International Shoe and the Legacy of Legal Realism

The modern law of personal jurisdiction owes its existence, and most of its structure and detail, to Chief Justice Stone's magisterial opinion in International Shoe v. Washington. It does not, however, owe its legal rules to this opinion, because Chief Justice Stone set out systematically to discredit most of the rules that had previously restricted the exercise of personal jurisdiction. In this effort, he succeeded beyond his wildest dreams - or, perhaps more accurately, his worst nightmares. The law of personal jurisdiction, and of such related fields as venue and choice of law, has been swept clear of nearly all rules, at least those that can be applied in a more or less determinate fashion, yielding all-or-nothing results. Rules in this sense have been in a steady retreat since the decision in International Shoe, and not just with respect to the constitutional issues addressed in that case. State statutes on the exercise of personal jurisdiction have generally been interpreted to reach to the constitutional limits, or at least to approach them. Venue rules often are so generous in identifying a proper forum that they provide only a preliminary to the case-by-case application of transfer statutes and the judge-made doctrine of forum non conveniens. And choice of law, at least at the constitutional level and in states that have abandoned the first Restatement of Conflict of Laws, has abandoned all but the most lenient restrictions on a state's ability to choose its own law to govern a case. Not all of these developments followed International Shoe. Some preceded it, such as the constitutional decisions on conflict of laws. But none are so well known and or so clearly changed our understanding of the limits on state power over civil litigation. One reason for the profound influence of International Shoes results from its origins in Legal Realism, which are documented in this article through the strong professional ties and continuing correspondence between Chief Justice Stone and Walter Wheeler Cook, the leading exponent of Legal Realism as applied to issues of jurisdiction and choice of law. Moreover, the opinion itself soon became the foundation for a jurisdictional theory hostile to legal rules. It made the criticism of legal rules far easier than the task of formulating and defending them, resulting in a systematic bias of modern jurisdictional analysis towards open-ended standards applied on the facts of each case. This article analyzes these developments and suggests how they might be overcome in formulating rules of personal jurisdiction, particularly on the basis of proposed international conventions and comparative analysis of the law of other countries.