III. The Territorial Jurisdiction of State Courts
A. Some History and Bask Concepts
Unlike American choice of law which owes its origins to continental sources,' the American law of jurisdiction owes its origin to English common law sources. Unlike continental law, the English common law based the assertion of jurisdiction, not on the defendant's forum contacts as such, but rather on a formal, if not ceremonial, act that symbolized the sovereign's power over the defendant at the time of the act — the service of summons on the defendant within the realm. This transient or 'tag jurisdiction' survives today in much of the common law world, although its pmpriety and constitutionality in the United States is now questionable.
When the US Supreme Court rendered its first major formative decision on jurisdiction, Pennoyer v. Neff,' territoriality was the favourite principle in explaining the spatial operation of laws. It is therefore not surprising that, from its inception. American jurisdictional law was territoriality oriented. Although subsequent decisions have shifted the focus from territorial power to personal liberty and fairness. the territorial infrastructure remains visible, if not largely intact.
See infra 107-108.
95 US 714 (1878).
Under Pennoyer and its progeny, a state could only assert jurisdiction over persons who were domiciled, or were served with summons, in the forum state (in person.; jurisdiction) or over property situated there (in rent jurisdiction). In personant jurisdiction empowered a court to adjudicate any personal claims against the defendant (even claims unrelated to his domicile or presence in the forum state) and to render a judgment that could be satisfied form any of the defendant's nonexempt assets, wherever situated. /n rent jurisdiction empowered a court to adjudicate claims in the specific property (the res) and to render a judgment that could be satisfied only out of that property. A hybrid of this jurisdictional basis known as quasi in rent jurisdiction allowed a court to adjudicate personal claims against a non-resident defendant who owned tangible or intangible property situated in the forum state, even if the claims were unrelated to the property's presence in the forum, and to render a judgment that could be satisfied out of that property.
In many cases, the assertion of quasi in rent jurisdiction could be overbroad. especially when the attached property was a debt owed to the defendant by a third party.' The same was true of tag jurisdiction in cases in which the defendant's presence in the forum state was transient and unrelated to the cause of action. Although often overbroad, the Pennoyer regime was also too narrow in some respects. For example. it did not allow for the assertion of jurisdiction over foreign corporations, which lack physical existence, or over certain foreign defendants like motorists who committed an offence within the forum state but were not served with process while there. To fill these gaps, American courts developed several legal fictions, such as corporate 'presence' or 'implied consent'. A foreign corporation that 'transacted' business in the forum state was deemed to have consented to jurisdiction regarding claims arising from that business. Likewise, a foreign motorist who drove
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