By Jesse M. Cross. Full Text.
It is widely acknowledged that, from roughly 1940 to 1970, a revolution occurred in Conflicts of Law. Referred to as the “Conflicts revolution,” this movement remade nearly every legal test in the field. According to conventional wisdom, this revolution rejected the same idea in each instance: namely, that Conflicts tests should be grounded in a theory of sovereignty. Instead, the argument goes, it pivoted the field to pragmatic tests that focus on practicality, fairness, and convenience.
As this Article explains, this conventional wisdom is incorrect. It misunderstands the intellectual revolution that remade the field, and it has generated needless confusion about our modern-day tests. Properly understood, the Conflicts revolution was a continuation of the Court’s tradition of using sovereignty-based tests, not a repudiation of that tradition. Its core innovation, rather, was to substitute one theory of sovereignty for another.
This Article begins the work of developing this new understanding of Conflicts of Law. To this end, it specifically examines how the Conflicts revolution remade perhaps the most important test in the field: the Fourteenth Amendment test for state court personal jurisdiction. It shows how the famous 1945 case of International Shoe, through its creation of a “minimum contacts” test, installed a new theory of sovereignty at the center of personal jurisdiction analysis. It then shows that, once we understand the minimum contacts test as a pivot to this new theory of sovereignty, a number of the most vexing problems in personal jurisdiction (and beyond) are diminished or resolved.