This Article posits that two significant problems in the Supreme Court’s personal jurisdiction case law have led to incoherent and irreconcilable results in cases involving individual and corporate defendants. First, the Court has imposed substantive due process limitations on a state’s assertion of personal jurisdiction without ever explaining why such limitations are constitutionally required. Second, in the absence of clearly enunciated principles of substantive due process, the Supreme Court has relied on poorly defined categories of the types of contacts that would satisfy the substantive due process requirement. In Part I, the Article discusses the history of the U.S. Supreme Court’s substantive due process limitations on personal jurisdiction and, in particular, the standards for corporate-activities-based jurisdiction before the Court’s recent cases on that issue. Part II discusses the Court’s failure to provide a convincing theoretical justification for imposing substantive due process limitations on personal jurisdiction. It also discusses the consequences of that failure in three doctrinal areas of personal jurisdiction law, the traditional basis of service on an individual in the forum state, specific jurisdiction and corporate-activities-based jurisdiction. Part III then analyzes in detail the four recent Supreme Court cases on personal jurisdiction, and discusses the mistaken assumptions underlying those decisions. Part IV explains how the Court’s personal jurisdiction rules, as a whole, suffer from theoretical bareness, the ambiguity of the substantive due process categories of jurisdiction, and the rigidity of the Court’s substantive due process analysis. Finally, in Part V, the Article offers some ideas for how the Court could begin to remedy the many problems with personal jurisdiction law.
Washington and Lee Law Review - Constitutional Law
Article
by William W. Berry
In light of the dehumanizing effects of a felony conviction, the Eighth Amendment sentencing principle requiring individualized sentencing determination in capital sentences and juvenile life-without-parole sentences should be extended to all felony cases. In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence. In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama. Specifically, the Court held that juvenile offenders also were unique—in their capacity for rehabilitation and their diminished culpability—such that they too deserved individualized sentencing determinations. The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases. Felony convictions, however, are serious too. The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma. As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases. Doing so would require the Court to overrule its prior decisions, including Harmelin v.Michigan, but the Court’s opinion in Miller hints at a willingness to do just that. While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny. The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming. Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations; (2) it would eliminate draconian mandatory sentencing practices; and (3) it would shift the sentencing determination away from prosecutors back to judges. Part I of the Article describes the evolution of the individualized sentencing doctrine. Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing. In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable. Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine for defendants, legislators, and judges alike.
Response
by Samuel W. Calhoun
The Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended. This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly.
Response
by Caroline Mala Corbin
This Response to Mary Nobles Hancock’s Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.
Note
by Mary Nobles Hancock
This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme Court has placed significant emphasis on the history of legislative prayer in evaluating modern prayer practices, as seen in its two cases Marsh v. Chambers and Town of Greece v. Galloway. Part III examines the first two circuit court decisions to consider challenges to local legislative prayer in the wake of Town of Greece. Though factually identical, the Fourth Circuit in Lund and the Sixth Circuit in Bormuth arrived at opposite holdings concerning the constitutionality of the contested prayer practices. Part IV assesses each of the Lund four factors, comparing the Fourth Circuit’s reasoning in favor of these factors with the Sixth Circuit’s explanation for why they are an inaccurate measure under the Supreme Court’s guidance. In considering both the constitutionality and applicability of these four factors in legislative prayer challenges, this Note ultimately concludes that until the Supreme Court articulates a clearer test, these factors provide a valuable tool for lower courts.
Colloquium
by Matthew Engle
Matthew Engle, The Prior Convictions Exception—A Comment, 72 Wash. & Lee L. Rev. 473 (2015).
Colloquium
by Kevin Flynn
Kevin Flynn, Comment on The Prior Convictions Exception: Examining the Continuing Viability of Almendarez-Torres Under Alleyne, 72 Wash. & Lee L. Rev. 467 (2015).
Colloquium
by Meg E. Sawyer
By analyzing Almendarez-Torres and its questionable viability under the Court’s recent holding in Alleyne, this Note will illustrate that the Supreme Court should not overturn the prior convictions exception but rather expressly sustain the rule as good law.
Article
by Russell L. Christopher
Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty years of death row incarceration is unconstitutional. Nearly every lower court disagrees, reasoning that prisoners have the choice of pursuing appellate and collateral review (with the delay that entails) or crafting the perfect remedy to any delay by submitting, as Justice Thomas has invited complaining prisoners to do, to execution. By choosing the former, any resulting delay is self-inflicted; delayed executions are prisoners’ own fault. Despite this argument’s commonsense appeal, left unexplained is how prisoner fault inoculates state-imposed punishment from Eighth Amendment violation. Lacking a rationale for the prisoner fault argument, this Article proposes the two most obvious candidates: (i) analogizing to fault attribution for delays in the Sixth Amendment speedy trial right context; and (ii) choosing post-conviction review rather than submitting to execution, prisoners waive Eighth Amendment challenge of the resulting delay. But neither is persuasive; moreover, each proposed rationale presupposes the existence of the very right that Justice Thomas and nearly every court vigorously deny: an Eighth Amendment right against excessively delayed execution. The absence of a persuasive rationale exposes prisoner fault as irrelevant and removes the primary obstacle to courts recognizing that execution following decades of death row incarceration constitutes cruel and unusual punishment.
Development
by Ronald Turner
In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an individual’s freedom to marry the person of his or her choice, and (2) that interracial marriage bans are conceptually distinguishable from laws forbidding same-sex marriages and therefore do not violate the Constitution. The Essay concludes that Loving is a useful and authoritative analogy supporting the claims of plaintiffs who contend, among other things, that states may not constitutionally deny same-sex couples the right to marry based solely on the traditional view that marriage is, and should only be, the legal union of one man and one woman.
