases.
The view of most courts in the 19th century was that a court simply could not exercise in personam jurisdiction over a nonresident who had not been personally served with process in the forum. See, e. g., Reber v. Wright,
Later years, however, saw the weakening of the Pennoyer rule. In the late 19th and early 20th centuries, changes in the technology of transportation and communication, and the tremendous growth of interstate business activity, led to an “inevitable relaxation of the strict limits on state jurisdiction” over nonresident individuals and corporations. Hanson v. Denckla,
“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding on him. Pennoyer v. Neff,95 U. S. 714 , 733. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”326 U. S., at 316 (citations omitted).
“[A] process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. . . . [That which], in substance, has been immemorially the actual law of the land . . . therefore] is due process of law. But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.” Hurtado v. California,110 U. S. 516 , 528-529 (1884).
The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.
D
Petitioner’s strongest argument, though we ultimately reject it, relies upon our decision in Shaffer v. Heitner, 433
It goes too far to say, as petitioner contends, that Shaffer compels the conclusion that a State lacks jurisdiction over an individual unless the litigation arises out of his activities in the State. Shaffer, like International Shoe, involved jurisdiction over an absent defendant, and it stands for nothing more than the proposition that when the “minimum contact” that is a substitute for physical presence consists of property ownership it must, like other minimum contacts, be related to the litigation. Petitioner wrenches out of its context our statement in Shaffer that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny,”
“The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.
“We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the*621 standards set forth in International Shoe and its progeny.” Ibid, (emphasis added).
Shaffer was saying, in other words, not that all bases for the assertion of in personam jurisdiction (including, presumably, in-state service) must be treated alike and subjected to the “minimum contacts” analysis of International Shoe; but rather that quasi in rem jurisdiction, that fictional “ancient form,” and in personam jurisdiction, are really one and the same and must be treated alike — leading to the conclusion that quasi in rem jurisdiction, i. e., that form of in personam jurisdiction based upon a “property ownership” contact and by definition unaccompanied by personal, in-state service, must satisfy the litigation-relatedness requirement of International Shoe. The logic of Shaffer’s holding — which places all suits against absent nonresidents on the same constitutional footing, regardless of whether a separate Latin label is attached to one particular basis of contact — does not compel the conclusion that physically present defendants must be treated identically to absent ones. As we have demonstrated at length, our tradition has treated the two classes of defendants quite differently, and it is unreasonable to read Shaffer as casually obliterating that distinction. International Shoe confined its “minimum contacts” requirement to situations in which the defendant “be not present within the territory of the forum,”
It is fair to say, however, that while our holding today does not contradict Shaffer, our basic approach to the due process question is different. We have conducted no independent inquiry into the desirability or fairness of the prevailing instate service rule, leaving that judgment to the legislatures that are free to amend it; for our purposes, its validation is its pedigree, as the phrase “traditional notions of fair play and substantial justice” makes clear. Shaffer did conduct such an independent inquiry, asserting that “‘traditional notions of fair play and substantial justice’ can be as readily offended
Ill
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 per
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-piws-innatefairness. JUSTICE Brennan lists the “benefits” Mr. Burn-ham derived from the State of California — the fact that, during the few days he was there, “[h]is health and safety [were] guaranteed by the State’s police, fire, and emergency medical services; he [was] free to travel on the State’s roads and waterways; he likely enjoy[ed] the fruits of the State’s economy.” Post, at 637-638. Three days’ worth of these benefits strike us as powerfully inadequate to establish, as an abstract matter, that it is “fair” for California* to’decree the ownership of all Mr. Burnham’s worldly goods acquired during the 10 years of his marriage,, and the custody over his children. We daresay a contractual- exchange swapping-those benefits for that power would! not survive the “unconscionability” provision of the Uniform-Commercial Code. Even less persuasive are the other “fairness” factors alluded to by Justice Brennan. It would create “an asymmetry,” we are told, if Burnham were permitted (as he is) to appear
There is, we must acknowledge, one factor mentioned by Justice Brennan that both relates distinctively to the assertion of jurisdiction on the basis of personal in-state service and is fully.persuasive — namely, the fact that a defendant voluntarily present in a particular State has a “reasonable expectatio[n]” that he is subject to suit there. Post, at 637. By formulating it as a “reasonable expectation” Justice Brennan makes that seem like a “fairness” factor; but in reality, of course, it is just tradition masquerading as “fairness.” The only reason for charging Mr. Burnham with the reasonable expectation of being subject to suit is that the
While Justice Brennan’s concurrence is unwilling to confess that the Justices of this Court can possibly be bound by a continuing American tradition that a particular procedure is fair, neither is it willing to embrace the logical consequences of that refusal — or even to be clear about what consequences (logical or otherwise) it does embrace. Justice Brennan says that “[f]or these reasons [i. e., because of the reasonableness factors enumerated above], as a rule the exercise of personal jurisdiction over a defendant based on his voluntary presence in the forum will satisfy the requirements of due process.” Post, at 639. The use of the word “rule” conveys the reassuring feeling that he is establishing a principle of law one can rely upon — but of course he is not. Since Justice Brennan’s only criterion of constitutionality is “fairness,” the phrase “as a rule” represents nothing more than his estimation that, usually, all the elements of “fairness” he discusses in the present case will exist. But what if they do not? Suppose, for example, that a defendant in Mr. Bum-ham’s situation enjoys not three days’ worth of California’s “benefits,” but 15 minutes’ worth. Or suppose we remove one of those “benefits” — “enjoy[ment of] the fruits of the State’s economy” — by positing that Mr. Burnham had not
The difference between us and Justice Brennan has nothing to do with whether “further progress [is] to be made” in the “evolution of our legal system.” Post, at 631, n. 3. It has to do with whether changes are to be adopted as progressive by the American people or decreed as progressive by the Justices of this Court. Nothing we say today prevents individual States from limiting or entirely abandoning the instate-service basis of jurisdiction. And nothing prevents an overwhelming majority of them from doing so, with the consequence that the “traditional notions of fairness” that this Court applies may change. But the States have overwhelmingly declined to adopt such limitation or abandonment, evidently not considering it to be progress.
* * *
Affirmed.
Notes
We have said that “[e]ven when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State, due process is not offended by a State’s subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation.” Helicopteros Nacionales de Colombia v. Hall,
Justice Brennan’s assertion that some of these eases involved dicta rather than holdings, post, at 636-637, n. 10, is incorrect. In each case, personal service within the State was the exclusive basis for the judgment that jurisdiction existed, and no other factor was relied upon. Nor is it relevant for present purposes that these holdings might instead have been rested on other available grounds.
Given this striking fact, and the unanimity of both cases and commentators in supporting the in-state service rule, one can only marvel at Justice Brennan’s assertion that the rule “was rather weakly implanted in American jurisprudence,” post, at 633-634, and “did not receive wide currency until well after our decision in Pennoyer v. Neff,” post, at 635. I have cited pr e-Pennoyer eases clearly supporting the rule from no less than nine States, ranging from Mississippi to Colorado to New Hampshire, and two highly respected pr e-Pennoyer commentators. (It is, moreover, impossible to believe that the many other cases decided shortly after Pennoyer represented some sort of instant mutation — or, for that matter, that Pennoyer itself was not drawing upon clear contemporary understanding.) Justice Brennan cites neither cases nor commentators from the relevant period to support his thesis (with exceptions I shall discuss presently), and instead relies upon modern secondary sources that do not mention, and were perhaps unaware of, many of the materials I have discussed. The cases cited by Justice Brennan, post, at 634-635, n. 9, do not remotely support his point. The dictum he quotes from Coleman’s Appeal,
Shaffer may have involved a unique state procedure in one respect: Justice Stevens noted that Delaware was the only State that treated the place of incorporation as the situs of corporate stock when both owner and custodian were elsewhere. See
1 find quite unacceptable as a basis for this Court’s decisions Justice Brennan’s view that “the raison d’etre of various constitutional doctrines designed to protect out-of-staters, such as the Art. IV Privileges and Immunities Clause and the Commerce Clause,” post, at 640, n. 14, entitles this Court to brand as “unfair,” and hence unconstitutional, the refusal of all 50 States “to limit or abandon bases of jurisdiction that have become obsolete,” post, at 639, n. 14. “Due process” (which is the constitutional text at issue here) does not mean that process which shifting majorities of this Court feel to be “due”; but that process which American society — self-interested American society, which expresses its judgments in the laws of self-interested States — has traditionally considered “due.” The notion that the Constitution, through some penumbra emanating from the Privileges and Immunities Clause and the Commerce Clause, establishes this Court as a Platonic check upon the society’s greedy adherence to its traditions can only be described as imperious.
Concurrence Opinion
with whom Justice Marshall, Justice Blackmun, and Justice O’Connor join, concurring in the judgment.
I agree with Justice Scalia that the Due Process Clause of the Fourteenth Amendment generally permits a state
I
I believe that the approach adopted by Justice Scalia’s opinion today — reliance solely on historical pedigree — is foreclosed by our decisions in International Shoe Co. v. Washington,
While our holding in Shaffer may have been limited to quasi in rem jurisdiction, our mode of analysis was not. Indeed, that we were willing in Shaffer to examine anew the appropriateness of the quasi in rem rule — until that time dutifully accepted by American courts for at least a century— demonstrates that we did not believe that the “pedigree”, of a jurisdictional practice was dispositive in deciding whether it was consistent with due process. We later characterized Shaffer as “abandoning] the outworn rule of Harris v. Balk,
II
Tradition, though alone not dispositive, is of course relevant to the question whether the rule of transient jurisdiction is consistent with due process.
Rather, I find the historical background relevant because, however murky the jurisprudential origins of transient juris
By visiting the forum State, a transient defendant actually “avail[s]” himself, Burger King, supra, at 476, of significant benefits provided by the State. His health and safety are guaranteed by the State’s police, fire, and emergency medical services; he is free to travel on the State’s roads and water
The potential burdens on a transient defendant are slight. “ ‘[Mjodern transportation and communications have made it much less burdensome for a party sued to defend himself’” in a State outside his place of residence. Burger King, supra, at 474, quoting McGee v. International Life Ins. Co.,
I use the term “transient jurisdiction” to refer to jurisdiction premised solely on the fact that a person is served with process while physically present in the forum State.
Our reference in International Shoe to “ ‘traditional notions of fair play and substantial justice,’”
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 (0. 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.
Some lower courts have concluded that transient jurisdiction did not survive Shaffer. See Nehemiah v. Athletics Congress of U. S. A.,
Although commentators have disagreed over whether the rule of transient jurisdiction is consistent with modern conceptions of due process, that they have engaged in such a debate at all shows that they have rejected the methodology employed by Justice Scalia’s opinion today. See
See Restatement (Second) of Conflict of Laws § 24, Comment b, p. 29 (Draft of Proposed Revisions, Apr. 15, 1986) (“One basic principle underlies all rules of jurisdiction. This principle is that a state does not have jurisdiction in the absence of some reasonable basis for exercising it. With respect to judicial jurisdiction, this principle was laid down by the Supreme Court of the United States in International Shoe . . . .”); id., at 30 (“Three factors are primarily responsible for existing rules of judicial jurisdiction. Present-day notions of fair play and substantial justice constitute the first factor”); id., § 28, Comment b, at 41, (“The Supreme Court held in Shaffer v. Heitner that the presence of a thing in a state gives that state jurisdiction to determine interests in the thing only in situations where the exercise of such jurisdiction would be reasonable. ... It must likewise follow that considerations of reasonableness qualify the power of a state to exercise personal jurisdiction over an individual on the basis of his physical presence within its territory”); Restatement (Second) of Judgments § 8, Comment a, p. 64 (Tent. Draft No. 5, Mar. 10, 1978) (Shaffer establishes “ ‘minimum contacts’ in place of presence as the principal basis for territorial jurisdiction”).
1 do not propose that the “contemporary notions of due process” to be applied are no more than “each Justice’s subjective assessment of what is fair and just.” Ante, at 623. Rather, the inquiry is guided by our decisions beginning with International Shoe Co. v. Washington,
As Justice Scalia’s opinion acknowledges, American courts in the 19th century erected the theory of transient jurisdiction largely upon Justice Story’s historical interpretation of Roman and continental sources. Justice Scalia’s opinion concedes that the rule’s tradition “was not as clear as Story thought,” ante, at 611; in fact, it now appears that as a historical matter Story was almost surely wrong. See Ehrenzweig, The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum Conveniens, 65 Yale L. J. 289, 293-303 (1956); Hazard, A General Theory of State-Court Jurisdiction, 1965 S. Ct. Rev. 241, 261 (“Story’s system reflected neither decided authority nor critical analysis”). Undeniably, Story’s views are in considerable tension with English common law — a “tradition” closer to our own and thus, I would imagine, one that in Justice Scalia’s eyes is more deserving of our study than civil law practice. See R. Boote, An Historical Treatise of an Action or Suit at Law 97 (3d ed. 1805); G. Cheshire, Private International Law 601 (4th ed. 1952); J. West-
It seems that Justice Story’s interpretation of historical practice amounts to little more than what Justice Story himself perceived to be “fair and just.” See ante, at 611 (quoting Justice Story’s statement that “ ‘[w]here a party is within a territory, he may justly be subjected to its process’ ”) (emphasis added and citation omitted). I see no reason to bind ourselves forever to that perception.
In Molony v. Dows,
It is possible to distinguish these cases narrowly on their facts, as Justice Scalia demonstrates. See ante, at 614-615, n. 3. Thus, Molony could be characterized as a case about the reluctance of one State to punish assaults occurring in another, Gardner as a forum non conveniens case, and Coleman’s Appeal as a case in which there was no in-state service of process. But such an approach would mistake the trees for the forest. The truth is that the transient rule as we now conceive it had no clear counterpart at common law. Just as today there is an interaction among rules governing jurisdiction, forum non conveniens, and choice of law, see, e. g., Ferens v. John Deere Co.,
“A theory of territorial jurisdiction would in any event have been premature in England before, say, 1688, or perhaps even 1832. Problems of jurisdiction were the essence of medieval English law and remained significant until the period of Victorian reform. But until after 1800 it would have been impossible, even if it had been thought appropriate, to*636 disentangle the question of territorial limitations on jurisdiction from those arising out of charter, prerogative, personal privilege, corporate liberty, ancient custom, and the fortuities of rules of pleading, venue, and process. The intricacies of English jurisdictional law of that time resist generalization on any theory except a franchisal one; they seem certainly not reducible to territorial dimension.
“The English precedents on jurisdiction were therefore of little relevance to American problems of the nineteenth century.” Hazard, A General Theory of State-Court Jurisdiction, 1965 S. Ct. Rev. 241, 252-253 (footnote omitted).
See also Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 617 (1988). The salient point is that many American courts followed English precedents and restricted the place where certain actions could be brought, regardless of the defendant’s presence or whether he was served there.
" One distinguished legal historian has observed that “notwithstanding dogmatic generalizations later sanctioned by the Restatement [of Conflict of Laws], appellate courts hardly ever in fact held transient service sufficient as such” and that “although the transient rule has often been mouthed by the courts, it has but rarely been applied.” Ehrenzweig, 65 Yale L. J., at 292, 295 (footnote omitted). Many of the cases cited in Justice Scalia’s opinion, see ante, at 612-613, involve either announcement of the rule in dictum or situations where factors other than in-state service supported the exercise of jurisdiction. See, e. g., Alley v. Caspari,
As the Restatement suggests, there may be cases in which a defendant’s involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him. The facts of the instant ease do not require us to determine the outer limits of the transient jurisdiction rule.
That these privileges may independently be required by the Constitution does not mean that they must be ignored for purposes of determining the fairness of the transient jurisdiction rule. For example, in the context of specific jurisdiction, we consider whether a defendant “has availed himself of the privilege of conducting business” in the forum State, Burger King Corp. v. Rudzewicz,
For example, in the federal system, a transient defendant can avoid protracted litigation of a spurious suit through a motion to dismiss for failure to state a claim or through a motion for summary judgment. Fed. Rules Civ. Proe. 12(b)(6) and 56. He can use relatively inexpensive methods of discovery, such as oral deposition by telephone (Rule 30(b)(7)), deposition upon written questions (Rule 31), interrogatories (Rule 33), and requests for admission (Rule 36), while enjoying protection from harassment (Rule 26(c)), and possibly obtaining costs and attorney’s fees for some of the work involved (Rules 37(a)(4), (b)-(d)). Moreover, a change of venue may be possible. 28 U. S. C. § 1404. In state court, many of the same procedural protections are available, as is the doctrine of forum non conveniens, under which the suit may be dismissed. See generally Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L. J. 1, 23-25 (1982).
Justice Scalia’s opinion maintains that, viewing transient jurisdiction as a contractual bargain, the rule is “unconscionabl[e],” ante, at 623, according to contemporary conceptions of fairness. But the opinion simultaneously insists that because of its historical “pedigree,” the rule is “the very baseline of reasonableness.” Ante, at 627. Thus is revealed Justice Scalia’s belief that tradition alone is completely dispositive and that no showing of unfairness can ever serve to invalidate a traditional jurisdictional practice. I disagree both with this belief and with Justice Scalia’s assessment of the fairness of the transient jurisdiction bargain.
I note, moreover, that the dual conclusions of Justice Scalia’s opinion create a singularly unattractive result. Justice Scalia suggests that when and if a jurisdictional rule becomes substantively unfair or even “unconscionable,” this Court is powerless to alter it. Instead, he is willing to rely on individual States to limit or abandon bases of jurisdiction that have become obsolete. See ante, at 627, and n. 5. This reliance is misplaced, for States have little incentive to limit rules such as transient jurisdiction that make it easier for their own citizens to sue out-of-state defendants. That States are more likely to expand their jurisdiction is illustrated by the
Concurrence Opinion
concurring in the judgment.
As I explained in my separate writing, I did not join the Court’s opinion in Shaffer v. Heitner,
Perhaps the adage about hard eases making bad law should be revised to cover easy cases.
Concurrence Opinion
concurring in part and concurring in the judgment.
I join Parts I, II-A, II-B, and II-C of Justice Scalia’s opinion and concur in the judgment of affirmance. The rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum State, without more, has been and is so widely accepted throughout this country that I could not possibly strike it down, either on its face or as applied in this case, on the ground that it denies due process of law guaranteed by the Fourteenth Amendment. Although the Court has the authority under the Amendment to examine even traditionally accepted procedures and declare them invalid, e. g., Shaffer v. Heitner,