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Generally.—Jurisdiction may be defined as the power to create legal interests. In the famous case of Pennoyer v. Neff,77 the Court enunciated two principles of jurisdiction respecting the States in a federal system. First, “every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” and, second, “no State can exercise direct jurisdiction and authority over persons or property without its territory.”78 Although these two principles were drawn from the writings of Joseph Story refining the theories of continental jurists,79 the constitutional basis for them was deemed to be in the due process clause of the Fourteenth Amendment.80 From these beginnings, the Court developed a complex set of rules defining when jurisdiction—physical power—could be exerted over persons through in personam actions and over things, generally, through actions in rem.81

In proceedings in personam to determine liability of a defendant, no property having been subjected by such litigation to the control of the court, jurisdiction over the defendant’s person is a condition prerequisite to the rendering of any effective decree.82 That condition is fulfilled, that is, a State is deemed capable of exerting jurisdiction over an individual if he is physically present within the territory of the State, if he is domiciled in the State although temporarily absent therefrom, or if he has consented to the[p.1706]exercise of jurisdiction over him. In actions in rem, however, a State could validly proceed to settle controversies with regard to rights or claims against property within its borders, notwithstanding that control of the defendant was never obtained. Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a State could proceed through its courts to judgment respecting the ownership of such property, even though it lacked a constitutional competence to reach claimants of title who resided beyond its borders.83 By the same token, probate84 and garnishment of foreign attachment85 proceedings, being in the nature of in rem actions for the disposition of property, or quasi in rem, might be prosecuted to conclusion without requiring the presence of all parties in interest.86

Over a long period of time, the mobility of American society and the increasing complexity of commerce led to attenuation of the second principle of Pennoyer,87 and beginning with International Shoe Co. v. Washington,88 the Court established the modern standard of obtaining in personam jurisdiction based upon the nature and the quality of contacts that individuals and corporations have with a State; this “minimum contacts” test permits the courts of a State through process to obtain power over out–of–state defendants. In recent cases, the “minimum contacts” test has been held applicable to all assertions of jurisdiction, so that in rem and quasi–in–rem proceedings must now be evaluated in the context of the defendant’s relationship to the State in which the suit is being brought.89


Basis for the territorial concept of jurisdiction promulgated in Pennoyer and modified over the years is a two–fold construction of due process: a concern for “fair play and substantial justice” involved in requiring defendants to litigate cases against them far from their “home” or place of business90 and, more important, a concern for the preservation of federalism.91 The Framers, the Court has asserted, while intending to tie the States together into a Nation, “also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all its sister States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment.”92 Thus, the federalism principle is preeminent. “[T]he Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ . . . Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.”93


77 95 U.S. 714 (1878) .
78 Id. at 722.
79 Hazard, A General Theory of State–Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 252–62.
80 Pennoyer v. Neff, 95 U.S. 714, 733–35 (1878) . The due process clause and the remainder of the Fourteenth Amendment had not been ratified at the time of the entry of the state–court judgment giving rise to the case. This inconvenient fact does not detract from the subsequent settled utilization of this constitutional foundation. Pennoyer denied full faith and credit to the judgment because the state lacked jurisdiction.
81 Pennoyer v. Neff, 95 U.S. 714, 733 (1878) ; Scott v. McNeal, 154 U.S. 34, 64 (1894) .
82 National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904) ; Iron Cliffs Co. v. Negaunee Iron Co., 197 U.S. 463, 471 (1905) .
83 Arndt v. Griggs, 134 U.S. 316, 321 (1890) ; Grannis v. Ordean, 234 U.S. 385 (1914) ; Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917) .
84 Goodrich v. Ferris, 214 U.S. 71, 80 (1909) .
85 Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917) ; Harris v. Balk, 198 U.S. 215 (1905) .
86 The jurisdictional requirements for rendering a valid divorce decree are considered under the full faith and credit clause. Supra, pp. 840–50.
87 The first principle, that a State may assert jurisdiction over anyone or anything physically within its borders, no matter how briefly there—the so–called “transient” rule of jurisdiction— McDonald v. Mabee, 243 U.S. 90, 91 (1917) , remains valid, although in Shaffer v. Heitner, 433 U.S. 186, 204 (1977) , the Court’s dicta appeared to assume it is not.
88 326 U.S. 310 (1945) . As the Court explained in McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957) , “[w]ith this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” See World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980) .
89 Shaffer v. Heitner, 433 U.S. 186 (1977) ; World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ; Rush v. Savchuk, 444 U.S. 320 (1980) ; Kulko v. Superior Court, 436 U.S. 84 (1978) .
90 International Shoe Co. v. Washington, 326 U.S. 310, 316, 317 (1945) ; Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm., 339 U.S. 643, 649 (1950) ; Shaffer v. Heitner, 433 U.S. 186, 204 (1977) .
91 International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945) ; Hanson v. Denckla, 357 U.S. 235, 251 (1958) .
92 World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980) .
93 Id. at 294 (internal quotation from International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945) ).
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