Personal Jurisdiction and Aliens
William S. Dodge* & Scott Dodson**
The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: How should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol–Myers Squibb Co. v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of personal jurisdiction over aliens. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This national-contacts test applies to personal jurisdiction over an alien defendant whether the cause of action arises under federal or state law and whether the case is heard in federal or state court. We show that the test is both consistent with the Constitution and consonant with the practical realities of modern transnational litigation. We also explore the moderating influence of other doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of our national-contacts test. In the end, we hope to articulate a more sensible and coherent doctrine of personal jurisdiction over alien defendants that will resonate with the Supreme Court.
* Martin Luther King, Jr. Professor of Law, UC Davis School of Law.
** James Edgar Hervey Chair in Litigation and Associate Dean for Research, UC Hastings College of the Law. We are grateful to Gary Born, Andrew Bradt, Trey Childress, Kevin Clermont, Rick Marcus, John Parry, Steve Sachs, Linda Silberman, Aaron Simowitz, Adam Steinman, Amanda Tyler, Chris Whytock, Nathan Yaffe, and others who commented on early drafts.