74 1 The Long Story of Notice and Personal Jurisdiction

THE LOST STORY OF NOTICE AND
PERSONAL JURISDICTION
ROBIN J. EFFRON*
Notice and personal jurisdiction have long been closely-tied procedural

law concepts because of their common origins in the mechanics of service of
process and their shared due process ancestor in Pennoyer v. Neff. Notice
was once a reliable feature of personal jurisdiction jurisprudence, but slowly
faded from prominence in personal jurisdiction analysis after the Interna-
tional Shoe and Mullane decisions, and then fell away almost completely
in the post-Asahi era.
Once the Supreme Court tied personal jurisdiction to due process, notice
was critical in shaping the direction of jurisdictional doctrine. Its role ex-
tended beyond that of a mere instrument of doctrinal development. The use
of notice was integral to the mode of legal reasoning that the Court employed
in its personal jurisdiction journey. Notice, with its tangibility and depen-
dence on mechanical service of process, allowed the Court to navigate the
strict formalism of the pre-International Shoe era and the Court’s many
returns to formalism in the era of minimum contacts. Moreover, when the
Court wanted to engage in a more functional mode of analysis, notice al-
lowed the Court to continually tie personal jurisdiction to due process be-
cause of the intuitive fairness appeal of the ideas of notice and opportunity
to be heard. When the Court made several efforts to limit the scope of per-
sonal jurisdiction between International Shoe and the early 1990s, the
Court seized upon a different but related concept of notice—notice of juris-
diction—as a due process justification for restricting personal jurisdiction.
This Article advocates for a “notice-inclusive approach” to personal ju-
risdiction. It focuses on reestablishing comfort with the inclusion of easily-
satisfied due process considerations while also stressing that constitutional
notice doctrine itself might be strengthened in small but strategic ways, thus
adding some additional due process protections both to notice and to per-
sonal jurisdiction.
* Professor of Law, Brooklyn Law School. Thanks to Alexandra Lahav,

Jonathan Remy Nash, Zach Clopton, Pam Bookman, Brooke Coleman, Linda
Silberman, the Hon. Andrew Effron, David Noll, Allan Stein, Rick Swedloff, John
Leubsdorf and participants at the Third Annual Constitutional Law Scholars’
Conference, the Fourth Annual Civil Procedure Workshop, and the Rutgers-
Newark Faculty Workshop. Nathalie Gorman, David Moosmann, and Sander Saba
provided exceptional editorial and research support throughout this process.
Thanks also to Dean Maryellen Fullerton for support from the Dean’s Summer
Research Fund.
23
24 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 74:23
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
I. Notice and Personal Jurisdiction from Pennoyer
Through International Shoe and Mullane . . . . . . . . . . . . . . 30
A. The Relationship of Personal Jurisdiction and
Notice Prior to Pennoyer. . . . . . . . . . . . . . . . . . . . . . . . . . 30
B. Personal Jurisdiction and Notice in Pennoyer . . . . . 33
C. Personal Jurisdiction and Notice from Pennoyer
Through International Shoe and Mullane . . . . . . . . . . 35
1. The In Rem Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2. The Marriage Exception Cases . . . . . . . . . . . . . . . 39
3. Corporations and Consent Cases . . . . . . . . . . . . . 41
4. The End of the Journey to International Shoe . 43
II. Personal Jurisdiction in International Shoe and
Mullane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
A. International Shoe and the Alternative History of a
Minimum Contacts Test for Notice . . . . . . . . . . . . . . 48
B. Mullane and the New Trajectory of a Distinct
Standard for Due Process in Notice . . . . . . . . . . . . . . 51
III. The Shifting and Fading Role of Notice in Personal
Jurisdiction from International Shoe and Mullane
through Asahi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
A. Early Jurisdictional Expansion in Perkins and
McGee: Continued Use of Notice as a Fairness and
Due Process Crutch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
B. From Notice of Suit to a Tool of Due Process
Expansion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
C. A New Use for Notice in a New World of In Rem
Jurisdictional Problems . . . . . . . . . . . . . . . . . . . . . . . . . . 71
D. Jurisdiction Over Plaintiffs and the Return to the
Touchstone of Notice of Suit . . . . . . . . . . . . . . . . . . . . 74
IV. Whither Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
A. Notice Vanishes from General Jurisdiction . . . . . . . 80
B. And Then Notice Disappears from Specific
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
V. Notice Resurrected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
A. Establishing Comfort with Easily Satisfied Due
Process Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
B. Pressing for Deeper Constitutional Scrutiny of
Notice and Service of Process Practices . . . . . . . . . . 92
C. Sharpening Specific Jurisdiction with an
“Additional Procedural Protections” Approach . . . 95
1. Specific Jurisdiction in Mass Actions and Class
Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
2018] NOTICE AND PERSONAL JURISDICTION 25
2. Using Registration Statutes to Broaden the

Availability of Specific Doctrine . . . . . . . . . . . . . . 98
D. Restoring Notice to a Broader General
Jurisdiction Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
INTRODUCTION
This Article examines the curious doctrinal journey of two pro-

cedural lynchpins of due process: personal jurisdiction and notice.
For the past several decades, they have been treated as more or less
separate doctrines. But that was not always the case, and there are
still shadowy remnants of each doctrine that remain in the case law
and analysis of the other. This Article attempts to answer a few im-
portant but surprisingly overlooked questions, namely: when and
why did notice break off from personal jurisdiction? And why, de-
spite decades of nearly constant hand-wringing about confusion
and chaos in personal jurisdiction, did so few commentators or ju-
rists seem to take note of this development?
The link between personal jurisdiction and notice is mechani-
cal and conceptual. Both doctrines have common roots in the
mechanics of service of process. The reason for this is fairly evident
in the case of notice; service of process is the means by which a
party is apprised of the pendency of an action. Constitutionally suf-
ficient notice depends on the proper execution of service of pro-
cess that is “reasonably calculated under the circumstances”1 to
apprise a party of an action. The connection between the mechan-
ics of service of process and personal jurisdiction is less obvious. In
the American system, service of process is the means by which per-
sonal jurisdiction is acquired or “perfected.”2 In other legal re-
gimes, personal jurisdiction is not directly connected to the
question of how—and whether and when—a party should be served
with process3 and thus notified of the pendency of an action. But
1. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
2. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)
(quoting Miss. Publ’g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)) (“[S]ervice
of summons is the procedure by which a court having venue and jurisdiction of the
subject matter of the suit asserts jurisdiction over the party being served.”).
3. See, e.g., Patrick J. Borchers, Comparing Personal Jurisdiction in the United States
and the European Community: Lessons for American Reform, 40 AM. J. COMP. L. 121, 135
(1992) (criticizing the United States’ use of service of process as a basis for per-
sonal jurisdiction and noting that the Brussels Convention outlaws “such exorbi-
tant devices”).
in the United States, the procedures for service of process under-

gird both notice and personal jurisdiction.
A “problem” with service of process could actually be any one
of three distinct problems: a problem with the mechanics of service,
a problem with notice, or a problem with personal jurisdiction.
Both federal and state courts have distinct motions and procedures
for redressing problems with each.4 In practice, courts do not usu-
ally dwell on missteps in the formal delineation of a motion regard-
ing a problem related to service of process.5 This means that
arguments and concepts about all service of process problems—
mechanics, notice, and personal jurisdiction—bleed into each
other. Looking at the trajectory of personal jurisdiction doctrine
and notice doctrine over the past 150 years, the concepts and argu-
ments associated with each can get tangled together. Sometimes
the doctrines seem to merge or look as if one will subsume the
other. At other times, the doctrines and arguments drift apart.
Requirements for proper notice and lawful personal jurisdic-
tion predate the passage of the Fourteenth Amendment. In 1877,
the Supreme Court used the due process clause to elevate both doc-
trines to constitutional status.6 Since then, the Court has struggled
to make sense of notice and personal jurisdiction, both in providing
an internally coherent account of each doctrine, and also in ex-
plaining the due process basis for each as a constitutional right.7
Personal jurisdiction has unquestionably been the more difficult
and problematic due process doctrine, and as such, it is around
personal jurisdiction that this Article is framed.
Personal jurisdiction encompasses doctrines and concepts that
are not natural or obvious fits with due process.8 To the extent that
4. See Fed. R. Civ. P. 12; N.Y. C.P.L.R. § 3211 (Consol. 2012); CAL. CIV. PROC.
CODE § 418.10 (Deering 2002); Del. Super. Ct. Civ. R. 4(j).
5. See 62B AM. JUR. 2D Process § 99 (2018). However, unless the effect of a
motion practice mistake results in the waiver of the ability to raise a defense like
personal jurisdiction, the choice of device rarely has much practical significance.
6. See Pennoyer v. Neff, 95 U.S. 714, 733 (1877).
7. See RHONDA WASSERMAN, PROCEDURAL DUE PROCESS: A REFERENCE GUIDE TO
THE UNITED STATES CONSTITUTION 63–161 (2004) (history and status of due pro-
cess doctrine for notice and opportunity to be heard); id. at 207–61 (history and
status of due process doctrine for personal jurisdiction).
8. See generally Jay Conison, What Does Due Process Have to Do with Jurisdiction?,
46 RUTGERS L. REv. 1071 (1994). See also Patrick J. Borchers, The Death of the Consti-
tutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24
U.C. HASTINGS L. REV. 19, 20 (1990) (“[T]he Court should . . . abandon the notion
that state court personal jurisdiction is a matter of constitutional law.”); Stephen E.
Sachs, Pennoyer Was Right, 95 TEX. L. REV. 1249, 1252 (2017) (arguing against
“the main holding of Pennoyer: that the Fourteenth Amendment’s Due Process
personal jurisdiction has at least some of its pre-Pennoyer origins in

the international and general law doctrines of territoriality, sover-
eignty, comity, and federalism, it has been difficult to square with
an individual liberty-based understanding of due process—even ac-
counting for the fairness rationales that emerged from the mini-
mum contacts approach that the Court eventually established in
International Shoe.9 Notice doctrine, on the other hand, has always
fit more comfortably with individual liberty and due process be-
cause of the emphasis on ensuring that a party is aware of a pend-
ing action so that she may participate and defend or vindicate her
rights before a court issues a binding judgment.10
Notice and personal jurisdiction share common origins in the
mechanics of service of process and the due process ancestor in
Pennoyer. Both are due process rights that litigants can waive.11 But
it is not enough to casually observe the parallel development of the
doctrines: notice and personal jurisdiction have a tangled history
that is more than just a historical quirk. Notice was once a reliable
Clause . . . imposes rules for personal jurisdiction.”); Allan R. Stein, Styles of Argu-
ment and Interstate Federalism in the Law of Personal Jurisdiction, 65 TEX. L. REV. 689,
694 (1987) (“Pennoyer’s linkage of due process and jurisdictional theories outside
the due process clause provoked reams of scholarly criticism, focusing primarily on
the absence of any federalism component of the fourteenth amendment.”). But see
Kenneth J. Vandevelde, Ideology, Due Process and Civil Procedure, 67 ST. JOHN’S L.
REV. 265, 274–77 (1993) (due process formulation of personal jurisdiction in Pen-
noyer was consistent with the Supreme Court’s broader conservative due process
ideology of the era).
9. Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). But see Charles W.
“Rocky” Rhodes, Liberty, Substantive Due Process, and Personal Jurisdiction, 82 TUL. L.
REV. 567, 567 (2007) (“This Article defends–against numerous critics–the view that
constitutional limits on personal jurisdiction arise from basic substantive due pro-
cess principles.”).
10. See WASSERMAN, supra note 7, at 207 (describing notice as one of the “prin-
cipal procedural protections afforded by due process” and personal jurisdiction as
an “important corollary.”). See also 4A CHARLES ALAN WRIGHT ET. AL., FEDERAL
PRACTICE AND PROCEDURE, § 1074 (4th ed. 2018).
11. Personal jurisdiction can be waived by consenting to the forum, either
through a forum selection clause or by failing to raise a timely jurisdictional objec-
tion. See 4A CHARLES ALAN WRIGHT ET. AL., FEDERAL PRACTICE AND PROCEDURE
§ 1067.3 (4th ed. 2018) (“[P]ersonal jurisdiction can be based on the defendant’s
consent to have the case adjudicated in the forum, or the defendant’s waiver of
the personal jurisdiction defense.”). Notice, in many circumstances, can also be
waived, such as through a “cognovit” note in which a party agrees in advance to
forego ordinary notice and service of process in a debt action. See D.H. Overmyer
Co. v. Frick Co., 405 U.S. 174, 176 (1972).
feature of personal jurisdiction jurisprudence,12 but slowly faded

from prominence after the International Shoe and Mullane decisions,
and then fell away almost completely in the post-Asahi era.
At a superficial level, the due process story of personal jurisdic-
tion and notice is a tale of historical accident and doctrinal path
dependence. Perhaps the decision to drop notice from personal ju-
risdiction was not a conscious choice, but rather, the side effect of
an emphasis on other jurisdictional values and the result of benign
neglect. A closer look, however, reveals a more nuanced story.
Once the Supreme Court tied personal jurisdiction to due process,
notice was critical in shaping the direction of jurisdictional doc-
trine. Its role extended beyond that of a mere instrument of doctri-
nal development. The use of notice was integral to the mode of
legal reasoning that the Court employed in its personal jurisdiction
journey. This was on account of two key attributes of notice. First,
notice, with its tangibility and dependence on mechanical service of
process, allowed the Court to navigate the strict formalism of the
pre-International Shoe era and the Court’s many returns to formalism
in the era of minimum contacts. Second, when the Court wanted to
engage in a more functional mode of analysis, notice allowed the
Court to continually tie personal jurisdiction to due process be-
cause of the intuitive fairness appeal of the ideas of notice and op-
portunity to be heard. Thus, the Court could lean on notice to
provide a veneer of fairness and process, even while supposedly
privileging arguments about sovereignty and territoriality. Finally,
when the Court made several efforts to limit the scope of personal
jurisdiction between International Shoe and the cases of the early
1990s, the Court seized upon a different but related concept of no-
tice, notice of jurisdiction, as a due process justification for restrict-
ing personal jurisdiction.
This Article proceeds in five parts. Part I recounts the relation-
ship of personal jurisdiction and notice from its roots in the pre-
Pennoyer and due process era through the Court’s slow evolution of
personal jurisdiction doctrine that laid the groundwork for the
modern minimum contacts test. Part II reconsiders the conven-
tional wisdom of International Shoe and Mullane, arguing that these
cases each analyze personal jurisdiction and notice in a way that
had lasting consequences for personal jurisdiction doctrine and
analysis. Part III traces the continued use of notice in personal juris-
diction analysis in the first five decades after International Shoe, dem-
12. See WRIGHT ET. AL., supra note 10, at n.2 (“As the discussion of Pennoyer v.
Neff . . . reveals, the Supreme Court has long regarded ‘notice’ and ‘power’ as
inseparable aspects of the due process restrictions on state court jurisdiction.”).
onstrating that notice was used as a tool to expand personal

jurisdiction by providing reassurances of fairness, and as a tool to
restrict jurisdiction by appealing to evolving notions of due process
and the role of notice therein. This was an era in which reliance on
notice to quietly bolster doctrinal changes allowed the Court to
plaster over an increasing incoherence in personal jurisdiction doc-
trine and reasoning.
Part IV examines the Court’s latest round of personal jurisdic-
tion cases in which notice has all but disappeared from the Court’s
menu of doctrines and values that support jurisdictional decisions.
This absence lays bare the consequences of the evolution in the
decades-long relationship between personal jurisdiction and notice.
Notice had long been a fundamental yet little recognized partner in
constitutional personal jurisdiction analysis. It helped paper over
some of the difficult doctrinal inconsistencies in personal jurisdic-
tion analysis, particularly concerning the nature of personal juris-
diction as a due process right. It propped up doctrinal innovation,
sometimes to expand jurisdiction and sometimes to restrict it.
When notice disappeared, the already apparent incoherence and
inconsistencies in personal jurisdiction doctrine only became more
obvious.
Finally, in Part V, I argue that restoring notice to personal juris-
diction might be a small yet helpful part of a strategy to impose
normative and doctrinal order on personal jurisdiction chaos. This
“notice-inclusive approach” has four distinct components. The first
component focuses on reestablishing comfort with the inclusion of
easily-satisfied due process considerations in personal jurisdiction
analysis and treating these considerations as meaningful or even
dispositive under appropriate circumstances. The second compo-
nent suggests, in turn, that constitutional notice doctrine itself
might be strengthened in small but strategic ways, thus adding
some additional due process protections both to notice and to per-
sonal jurisdiction. The third component is to reincorporate notice
as a factor in specific jurisdiction analysis, thus broadening the doc-
trine and sharpening its boundaries by refocusing analysis on the
relationship between personal jurisdiction and other procedural
protections with a due process component. The fourth component
is to return notice to personal jurisdiction which might pave the
way for a less restrictive, yet still appropriately constrained, ap-
proach to general jurisdiction.
I.
NOTICE AND PERSONAL JURISDICTION FROM
PENNOYER THROUGH INTERNATIONAL
SHOE AND MULLANE
A. The Relationship of Personal Jurisdiction and Notice
Prior to Pennoyer
The story of personal jurisdiction and notice begins long
before Pennoyer v. Neff 13 constitutionalized both doctrines. In the
pre-Pennoyer legal landscape, courts viewed personal jurisdiction
primarily—although not exclusively—as a limit on the authority of
a given tribunal, an authority that was first and foremost grounded
in notions of territoriality. Notice, on the other hand, was viewed
primarily as an issue of fairness and justice to a party, usually a de-
fendant, whose rights were to be adjudicated before a given tribu-
nal. Courts used an amalgam of “natural justice”14 principles, the
so-called “general law,” and the international law principle of com-
ity15 to develop limits on the exercise of personal jurisdiction.
Courts also employed the Full Faith and Credit Clause16 as a consti-
tutional basis for refusing to enforce judgments of other state
courts that purportedly lacked personal jurisdiction.17 As for notice,
much of the doctrinal pronouncements came in in rem actions, but
courts “rarely had occasion to discuss the form that notice had to
take in in personam actions . . . because [their] personal jurisdiction
jurisprudence . . . ensured, as a practical matter, that defendants in
such actions received notice through personal service of process.”18
There was always some shared space between personal jurisdic-
tion and notice, in particular, the appeals to natural justice and fair-
13. 95 U.S. 714 (1877).

14. See Conison, supra note 8, at 1097–1103 (natural justice basis for notice as
well as personal jurisdiction limitations both before and after Pennoyer).
15. See Conison, supra note 8, at 1104–11; Sachs, supra note 8, at 1270 (“Early
American courts applied what they saw as rules of general and international law to
determine whether foreign judgments deserved any respect.”); WASSERMAN, supra
note 7, at 208–09 (pre-Pennoyer limitations on personal jurisdiction were “derived
from international law.”).
16. U.S. CONST. art. IV, § 1 (“Full faith and Credit shall be given in each State
to the public Acts, Records and judicial Proceedings of every other State.”). See
Steven R. Greenberger, Justice Scalia’s Due Process Traditionalism Applied to Territorial
Jurisdiction: The Illusion of Adjudication Without Judgment, 33 B.C. L. REV. 981,
1015–16 (1992) (“The pre-Pennoyer case law that incorporated those principles
consequently arose entirely as a problem of the interstate recognition of judgments
under the Full Faith and Credit Clause and statute.”).
17. WASSERMAN, supra note 7, at 208–09.
18. Id. at 130.
ness. For example, in the leading pre-Pennoyer case of Lafayette Ins.

Co. v. French, the Supreme Court recognized “that principle of natu-
ral justice which requires a person to have notice of a suit before he
can be conclusively bound by its result; [and] those rules of public
law which protect persons and property within one State from the
exercise of jurisdiction over them by another.”19 Courts periodically
cited Vallee v. Dumergue, an 1849 English Exchequer case upholding
personal jurisdiction where it was supported by “natural justice.”20
State courts similarly included appeals to principles of fairness and
natural justice, and some of these decisions found their way into
Justice Field’s Pennoyer decision.21
The strongest link between personal jurisdiction and notice
was not conceptual, but mechanical. The procedures of service of
process were, and are, simultaneously the method for notifying a
party of the pendency of an action and the procedure by which
personal jurisdiction is “perfected.”22 This link between notice and
service of process was always apparent: courts and lawmakers
needed some way of dictating and then measuring how service of
process should be accomplished and whether such methods were
sufficient.
The link between personal jurisdiction and service of process is
more a quirk of historical path dependency than one of conceptual
19. Lafayette Ins. Co. v. French, 59 U.S. 404, 406 (1855). This case also
played a prominent role in the introduction of the theory that jurisdiction could
be acquired by “implied consent.” See Patrick J. Borchers, One Step Forward and Two
Back: Missed Opportunities in Refining the United States Minimum Contacts Test and the
European Union Brussels I Regulation, 31 ARIZ. J. INT’L & COMP. L. 1, 7 (2014) (in
Lafayette, “the Supreme Court invented the fiction that a corporation doing busi-
ness in the forum had implicitly consented to jurisdiction there.”); Charles W.
“Rocky” Rhodes, The Predictability Principle in Personal Jurisdiction Doctrine: A Case
Study in the “Generally” Too Broad but “Specifically” Too Narrow Approach to Minimum
Contacts, 57 BAYLOR L. REV. 135, 142 (2005) (citing Lafayette as a pre-Pennoyer his-
torical precedent for consent in personal jurisdiction).
20. Vallee v. Dumergue (1849) 154 Eng. Rep. 1221; 4 Exch. 290. Even after
Pennoyer, some courts continued to cite the early common law origins of notice and
personal jurisdiction doctrines. See Gilmore v. Sap, 100 Ill. 297, 302 (1881) (justify-
ing the validity of a substituted service statute by harkening back to the common
law in the time of Richard II).
21. See Pennoyer v. Neff, 95 U.S. 714, 731–32 (1877). See also Gillespie v. Com-
mercial Mut. Marine Ins. Co., 78 Mass. 201, 201 (1958) (upholding in-state service
of process on a non-resident defendant).
22. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)
(quoting Miss. Publ’g Corp. v. Murphree, 326 U.S. 438, 444–45 (1946))
(“ ‘[S]ervice of summons is the procedure by which a court having venue and juris-
diction of the subject matter of the suit asserts jurisdiction over the party being
served.’”).
necessity. At common law, as received from England, the sheriff

would physically arrest the defendant pursuant to the writ of capias
ad respondendum,23 meaning that “service of civil process did not dif-
fer materially from what we know today as criminal arrest. The sher-
iff physically restrained the person served, and then jailed him or
her while he or she awaited disposition of the action.”24 The act of
physically restraining and confining the defendant was intimately
connected to the idea that the state was exerting physical control
over a person within its territory.25 Thus the fact that the state did
control and confine a defendant within its jurisdiction became the
one of the foundations for the idea that the state could exert adjudi-
cational authority over persons and property within its bounda-
ries.26 The capias was eventually replaced in the mid-eighteenth
century by service of process so that by the time of the founding in
1787, “lawyers in England and America had been required to use
the summons as the tool for starting suit for more than sixty years;
arrest was no longer a tool for commencing suit in most civil ac-
tions.”27 Thus, personal jurisdiction and notice were already on
paths sometimes parallel, sometimes intertwined, long before the
full constitutionalization in Pennoyer.
23. Capias, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining capias ad
respondendum as “[a] writ commanding the sheriff to take the defendant into
custody to ensure that the defendant will appear in court.”).
24. John Martinez, Discarding Immunity from Service of Process Doctrine, 40 OHIO
N.U. L. REV. 87, 90 (2013). See also Donald E. Wilkes, Jr., Habeas Corpus Proceedings
in the High Court of Parliament in the Reign of James I, 1603–1625, 54 AM. J. LEGAL.
HIST. 200, 218 (2014) (“In seventeenth century England, unlike today, civil arrest
process was an integral part of civil procedure.”). For a detailed history of the
development and decline of the capias, see Nathan Levy, Jr., Mesne Process in Per-
sonal Actions at Common Law and the Power Doctrine, 78 YALE L. J. 52 (1978).
25. See RICHARD D. FREER, CIVIL PROCEDURE 45 (4th ed. 2017) (“[The capias]
was a stark reminder that the jurisdiction was being exercised in personam, because
it actually resulted in taking the defendant into the custody of the government.”).
26. See Levy, supra note 24, at 94 (“The common law courts neither exercised
nor believed they could exercise jurisdiction in personal actions without either
physical custody of the defendant or an appearance by him.”). But see Albert A.
Ehrenzweig, The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum
Conveniens, 65 YALE L.J. 289, 297 (1956) (“Even when [English courts] began to
base [their] personal jurisdiction upon the physical arrest of the defendant, actual
physical power over the defendant was not invariably required.”).
27. Bradford E. Biegon, Note, Presidential Immunity in Civil Actions: An Analysis
Based Upon Text, History, and Blackstone’s, 82 VA. L. REV. 677, 682 (1996).
B. Personal Jurisdiction and Notice in Pennoyer
Personal jurisdiction and notice were at the heart of Pennoyer,28

the seminal civil procedure due process case known to (and per-
haps dreaded by) all law students over the past century.29 Although
the Pennoyer story has been told and retold in many a scholarly com-
mentary, it’s worth rehearsing the facts again here to emphasize the
juxtaposition of personal jurisdiction and notice. Pennoyer con-
cerned a plaintiff, Mitchell, who wanted to sue Neff for unpaid legal
fees in Oregon state court. Neff, no longer a resident of Oregon,
was residing in California, although he still owned land in Oregon
(the land which was, in fact, the subject of the legal advice that
Mitchell had tendered). Mitchell served Neff under an Oregon
statute that permitted service on an out-of-state defendant via publi-
cation for six successive weeks in a newspaper.30 The Supreme
Court, in an opinion by Justice Field, held that service by publica-
tion on an out-of-state defendant was insufficient to establish in per-
sonam jurisdiction over the defendant because the defendant was
not notified of the lawsuit and thus unable to defend himself before
the entry of a default judgment.31
Although the case stands primarily for the proposition that
personal jurisdiction is a Fourteenth Amendment due process
right, it is also the genesis of locating the right of notice and oppor-
tunity to be heard in the due process clause of the Fourteenth
28. 95 U.S. 714, 733 (1877) (“Since the adoption of the Fourteenth Amend-
ment to the Federal Constitution, the validity of such judgments may be directly
questioned, and their enforcement in the State resisted, on the ground that pro-
ceedings in a court of justice to determine the personal rights and obligations of
parties over whom that court has no jurisdiction do not constitute due process of
law.”). See also Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950);
Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident
Alien Defendants, 41 WAKE FOREST L. REV. 1, 4 (2006) (“In at least one respect, the
doctrinal formulation is thus unmistakable: due process is the starting and ending
point to any personal jurisdiction analysis.”).
29. See Linda J. Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L.
REV. 33, 33–34 (1978) (recalling an encounter with a “derelict” in Washington
Square Park who proved himself an erstwhile law student by shouting, “Pennoyer!”
and recounting the facts and holding of the case).
30. Pennoyer v. Neff, 95 U.S. 714, 720, 736 (1877).
31. Id. at 727, 733–34. See also Charles W. “Rocky” Rhodes, Nineteenth Century
Personal Jurisdiction Doctrine in a Twenty-First Century World, 64 FLA. L. REV. 387, 434
n.283 (2012) (“The problem with Pennoyer from a modern perspective was not that
Neff should not have been subject to jurisdiction in Oregon . . . but that the notice
given was not reasonably calculated to inform him of the suit.”).
Amendment.32 After all, what had “gone wrong” in the original

Mitchell v. Neff action was a problem with service of process. The
Pennoyer decision affected both doctrines that service of process un-
derlies: personal jurisdiction and notice.
Courts passing on pre-Pennoyer cases had not taken care to
erect a strong or formal distinction between personal jurisdiction
and notice. While the doctrines were not identical or interchangea-
ble, there was a certain fluidity in how courts handled problematic
service of process issues that sometimes implicated jurisdictional
concerns, sometimes notice concerns, and sometimes both. Pen-
noyer itself has this character. Justice Field unquestionably placed
power, territoriality, and sovereignty at the center of personal juris-
diction.33 Fairness and natural justice, however, were not absent
from the opinion. A natural fit, or even a proxy for the question of
fairness, was to evaluate the actual or constructive notice that a
given defendant had of a pending action. For Justice Field, notice
implicated “that principle of natural justice which requires a person
to have notice of a suit before he can be conclusively bound by its
result.”34 Thus, the Pennoyer opinion cemented the Fourteenth
32. See Frank. R. Lacy, Service of Summons and the Resurgence of the Power Myth,
71 OR. L. REV. 319, 344 (1992) (calling personal jurisdiction “due process I” and
notice “due process II”); Sachs, supra note 8, at 1300 (“[I]n 1908, the Supreme
Court itself identified two requirements of procedural due process: that the court
‘shall have jurisdiction’ (for which it cited Pennoyer, among other cases), and that
the parties be given ‘notice and opportunity for hearing.’ ”).
33. Justice Field opens his opinion by citing D’Arcy v. Ketchum, 11 How. 165,
the canonical pre-Pennoyer case establishing the territorial limits on sovereign adju-
dication that the Court continued to cite well into the Twentieth Century in its
personal jurisdiction decisions. See, e.g., Shaffer v. Heitner, 433 U.S. 186, 198 n.15
(1977); Hanson v. Denckla, 357 U.S. 235, 255 (1958); Baker v. Baker, Eccles, &
Co., 242 U.S. 394, 402 (1917); Bigelow v. Old Dominion Copper Mining & Smelt-
ing Co., 225 U.S. 111, 134 (1912); Hilton v. Guyot, 159 U.S. 113, 183 (1895). See
also Rhodes, supra note 31, at 392 (“[The] power-based premise functioned rea-
sonably well, at least for natural individual defendants, early in U.S. history. . . .
Because travel was difficult, the parties or their property were often present in the
forum where the dispute arose. Thus, courts rarely needed to consider the con-
nection, if any, between an individual defendant and the litigation.”).
34. Pennoyer, 95 U.S. at 730 (quoting Lafayette Ins. Co. v. French, 59 U.S. 404,
406 (1856)) (emphasis added). Indeed, the Court referred on several subsequent
occasions to principles of “natural” justice when discussing notice. See, e.g., Turpin
v. Lemon, 187 U.S. 51, 57 (1902) (“[I]t would appear that the 14th Amendment
would be satisfied by showing that the usual course prescribed by the state laws
required notice to the taxpayer and was in conformity with natural justice.”); Spen-
cer v. Merchant, 125 U.S. 345, 358 (1888) (Matthews, J., dissenting) (“[Notice] is a
rule founded upon the first principles of natural justice.”); St. Clair v. Cox, 106
U.S. 350, 356 (1882) (citing the “principle of natural justice which requires no-
tice of a suit to a party before he can be bound by it.”).
Amendment as the location for the limits on personal jurisdiction

and the minimum requirements of notice. Justice Field treated the
Fourteenth Amendment foundation as completely mundane and
obvious, when in fact it was both new and not a completely intuitive
fit with the due process clause.35
Because the Court did not announce personal jurisdiction and
notice as formal concepts or categories, the decision reads as one
that is mainly about personal jurisdiction, but also maybe about no-
tice, weaving the justifications for both throughout the opinion. Jus-
tice Field supported the notice requirement with the preexisting
notions of “fairness” and “natural justice.” Both the requirement of
notice and the animating concepts behind it are used to support
the Court’s conclusions about personal jurisdiction. These notice
principles would continue to accompany the development of per-
sonal jurisdiction in the decades between Pennoyer and International
Shoe and into the modern era.
C. Personal Jurisdiction and Notice from Pennoyer Through

International Shoe and Mullane
The Pennoyer personal jurisdiction regime lasted until 1945. Al-
though much of the jurisdictional jurisprudence from this period
has receded into distant memory, the period from 1877 to 1945 was
actually a time of rich doctrinal exploration and growth. The Su-
preme Court and lower courts struggled within Pennoyer’s rigid ter-
ritorial framework to develop a personal jurisdiction doctrine that
kept pace with the fast-changing legal and economic landscape of
the United States as it entered the twentieth century.36
35. See Richard H. Fallon, Jr., Some Confusion About Due Process, Judicial Review,
and Constiutional Remedies, 93 COLUM. L. REV. 309, 317 (1993) (“[T]he Supreme
Court has identified some substantive due process rights that it has not even tried
to fit into a two-tiered model. For example, the ‘minimum contacts standard[ ]’
from personal jurisdiction.”).
36. Other scholars have produced far more detailed histories of early per-
sonal jurisdiction doctrine. This Article highlights the intersection of personal ju-
risdiction and notice. For more thorough histories with a broader perspective, see
Conison, supra note 8; Sachs, supra note 8. See generally Ralph U. Whitten, The
Constitutional Limitations on State-Court Jurisdiction: A Historical Interpretive Reexamina-
tion of the Full Faith and Credit and Due Process Clauses (Part One), 14 CREIGHTON L.
REV. 499 (1981) (discussing the history of the relationship between the Full Faith
and Credit Clause from early English times up until Pennoyer); Ralph U. Whitten,
The Constitutional Limitations on State-Court Jurisdiction: A Historical Interpretive Reex-
amination of the Full Faith and Credit and Due Process Clauses (Part Two), 14 CREIGH-
TON L. REV. 735, 840 (1981) (examining the history of full faith and credit with
due process from early English legal history through the American Civil War and
the ratification of the Fourteenth Amendment).
This Section contains a brief summary of the doctrinal devel-

opment in personal jurisdiction between Pennoyer and International
Shoe. During this time, notice was a visible and regular feature of
jurisdictional analysis, although courts were not consistent in their
determinations as to when notice mattered and what difference it
made in the ultimate outcome of a case.37
1. The In Rem Cases

Many of the cases in the first few decades after Pennoyer were
dedicated to clarifying the scope of, and justification for, in rem ju-
risdiction.38 These cases were fertile ground for the development
of personal jurisdiction doctrine because in rem cases provided one
of the few acceptable Pennoyer frameworks by which states could ef-
fectively assert control over non-resident defendants. These cases
were also the location of significant doctrinal development of con-
stitutional notice doctrine since, under Pennoyer, substituted service
was permissible with respect to in rem actions.39
37. It was also a period in which courts took a few decades to consistently fix
due process as the crucial (if still hazily defined) limitation on the exercise of
personal jurisdiction. See Conison, supra note 8, at 1141 (“For nearly forty years,
courts, including the Supreme Court . . . largely failed to treat Pennoyer as a consti-
tutional decision. . . . It was not until the Supreme Court’s decision in Riverside &
Dan River Cotton Mills v. Menefee . . . that [Pennoyer’s] status as a constitutional deci-
sion was retroactively confirmed.”). During these years, however, some lower fed-
eral courts and state courts did, from time to time, refer to the due process basis
for personal jurisdiction. See, e.g., Operative Plasterers’ & Cement Finishers’ Intl.
Ass’n v. Case, 93 F.2d 56, 63 (D.C. Cir. 1937) (“[I]t is perfectly consistent with due
process to provide that jurisdiction over an association doing business shall result
from service upon one or more of its members.”); Shambe v. Del. & H. R. Co., 135
A. 755, 757 (Pa. 1927) (“A state has no power to render a personal judgment
against a foreign corporation not doing business within the state. A judgment so
rendered was held a violation of the due process clause, and void.”) (internal cita-
tions omitted).
38. For example, the Court decided [several] cases in which a case that had
been styled in rem was actually in personam because the res at issued had changed
hands or was no longer within the territory of the State in a way which would justify
the operation of in rem jurisdiction. See, e.g., Nat’l Exch. Bank v. Wiley, 195 U.S.
257 (1904) (bank notes not an appropriate res when they had been sold prior to
the commencement of the suit); Sec. Sav. Bank v. California, 263 U.S. 282 (1923);
Wilson v. Seligman, 144 U.S. 41 (1892) (judgment not binding against a stock-
holder because a proceeding against stockholders was in personam, not in rem, and
stockholder had not received personal service of process as required by Pennoyer).
39. See WASSERMAN, supra note 7, at 130 (“During the nineteenth and early
twentieth centuries, the Supreme Court rarely had occasion to discuss the form
that notice had to take in in personam actions . . . because its personal jurisdiction
jurisprudence . . . ensured, as a practical matter, that defendants in such actions
received notice through personal service of process.”). During this period, courts
In these cases, courts would dutifully point out that actual no-
tice and personal service upon a defendant were not constitution-
ally required so long as the plaintiff followed the relevant niceties of
attachment at the outset of the suit.40 But the concern about notice
was never far from judges’ minds.41 Many of these opinions contain
passing references to the fact that a given defendant actually did
have notice of the lawsuit,42 or helpful reminders that ownership of
property within the territory would usually give rise to some form of
notice.43 Courts often noted with respect to in rem cases that
“seizure of the property . . . is a species of notice to the non-resident or
began filling in the due process elements of notice, namely that there were mini-
mum constitutional standards for service of process, and that the content of the
notice itself should sufficiently convey the relevant information regarding the pen-
dency of the lawsuit.
40. See, e.g., Sec. Sav. Bank, 263 U.S. at 287 (“the essentials of jurisdiction over
the deposits are that there be seizure of the res at the commencement of the suit,
and reasonable notice and opportunity to be heard.”); Grannis v. Ordean, 234 U.S.
385, 395–97 (1914) (in an in rem suit, notice by publication sufficient under Pen-
noyer notwithstanding a minor misspelling of the property owner defendant’s
name); Bower v. Stein, 177 F. 673, 677 (9th Cir. 1910) (service by publication for in
rem suit not set aside despite an error in affidavit as to resident of defendant); Kirk
v. United States, 137 F. 753, 755 (2d Cir. 1905) (“no man can be deprived of his
property without due notice and opportunity to be heard.”); Sutherland-Innes Co.
v. Am. Wired Hoop Co., 113 F. 183, 187 (8th Cir. 1901) (“when resort is had to
substituted service, there is always more or less danger that a judgment may be
rendered without actual notice to the defendant”); Bailey v. Sundberg, 49 F. 583,
585 (2d Cir. 1892) (admiralty case addressing the notice requirements for an in
rem [libel] of a ship noted that “notice is as indispensable as the arrest [of the ship]
to confer jurisdiction.”); Palmer v. McCormick, 28 F. 541, 544 (N.D. Iowa 1886)
(clarifying standard for publisher’s affidavit in constitutionally appropriate service
by publication); Porter v. Duke, 270 P. 625, 629–30 (Ariz. 1928) (reciting the ac-
cepted justifications for notice by publication in in rem cases).
41. See, e.g., Sutherland-Innes Co., 113 F. at 187 (value of notice sufficiently
strong such that substituted service should be limited to situations “only as might
be necessary to enable the courts of the state to effectually enforce . . . property
[rights] within their jurisdiction.”).
42. See, e.g., Herbert v. Bicknell, 233 U.S. 70, 74 (1914) (“[I]t appears that the
defendant had knowledge of the action . . . .”).
43. See, e.g., Herbert, 233 U.S. at 73–74 (framing the question as “[r]eally the
only matter before us that calls for a word is the decision that a judgment appropri-
ating property within the jurisdiction . . . is not made bad by the short and some-
what illusory notice to the owner” and concluding that, under Pennoyer, the
assumption that property is always in possession of the owner is sufficient); Oswald
v. Kampmann, 28 F. 36, 38 (W.D. Tex. 1886) (“[I]f [plaintiff challenging a judg-
ment] saw fit to abandon the country, and pay no attention to the property, she
ought not be heard to complain if the law makes an exception to the general rule
in her case.”); Geary v. Geary, 6 N.E.2d 67, 72 (N.Y. 1936) (emphasizing actual
notice in addition to the “possession of property” principle to justify jurisdiction).
his agent.”44 As Justice Bartholomew of the Supreme Court of

North Dakota explained about notice and substituted service, ser-
vice is “not mere idle form. It serves a substantial purpose. It is the
theory of the law that notice of the pendency of the action is thus
brought to the defendant. . . . It is the substituted service that gives
notice of the pendency of the action, and that notice is a direct
challenge to the defendant to appear and protect his property, if
any he have in the jurisdiction.”45
Notice, however, would never be taken so far as to overtake the
Pennoyer barrier between in personam and in rem bases for jurisdic-
tion. While notice could justify the exercise of jurisdiction over ab-
sent defendants in in rem cases, it could never, on its own, provide a
basis for personal jurisdiction itself. For example, the Supreme
Court of Michigan rejected a plaintiff’s argument that an Illinois
court had exercised valid in personam jurisdiction over the defen-
dant because defendant had actual notice of the lawsuit.46 Like-
wise, the concern that a vulnerable defendant might not have
received meaningful notice of a lawsuit did not prevent the Ninth
Circuit from upholding the exercise of in rem jurisdiction procured
by attachment and substituted service by publication.47 Other
courts made similar findings, namely, that Pennoyer’s allowance of
substituted service for in rem cases with absent non-residents consti-
tuted a constitutionally sanctioned carve-out to the requirement, or
even concern, of actual notice.48
Although most of the major in rem cases involved tangible
property located physically within the borders of a forum state, the
problem of intangible property offered courts the opportunity to
explore the possibilities for boundary pushing in personal jurisdic-
tion.49 Harris v. Balk 50 was one such case. The facts of Harris are
44. Dorr v. Gibboney, 7 F.Cas. 923, 925 (C.C. W.D.Va. 1878) (No. 4006).
45. Hartzell v. Vigen, 69 N.W. 203, 207–08 (N.D. 1896) (emphasis added).
46. See, e.g., Stewart v. Eaton, 283 N.W 651, 657–58 (Mich. 1939).
47. Cohen v. Portland Lodge No. 142, B.P.O.E., 152 F. 357, 358–62 (9th Cir.
1907).
48. See, e.g., Bower v. Stein, 177 F. 673, 676–77 (9th Cir. 1910). However, in
one curious lower court case, a federal District Court in New York proclaimed a
sort of exception to the seemingly universal rule from Pennoyer for an admiralty
seaman’s wages case in equity, finding no violation of due process when the defen-
dant “had full actual notice of the suit on the day when it was instituted, though
not legally served with process.” The City of New Bedford, 20 F. 57, 60 (S.D.N.Y.
1884).
49. See, e.g., McLaughlin v. Bahre, 35 Del. 446, 455–56 (Del. Super. Ct. 1933)
(seizure of stock without other notice is sufficient under both Pennoyer and the
common law customary principles that seizure of property constitutes constructive
notice).
fairly straightforward: Harris owed a debt to Balk and Balk owed a

debt to Epstein. Harris and Balk were both North Carolina re-
sidents. While Balk was on a trip to Baltimore, Epstein sued Balk in
rem, attaching the debt owed from Harris. Neither Harris nor Balk
appeared in the Maryland court, but upon his return to North Car-
olina, Balk arranged for payment to Epstein pursuant to an order of
the Maryland court. Harris then sued Balk for the debt in North
Carolina. The Maryland judgment would be valid if Maryland was
the situs of Balk’s debt to Harris.51 The Supreme Court held the
situs of the debt traveled with the debtor. This allowed the Mary-
land court to “reach” Harris, via the debt that he was owed, in
North Carolina. The Court did not cite Pennoyer, nor did it linger
much on the finer points of personal jurisdiction. Instead, the opin-
ion centers on the debtor-creditor relationship, the situs of the
debt, and the obligation of a garnishee to give notice to the credi-
tor of the attachment.52 The Court did, however, note with ap-
proval that Balk did in fact have notice of the attachment, both in
fact and because the Maryland attachment procedure required
such notice,53 and the Court ended the opinion with dicta speculat-
ing that a failure by the garnishee to notify the creditor would de-
prive him of using the judgment in the first action as a bar to
liability in a second action.54 Once again, the fact of notice fortified
the exercise of jurisdiction. The fairness of jurisdictional innova-
tions was bolstered by the assurance that no one was (or should
have been) surprised by jurisdiction nor deprived of the opportu-
nity to be heard.55
2. The Marriage Exception Cases
Cases concerning the status of a marriage constituted one of
the exceptions to Pennoyer’s requirement of territorial service, and
thus provided another opportunity for doctrinal development.
Courts would stress the importance of a state being able to adjudi-
cate the status of a marriage within the state,56 but then temper that
blunt exercise of power with the assurance that, for example, “the
50. 198 U.S. 215 (1905).

51. Id. at 221–22.
52. Id. at 227.
53. Id. at 227–28.
54. Id. at 228.
55. Cf. id. (noting that the creditor would have had “the opportunity to de-
fend himself” in the Maryland lawsuit).
56. See, e.g., Haddock v. Haddock, 201 U.S. 562, 572 (1906) (“[N]o question
can arise on this record concerning the right of the State of Connecticut within its
borders to give effect to the decree of divorce rendered in favor of the husband by
wife [had] actual notice of the suit.”57 And when a party did not
have notice of the suit, a lower court might opt for the most narrow
reading of Pennoyer’s marriage status exception that emphasized the
strength of the power/sovereignty theory as a justification for al-
lowing limited substitute service to out-of-state defendants.58 Curi-
ously, the Supreme Court used the matrimonial cases as an
opportunity to draw a post-Pennoyer wedge between the Full Faith
and Credit Clause and the Fourteenth Amendment constitutional-
ity of personal jurisdiction itself. In Haddock v. Haddock, the Court
held that constructive service pursuant to a Connecticut statute on
a non-resident spouse was sufficient for a divorce decree to be en-
forceable within Connecticut. Another state would be permitted to
enforce the decree on public policy grounds if it so chose, but
other states were not required to enforce such a decree as a matter of
Full Faith and Credit because this would create a sort of “race to the
bottom” in which states with lax residency laws for divorce would
attract ill-motivated spouses seeking to abandon their marriages
and obtain a divorce decree in a favorable jurisdiction.59 This was
likely part of a larger project in which the Court was loath for the
federal courts to get too involved in questions of the state law of
domestic relations,60 and thus can been seen as a (perhaps unprin-
cipled) exception to full faith and credit, more than as a case of the
Court making inconsistent decisions about personal jurisdiction
over a defendant based on whether enforcement was sought within
the state or extraterritorially.61
the courts of Connecticut, he being at the time when the decree was rendered
domiciled in that State.”).
57. Atherton v. Atherton, 181 U.S. 155, 172 (1901).
58. See De la Montoya v. De la Montoya, 44 P. 345, 348 (Cal. 1896) (“The idea
that domicile determines jurisdiction in divorce rests upon the assumption that
status depends on domicile, and is of interest there only. Judge Field could not
have had this in mind in Pennoyer v. Neff . . . when he speaks of ‘absent defendants’
he cannot mean those not domiciled within the state, but must have meant simply
those physically absent, and upon whom, therefore, personal service of process
could not be made.”).
59. 201 U.S. at 575–77. See also Neal R. Feigenson, Extraterritorial Recognition of
Divorce Decrees in the Nineteenth Century, 34 AM. J. LEGAL HIST. 119, 129–60 (1990)
(detailing the history of the cases and history leading to Haddock v. Haddock).
60. See the domestic relations exception to subject matter jurisdiction, which
“divests the federal courts of power to issue divorce, alimony, and child custody
decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).
61. See Feigenson, supra note 59, at 125–29.
3. Corporations and Consent Cases

The cases about service on an out-of-state corporation formed
an important bridge between the territorial rigidity of the Pennoyer
holding and the more abstract regime to come in International Shoe.
As we shall see, expanding the viability of implied consent to juris-
diction was a major procedural innovation that ultimately
culminated in the minimum contacts test, and the corporations
cases were key in developing the doctrinal prerequisites to thinking
broadly about the role of consent. Corporations were useful tools
of jurisdictional expansion because if a business registered or other-
wise affiliated itself with the forum state in a statutorily prescribed
manner, “the state official was considered the corporation’s agent,
[and] in-state service on the official was deemed valid service on the
defendant, regardless of whether the official or the plaintiff made
any attempt to notify the corporation itself.”62
In St. Clair v. Cox,63 the Supreme Court held that a state could
exercise personal jurisdiction over foreign corporations when juris-
diction was secured by service of process on designated agents of
the corporation. Before International Shoe introduced minimum
contacts as the constitutionally acceptable substitute for fictive cor-
porate “presence” within a state, St. Clair stood for the proposition
that when one serves a corporation’s authorized agent within the
state, the corporation must also be doing business within the
state.64 Justice Field, who also penned Pennoyer, cautioned that this
exercise of jurisdiction “must not . . . encroach upon that principle
of natural justice which requires notice of a suit to a party before he
can be bound by it”65 and the notice itself “must be reasonable.”66
62. Rhodes, supra note 31, at 394.

63. 106 U.S. 350 (1882).
64. See, e.g., Frawley, Bundy & Wilcox v. Penn. Cas. Co., 124 F. 259, 263
(C.C.M.D. Pa. 1903) (citing St. Clair v. Cox for the proposition that “it is essential in
every case in which personal jurisdiction over such a corporation is claimed that
there shall have been an actual and substantial transacting of business by it within
the state.”). See also Riverside & Dan River Cotton Mills v. Menefee, 237 U.S. 189,
193–94 (1915); Hazeltine v. Miss. Valley Fire Ins. Co., 55 F. 743, 745 (C.C.W.D.
Tenn. 1893); United States v. Am. Bell Tel. Co., 29 F. 17, 35 (C.C.S.D. Ohio 1886);
Davidson v. Henry L. Doherty & Co., 241 N.W. 700, 703 (Iowa 1932) (upholding
statute that allows substituted service on the agent of a foreign corporation as one
that “meets every essential requirement of due process of law.”).
65. St. Clair v. Cox, 106 U.S. 350, 356 (1882).
66. Id. Some courts issued opinions that read like the forerunners of post-
International Shoe jurisprudence, such as the Sixth Circuit’s decision in Smith v.
Farbenfabriken of Elberfeld Co., 203 F. 476 (6th Cir. 1913) which upheld service in
patent infringement actions under a federal statute that allowed service on a busi-
ness’s agent “conducting business” within the state. In finding both the statute
At times, the Court lapsed back into formalism, holding that strict
compliance with a statute that allowed for substituted service of a
corporation on a Secretary of State was sufficient, even when the
state official did not provide any further notice of the pendency of
an action to the defendant itself.67 This pattern would repeat itself
many times in the subsequent decades: having used notice as a
functional due process crutch for creating a jurisdictional innova-
tion, the Court would then treat the new rule as one with its own
formal identity and justification, sometimes unmooring it from the
original justification or connection to due process.68
Hess v. Pawloski 69 is often cited as a case that marks the begin-
ning of the transition to the modern era of personal jurisdiction.70
In Hess, the Court approved the use of non-resident motor vehicle
statutes as a method of securing jurisdiction over out-of-state de-
fendants on a theory of implied consent.71 Much of the commen-
tary on Hess focuses on how the Court stretched consent, which had
always been a common law basis for exercising jurisdiction,72 as a
means to begin building a bridge between the strict territorial re-
gime of Pennoyer to the permissibility of more modern long-arm
and its application valid, the court rehearsed a list of the business’s contacts in the
state of Michigan and found that service upon an agent pursuant to the federal
statute fell unquestionably within the boundaries of Pennoyer.
67. Washington ex rel. Bond & Goodwin & Tucker, Inc. v. Superior Court of
Washington, 289 U.S. 361 (1933).
68. See infra Part III.B.
69. 274 U.S. 352 (1927).
70. See, e.g., Patrick J. Borchers, Extending Federal Rule of Civil Procedure 4(k)(2):
A Way to (Partially) Clean Up the Personal Jurisdiction Mess, 67 AM. U. L. REV. 413, 440
(2017) (noting that non-resident motor vehicle statutes such as the Massachusetts
statute in Hess “began pushing the common law’s jurisdictional bounds.”); Rhodes,
supra note 31, at 393; Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to
Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1149 (1966) (citing Hess as a
“seminal” case in the modern jurisdictional era). Prior to Hess, the Supreme Court
and some lower courts had tied jurisdiction via consent to the fact that a party
could consent to notice by substituted service such as an agent or by publication.
See, e.g., Lafayette Ins. Co. v. French, 59 U.S. 404, 408 (1855) (service on an agent
in a state “foreign” to the “company’s creation” is permitted); Michigan Tr. Co. v.
Ferry, 175 F. 667, 673 (8th Cir. 1910) (becoming an executor of an estate was an
“office tendered on [the defendant] on the condition imposed by these statutes
that the probate court should have the power to call him before it . . . without
other warning than a notice published in a newspaper.”).
71. 274 U.S. at 357 (“in advance of the operation of a motor vehicle on its
highway by a nonresident, the state may require him to appoint one of its officials
as his agent on whom process may be served in proceedings growing out of such
use.”).
72. See Hill v. Mendenhall, 88 U.S. 453 (1874) (pre-Pennoyer case holding that
voluntary appearance in an action confers personal jurisdiction on a court).
statutes.73 But, although consent formed an important doctrinal

foundation, the value of notice was not far behind. The Court took
care to note that under the Massachusetts statute, “[i]t is required
that [the defendant] shall actually receive and receipt for notice of
the service and a copy of the process.”74 Echoing the “opportunity
to be heard” aspect of notice, the Court noted with approval that
the statute “contemplates such continuances as may be found nec-
essary to give reasonable time and opportunity for defense.”75 In
other words, although the Court did not yet make explicit appeals
to “fairness” or “reasonableness,” such equitable concerns were
clearly at the forefront of the move to expand jurisdiction over ab-
sent defendants, and notice was a central value.76
4. The End of the Journey to International Shoe

Milliken v. Meyer 77 is our last stop on the journey from Pennoyer
to International Shoe. Milliken served Meyer, a Wyoming resident,
with process in Colorado under a Wyoming statute that permitted
out-of-state service on Wyoming residents. The Supreme Court up-
held the constitutionality of this in personam out-of-state service on
the theory that “[d]omicile in the state is alone sufficient to bring
an absent defendant within the reach of the state’s jurisdiction for
purposes of a personal judgment by means of appropriate substi-
tuted service.”78 It is in this case, just before the watershed of the
73. See, e.g., Andrew D. Bradt & D. Theodore Rave, Aggregation on Defendants’
Terms: Bristol-Myers Squibb and the Federalization of Mass-Tort Litigation, 59 B.C. L.
REV. 1251, 1269 (2018) (Hess was one of the “legal fictions to accommodate
the Pennoyer regime to modern problems” which “the Supreme Court seemingly
abandoned in 1945 with International Shoe.”); Rhodes, supra note 19, at 144–45
(Hess and other implied consent cases as a part of the evolution of jurisdiction over
out of state defendants from Pennoyer to International Shoe); Verity Winship, Jurisdic-
tion Over Corporate Officers and the Incoherence of Implied Consent, 2013 U. ILL. L. REV.
1171, 1187 (2013) (implied consent broadened jurisdiction after Pennoyer but was
mostly abandoned as unnecessary after International Shoe).
74. Hess, 274 U.S. at 356.
75. Id.
76. The fact that a defendant had been notified pursuant to service on the
secretary of state was also integral to the Supreme Court’s holding in Wuchter v.
Pizzutti, 276 U.S. 13 (1928).
77. 311 U.S. 457 (1940).
78. Id. at 462. Although in hindsight it might seem like an obvious and fore-
gone conclusion that domicile was a common law and thus per se constitutional
basis of personal jurisdiction, this was not necessarily understood to courts or ju-
rists pre-Milliken. For example in 1896, Justice Temple of the Supreme Court of
California declared that “[d]omicile has never, so far as I am aware, been made the
test of jurisdiction to render a personal judgment.” De la Montoya v. De la Mon-
toya, 44 P. 345, 346 (Cal. 1896). See also Raher v. Raher, 129 N.W. 494, 499 (Iowa
minimum contacts era, that the Court set forth one of its strongest
ties between notice and the due process basis for personal
jurisdiction:
Its adequacy so far as due process is concerned is dependent
on whether or not the form of substituted service provided for
such cases and employed is reasonably calculated to give him
actual notice of the proceedings and an opportunity to be
heard. If it is, the traditional notions of fair play and substantial
justice implicit in due process are satisfied.79
This passage is rather amazing in hindsight. Because it is this
very passage that sets up the magic “fair play and substantial justice”
words that formulate the minimum contacts test in International
Shoe. Here, in Milliken, notice and opportunity to be heard forms
the heart of the fairness argument that justifies the extension of in
personam jurisdiction to the exercise of a long-arm statute. The ap-
peal to due process fairness is not the only basis for the Court’s
decision. Justice Douglas stressed that the “authority of a state over
one of its citizens is not terminated by the mere fact of his absence
from the state.”80 But even this pronouncement is eventually
capped by a reference back to notice. After noting that power over
domiciliaries is “not dependent on continuous presence in the
state,” Justice Douglas approved the use of out-of-state service
“where the state has provided and employed a reasonable method
for apprising such an absent party of the proceedings against
him.”81
The cases I have summarized in this section show that notice
played a quiet but relatively consistent role in pushing personal ju-
risdiction doctrine forward from the rigid formalism of Pennoyer to
the modern functionalism of International Shoe. It remained the
case, however, that the main animating theories behind Pennoyer—
1911) (finding as to cases involving residents served outside of the state that “in
many cases . . . are to be found unqualified statements that the laws of the state
have no extraterritorial force, and that process served outside the state will not give
the court jurisdiction.”). The Supreme Court of Arizona characterized Milliken as
a case in which the U.S. Supreme Court “receded from some of the implications of
Pennoyer v. Neff.” D.W. Onan & Sons v. Superior Court, 179 P.2d 243, 262 (Ariz.
1947).
79. Meyer, 311 U.S. at 463. The Court went on to assure the reader that Meyer
did, in fact, receive actual notice of the lawsuit.
80. Id. (“[T]he authority of a state over one of its citizens is not terminated
by the mere fact of his absence from the state. The state which accords him privi-
leges and affords protection to him and his property by virtue of his domicile may
also exact reciprocal duties.”).
81. Id. at 464.
power, sovereignty, and territoriality dominated most of the analy-

sis. This Article does not suggest otherwise. However, even cases
that have come to stand for the strongest foundations of the power
theory may not be so clear cut. Consider the 1917 Justice Holmes
decision in McDonald v. Mabee.82 The lawsuit at issue was filed in
Texas, and the defendant was domiciled in that state at the outset
of the suit. After drifting in and out of the state for a bit, the defen-
dant finally established a new domicile in Missouri. The plaintiffs
served the defendant under a Texas statute that permitted service
on an absent defendant for four successive weeks in a newspaper.
The Supreme Court had not yet affirmatively held that a state could
exercise personal jurisdiction over an absent domiciliary,83 so ser-
vice was necessary as a predicate both for notice and for personal
jurisdiction. The McDonald opinion is but five paragraphs long, but
it contains all of the confusion of the past and future of personal
jurisdiction regarding its theoretical bases. Justice Holmes declared
that “[t]he foundation of jurisdiction is physical power,”84 but the
decision is riddled with concerns about notice. The Court found
that, as far as the due process considerations of service were con-
cerned, perhaps “a summons left at his last and usual place of
abode would have been enough.”85 This sentiment was preceded by
a conspicuous notation that the defendant still had family in the
state, thus implying that the defendant would be more likely to
learn of the suit. Holmes quickly returned to tying power together
with notice: “We repeat, also, that the ground for giving . . . effect
to a judgment is that the court rendering it had acquired power to
carry it out; and that it is going to the extreme to hold such power
gained even by service at the last and usual place of abode.”86
Beyond emphasizing sovereignty and territoriality, the Court
did not always treat notice and personal jurisdiction as identical or
82. 243 U.S. 90 (1917). Scholars frequently cite this case because of Holmes’
famous formulation that “the foundation of jurisdiction is physical power.” See,
e.g., Rhodes, supra note 19, at 143; Arthur Taylor von Mehren, Adjudicatory Jurisdic-
tion: General Theories Compared and Evaluated, 63 B.U. L. REV. 279, 283 (1983);
Debra Windsor, How Specific Can We Make General Jurisdiction: The Search for a Refined
Set of Standards, 44 BAYLOR L. REV. 593, 595 (1992).
83. That decision would not come until 1940 in Milliken v. Meyer. 311 U.S.
457 (1940).
84. McDonald, 243 U.S. at 91.
85. Id. As one scholar has noted, however, it is unclear exactly what Holmes
meant to endorse here in terms of the specifics of service. See Arthur F. Green-
baum, The Postman Never Rings Twice: The Constitutionality of Service of Process by Post-
ing After Greene v. Lindsey., 33 AM. U.L. REV. 601, 614 (1984).
86. McDonald, 243 U.S. at 91 (emphasis added).
interchangeable as a matter of due process and in the underlying

appeals to natural justice. In Baker v. Baker, Eccles & Co.,87 for exam-
ple, the Court stressed the concept of notice as fundamental to the
elevation of both personal jurisdiction and notice to constitutional
due process values, noting that “[t]he fundamental requisite of due
process in judicial proceedings is the opportunity to be heard. To
hold one bound by the judgment who has not had such opportu-
nity is contrary to the first principles of justice.”88 However, the
Court went on to clarify that personal jurisdiction did have a due
process foundation independent of the notice and opportunity to
be heard justification: “to assume that a party resident beyond the
confines of a state is required to come within its borders and submit
his personal controversy to its tribunals upon receiving notice . . . is a
futile attempt to extend the authority and control of a state beyond
its own territory.”89 In Baker, it appears that the defendant in the
original action—a bereaved mother who would later claim an enti-
tlement to shares of her deceased son’s business—was not served
with notice, and the lack of actual notice clearly vexed the Court.
Nonetheless, it is significant that Justice Pitney took pains to note
that, while “opportunity to be heard” appears to be at the heart of
due process, the territorial concerns had their own jurisdictional
merit.
As this Part has shown, the law of personal jurisdiction and no-
tice went through a great deal of doctrinal development from the
time prior to Pennoyer up through the era directly preceding Inter-
national Shoe. Not only did the doctrines grow and change, but also
there was a good deal of variation and inconsistency among the
cases, given that the era was one of supposedly “strict” rigidity.
That being said, there is one generalization worth making
about the law during this period about the development of notice
doctrine. This was an era in which two eventually-distinct concepts
of notice were merged: the concept of notice of suit and notice of
jurisdiction. To the extent that courts were concerned at all with
notice during this period,90 they were primarily focused on actual
or constructive notice of a pending lawsuit. Notice of jurisdiction
was subsumed into the concept of notice of suit because of the joint
87. 242 U.S. 394 (1917).

88. Id. at 403.
89. Id.
90. See WASSERMAN, supra note 7 (noting that even cases of notice of suit were
limited during this period because Pennoyer’s in-hand service requirement en-
sured that questions of notice only came up in the cases that fell into Pennoyer’s
exceptions).
structure of personal jurisdiction and notice. The foundational rule

was that, in most cases, personal jurisdiction was perfected by in-
hand personal service within the territory of the forum state. It
would not have occurred to people at that time to add an element
of notice of jurisdiction to this scheme—they would have assumed
that people understood that physical presence in the territory of
the forum state was sufficient to subject them to the jurisdiction of
that state in at least a limited fashion. Thus, additional “notice” of
jurisdiction would have been redundant.
The same can be said of in rem jurisdiction—ownership of
property within the forum state was itself notice that the state had
jurisdiction over said property. This is why the primary question
about jurisdiction over property was with notice of suit—the con-
cern was that absent property owners might not learn of a pending
action. The conclusion that property owners could or should be
aware of the status of their property and thus be aware of any
seizures or notices was almost always sufficient to satisfy the due
process components of personal jurisdiction and notice.
The other possibilities for jurisdiction over out-of-state defend-
ants were similarly constructed to include an element of notice of
jurisdiction. The marriage and corporate status exceptions shared
with in rem the conceptual foundations of adjudicative power and
jurisdiction. The concepts of consent, both express and implied,
have an even stronger link—that notice of jurisdiction is bound up
with the act giving rise to consent. Personal jurisdiction over absent
domiciliaries was analogous to in-hand service within the territory;
it was simply assumed that a person domiciled within a state would
understand that she was subject to its jurisdiction.
This, then, was the hierarchy of personal jurisdiction and no-
tice prior to International Shoe. Personal jurisdiction took center
stage, since the doctrine greatly restricted the availability of substi-
tuted service or service outside of the forum state. And notice doc-
trine was concerned almost entirely with notice of suit rather than
notice of jurisdiction because personal jurisdiction itself was con-
structed so that notice of jurisdiction was nigh synonymous with its
exercise. It is with this doctrinal backdrop in mind that I turn to
the beginning of the modern era of personal jurisdiction and
notice.
II.
PERSONAL JURISDICTION IN INTERNATIONAL
SHOE AND MULLANE
The decisions in International Shoe (1945)91 and Mullane v. Cen-
tral Hannover Bank & Trust Co. (1950)92 came during a larger era of
major procedural change in American jurisprudence.93 Interna-
tional Shoe ushered in the modern era of personal jurisdiction juris-
prudence by actively unchaining in personam jurisdiction from the
rigid territorial sovereignty regime of Pennoyer.94 Mullane marked
the beginning of the modern era of notice jurisprudence by articu-
lating that the due process right of “notice and opportunity to be
heard” requires notice that is “reasonably calculated under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their
objections.”95
A. International Shoe and the Alternative History of a Minimum

Contacts Test for Notice
International Shoe broke personal jurisdiction free from the Pen-
noyer framework where jurisdiction was tightly bound to notions of
territoriality and sovereignty.96 The Court held that Washington
91. Intl. Shoe Co. v. Washington, 326 U.S. 310 (1945).

92. 339 U.S. 306, 314 (1950)
93. 1938 saw the introduction of the Federal Rules of Civil Procedure and the
famous Erie case. 1940 ushered in the era of modern class action jurisprudence
with Hansberry v. Lee, 311 U.S. 32, (1940) and modern forum non conveniens doc-
trine was born in 1947 in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), a case which
led to the codification of transfer of venue within the federal court system.
94. See, e.g., Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes
Extended the Limits of Due Process, 84 B.U. L. REV. 491, 492–93 (2004) (International
Shoe “transformed” personal jurisdiction analysis); William M. Richman, Under-
standing Personal Jurisdiction, 25 ARIZ. ST. L. J. 599, 599 (1993) (“in Interna-
tional Shoe Co. v. Washington, the Court rejected the rigid territorialism of Pennoyer
v. Neff”); Jane Rutherford, The Myth of Due Process, 72 B.U. L. REV. 1, 37 (1992)
(“While Pennoyer cast the due process question of jurisdiction in terms of territorial
power by asking, ‘is the defendant there?,’ International Shoe changed the question
to, “is it fair?”).
95. Mullane, 339 U.S. at 314.
96. See, e.g., Donald L. Doernberg, Resoling International Shoe, 2 TEX. A&M L.
REV. 247, 260 (2014) (describing how International Shoe broke personal jurisdiction
from the Pennoyer mold). But see Rhodes, supra note 31, at 390 (contesting “the
familiar story . . . that International Shoe . . . wrought a fundamental change” in
personal jurisdiction doctrine.); Andrew L. Strauss, Where America Ends and the Inter-
national Order Begins: Interpreting the Jurisdictional Reach of the U.S. Constitution in
Light of a Proposed Hague Convention on Jurisdiction and Satisfaction of Judgments, 61
ALB. L. REV. 1237, 1250-51 n.70 (1998) (“The Supreme Court formally brought an
State could exercise personal jurisdiction over the Missouri-head-

quartered Delaware corporation because “due process requires only
that . . . if [the defendant] be not present within the territory of the
forum, he have certain minimum contacts with it.”97
Justice Stone traced the history by noting that—
[h]istorically the jurisdiction of the courts to render judgment
in personam is grounded on their de facto power over the de-
fendant’s person. Hence his presence within the territorial ju-
risdiction of court was prerequisite to its rendition of a
judgment personally binding him. But now that the capias ad
respondendum has given way to personal service of summons or
other form of notice, due process,” only minimum contacts
with the forum state are required.98
This passage offers the first clue into the future detachment of
notice from personal jurisdiction. The Court portrays personal ser-
vice and “other forms” of notice as mechanisms that exist apart
from due process, or certainly apart from the due process consider-
ations of personal jurisdiction. One mechanism, the “capias ad
respondendum,” simply gave way to new mechanisms. The focus of
due process analysis would no longer be on the mechanism, but on
presence and its newfound alternative: minimum contacts.
This is the very paragraph in which the Court introduces its
enduring formulation of minimum contacts; that minimum con-
tacts are “such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’”99 But, we
have already seen the origin of this language. It comes from Milliken
where the Court’s assessment that jurisdiction did meet the “tradi-
tional notions of fair play and substantial justice” emerged from its
explicit satisfaction that the defendant had actual notice of the law-
suit and that the Wyoming statute provided for adequate notice.
In Milliken, the Court wove its discussion of notice directly into
the conclusion that Wyoming could exercise personal jurisdiction
over a domiciliary served out of state.100 In International Shoe, how-
ever, Justice Stone took up notice as a due process issue distinct
from personal jurisdiction. Having finished the explanation of min-
end to the era of territorial jurisdiction when it explicitly articulated the new mini-
mum contacts standard for asserting personal jurisdiction in the case of Interna-
tional Shoe Co. v. Washington.”).
97. Intl. Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
98. Id.
99. Int’l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 341 U.S. 457, 463
(1940)).
100. See supra notes 77-81 and accompanying text.
imum contacts, he wrote that the Court is “likewise unable to con-

clude that the service of process . . . was not sufficient notice of the
suit.”101 If anything, it is personal jurisdiction that supports the con-
clusion that notice was sufficient under the due process clause,
rather than relying on the fact of notice to support personal juris-
diction. In upholding service of process by registered mail, the
Court opined that the lawsuit was sufficiently related to [the defen-
dant’s] activities,” such that it “rendered International Shoe’s agent
an appropriate “vehicle for communicating the notice.”102
Justice Stone further remarked that “[i]t is enough that appel-
lant has established such contacts with the state that the particular
form of substituted service adopted there gives reasonable assur-
ance that the notice will be actual.”103 This is, in retrospect, a re-
markable sentence, for it contains the seeds of what might have
been, in another world, the new test for notice.
One can imagine an alternate history in which International
Shoe set out the minimum contacts test which would be used both
for personal jurisdiction and for notice.104 This would have offered
some continuity with Pennoyer in which a single mechanism (in state
personal service) fulfilled the due process requirements for both in
personam jurisdiction and notice.
In this alternate world, courts would have operated under the
assumption that due process sets the floor for personal jurisdiction
and notice, and that both are governed by a minimum contacts test
as set out in International Shoe. Much ink might have been spilled in
parsing the difference for what “personal jurisdictional minimum
contacts” means or requires versus “notice minimum contacts.” Of
course, that world never unfolded. The parsing of minimum con-
tacts has indeed been robust, but it is confined to personal jurisdic-
tion. Notice remained, for the most part, disconnected from
minimum contacts, and soon found its own test, and its own path,
cemented five years later in Mullane.
For now, it is enough to see that International Shoe was a re-
markable inflection point in the doctrinal journal of personal juris-
diction and notice. The Court spoke directly to the issue of notice
of suit, passing favorably on that fact both in terms of the lawsuit at
101. Int’l Shoe, 326 U.S. at 320 (emphasis added).

102. Id.
103. Id.
104. At least one State Supreme Court, three years after International Shoe,
characterized the historical development of jurisdiction from Pennoyer to Interna-
tional Shoe as one that was intimately bound up with the due process requirements
of notice. See Wein v. Crockett, 195 P.2d 222 (Utah 1948).
hand and the Washington state statute that authorized out-of-state

service. The Court also connected minimum contacts to the idea of
notice of jurisdiction, thus foreshadowing how the due process fo-
cus on notice in personal jurisdiction would slowly shift from notice
of suit to notice of jurisdiction. Finally, the Court wrote about no-
tice as a concept that was integral to the due process inquiry of
personal jurisdiction, but also characterized notice as a due process
doctrine that is separate from personal jurisdiction. Although
other pre-International Shoe cases show a similar ambivalence about
the relationship, the separation in International Shoe, however cas-
ual, was a sign of the more formal split to come.
B. Mullane and the New Trajectory of a Distinct Standard for

Due Process in Notice
Just five years after International Shoe, the Supreme Court issued
its decision in Mullane,105 the seminal notice case of the modern
era. A trust company for a common trust fund brought an action
for a judicial accounting mandated under New York banking law
that provided for notice to the beneficiaries via publication for four
successive weeks in a newspaper. The Supreme Court held that ser-
vice by publication was insufficient for the known beneficiaries of
the trust but was sufficient for the unknown beneficiaries who could
not be found.106
Mullane was an ideal case for the Court to establish a reasona-
bleness standard for notice because, in one fact pattern, it allowed
the Court to compare and contrast differently situated parties af-
fected by a legal proceeding and delineate the due process floor for
each of them. Service by publication to all beneficiaries would not
be “a reliable means of acquainting interested parties”107 of the
pendency of an action, but requiring personal service to all benefi-
ciaries including the unknown beneficiaries “would place impossi-
ble or impractical obstacles”108 to maintaining the lawsuit.
Additionally, service by publication to the future or unknown bene-
ficiaries was sufficient under these particular circumstances because
105. 339 U.S. 306 (1950).

106. Id. at 317. The Court here spoke both of beneficiaries who could not be
found with reasonable due diligence, as well as beneficiaries with “conjectural or
future” interests whose whereabouts might be required to be ascertained under
other circumstances.
107. Id. at 315; id. at 318 (“Where the names and post office addresses of
those affected by a proceeding are at hand, the reasons disappear for resort to a
means less likely than the mails to apprise them of [the action’s] pendency.”).
108. Id. at 314.
the beneficiaries shared common interests, and thus it was reasona-

ble to believe that the known beneficiaries could “safeguard the in-
terests of all.”109
Even though Mullane is primarily a decision about notice, it is
important to remember that the Court also passed on questions of
personal jurisdiction because Mullane challenged the jurisdiction
of the New York court to hear the action and issue a binding judg-
ment as to all of the beneficiaries. Like the defendant in Pennoyer,
Mullane made constitutional objections both to the exercise of
power and to the mechanism of service. But unlike Pennoyer, the
Court had little problem disposing of the jurisdictional issue. The
Court acknowledged that there was some uncertainty over whether
the action was in rem or in personam, but that, regardless of the clas-
sification, a judgment would bind known and unknown benefi-
ciaries, many of whom were outside the state of New York and were
not served within the state.110 Justice Jackson breezily dispensed
with the jurisdictional question, holding that states had an interest
in providing for such accounting proceedings, and that it is “be-
yond doubt the right of its courts to determine the interests of all
claimants, resident or nonresident, provided its procedure accords
full opportunity to be heard.”111 In other words, the power of the
court wasn’t the real question, or a close call. The real question
here was notice.
To appreciate Mullane’s place in the shared genealogy of per-
sonal jurisdiction and notice, it is useful to investigate the authority
that Justice Jackson cites—and that which he omits—following the
famous “reasonably calculated under the circumstances” language.
He first cites Milliken, the very same case that lent the words “tradi-
tional notions of fair play and substantial justice” to International
Shoe’s minimum contacts standard.112 It seems unlikely that the Mil-
liken Court itself thought of Milliken as a major notice case. The
service of process in Milliken was quite ordinary—personal service
on the defendant.113 The only wrinkle was that the Wyoming resi-
dent was served outside of the borders of Wyoming.
Milliken was not a case about the adequacy of notice. No one
was wondering in that case whether the defendant was actually ap-
109. Id. at 319.

110. Id. at 312–13.
111. Id. at 313.
112. Id. at 314.
113. Milliken v. Meyer, 311 U.S. 457, 459 (1940) (“Meyer, who was asserted to
be a resident of Wyoming, was personally served with process in Colorado pursuant
to the Wyoming statutes.”).
prised of the action. Both the facts of the case and the logical infer-
ences about personal service made that clear. Milliken was about
power, pure and simple, and about whether it was a violation of due
process for the state to exercise jurisdiction over a domiciliary, even
if service occurred outside of the state borders. But Milliken did not
really add anything interesting to the law of notice itself. It does not
seem that there was any confusion prior to Milliken vis-à-vis notice
doctrine about whether in-hand service was an adequate mecha-
nism for apprising a defendant of an action, nor did there appear
to be concerns with whether personal service outside of a state was
somehow less likely to apprise a party of an action than process
served personally within a state’s borders. Outside of its personal
jurisdiction holding, Milliken simply stands for the proposition that
notice and opportunity to be heard is a crucial part of due process.
After Milliken, Justice Jackson supported the notice formulation
with more traditional cases like Grannis v. Ordean 114 and Roller v.
Holly,115 cases that in turn grounded the due process notice right in
Lafayette Insurance Company v. French, the same pre-Pennoyer case that
located notice and jurisdiction in principles of “natural justice.”116
Justice Jackson also cited Hess v. Pawlowski, as a favorable exam-
ple of a method of service “that is in itself reasonably certain to
inform those affected.”117 Recall that Hess occupied a more contro-
versial space regarding notice than did Milliken, belonging to the
group of cases in which the Supreme Court found and then reaf-
firmed that substituted service on a state officer, who would then
attempt to find and serve the relevant defendant, did indeed give
sufficient notice to defendants such that they did not lose the ability
to appear and defend themselves in a proceeding.118
It is important to observe that the Court did not cite Interna-
tional Shoe. In fact, the Court actually cited no authority at all for its
personal jurisdiction holding. It rejected the strict framework of
Pennoyer without identifying International Shoe as the recent source
of that rejection. Justice Jackson then asserted, citing no authority
at all, that personal jurisdiction is primarily justified on the State’s
interest. The omission is all the more puzzling considering that the
International Shoe Court nodded in the direction of recognizing the
interests of the forum state via the observation that “sufficient con-
tacts or ties with the state of the forum to make it reasonable and
114. 234 U.S. 385 (1914).

115. 176 U.S. 398 (1900).
116. See supra note 19 and accompanying text.
117. Mullane, 339 U.S. at 315.
118. See supra Part I.C.3.
just . . . to permit the state to enforce the obligations which appel-

lant has incurred there.”119 It would not have been a stretch to rein-
force the importance of New York’s interest in adjudicating the
rights of absent beneficiaries with a comparison to Washington
state’s adjudicational interest in International Shoe, particularly be-
cause the International Shoe Court used minimum contacts to sup-
port its holding that Washington state could levy the
unemployment tax in addition to its holding regarding personal ju-
risdiction.120 International Shoe’s absence in Mullane is also notable
considering that the International Shoe Court’s discussion of notice
implied that minimum contacts might provide the constitutional
standard for evaluating whether notice comports with due
process.121
It is understandable, however, why the Court did not return to
the minimum contacts concept here to provide a standard. It would
have been quite a leap to go from the “systematic and continuous
activities” of a large corporation selling shoes in the forum state to
the contacts of beneficiaries, many of them unknown, to a common
trust fund. The Court would need more sophisticated jurisdictional
tools to give a fuller explanation of personal jurisdiction over ab-
sent claimants or beneficiaries, tools that would develop in tandem
with the growth of class and other mass actions, and standards that
have resurfaced as difficult and contested in the Court’s newest
round of personal jurisdiction cases.122
International Shoe and Mullane were not only the launching pad
for the modern era of personal jurisdiction and notice; they form
an inflection point in the parallel development of the two doc-
trines. Despite the evident relationship of personal jurisdiction and
notice in Hess and Milliken, the International Shoe Court took care to
segregate its discussion of notice from that of personal jurisdiction.
And Mullane took no note of International Shoe at all, despite the
shared doctrinal history and the presence of a personal jurisdiction
issue in that case. Having used notice to gently prod personal juris-
diction toward a place where courts could consider issues of fair-
ness and convenience, the Court used International Shoe and
Mullane as the occasion to begin the process of breaking apart the
shared space of these two doctrines.
119. Int’l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945).
120. Id. at 321 (“The activities which establish its ‘presence’ subject it alike to
taxation by the state and to suit to recover the tax.”).
122. See Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct.
1773 (2017); infra at notes 246-254 and accompanying text.
III.
THE SHIFTING AND FADING ROLE OF NOTICE IN
PERSONAL JURISDICTION FROM
INTERNATIONAL SHOE AND
MULLANE THROUGH ASAHI
In the decades after International Shoe, the Supreme Court em-
barked on its long (and still unfinished) project of defining the
constitutional limits on personal jurisdiction, a time marked by
bursts of judicial activity followed by long periods of silence on the
matter.123 The minimum contacts test occupied the central, but cer-
tainly not the only, space in the due process analysis. Along the way,
various theories rose and fell in prominence: the power and sover-
eignty theories;124 the respective interests of the defendant (in par-
ticular, the convenience interests of the defendant),125 the
plaintiff,126 and the forum state;127 and general notions of fair-
ness,128 the question of whether any or all of these considerations
form a part of the minimum contacts test or exist outside of it as an
additional constitutional check.129 Many of these ideas had already
begun to gain traction in the pre-International Shoe era, and some of
them even predated Pennoyer.
Today, the Supreme Court continues to grapple with all these
theories and clearly favors some more than others. But even the
disfavored theories and considerations are still part of the jurisdic-
123. The longest period of inactivity was the more than twenty-year gap be-
tween the Asahi and Burnham decisions of the late 1980s and early 1990s, and the
renewed interest in personal jurisdiction kicked off by J. McIntyre and Goodyear in
2011. See Bradt & Rave, supra note 73, at 1272.
124. See, e.g., Michigan Trust Co. v. Ferry, 228 U.S. 346, 353 (1913) (“Ordina-
rily jurisdiction over a person is based on the power of the sovereign asserting it to
seize that person and imprison him to await the sovereign’s pleasure.”).
125. See, Arthur Taylor von Mehran, Adjudicatory Jurisdiction: General Theories
Compared and Evaluated, 63 B.U.L. REV. 279, 306-10 (1983).
126. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
127. Int’l Commercial Dispute Comm. Assn of the Bar of N.Y.C., Lack of Juris-
diction and Forum Non Conveniens as Defenses to the Enforcement of Foreign
Arbitral Awards, 15 AM. REV. INT’L ARB. 407, 427 n.78 (2004) (“Convenience of the
forum may be, in some instances, a factor in determining whether the assertion of
jurisdiction comports with due process. See, e.g., Asahi Metal Industry Co. v. Supe-
rior Court, 480 U.S. 102 (1987).”).
128. von Mehran, supra note 125.
129. See, e.g., Simpson v. Quality Oil Co., 723 F. Supp. 382, 388 (S.D. Ind.
1989) (“I believe that the question of ‘relatedness’ must ultimately turn upon a
consideration of constitutional due process, and that the Constitution limits ‘relat-
edness’ to substantive relevance. Although ‘relatedness’ can be initially defined by
state statute (just as ‘minimum contacts’ are now defined in state long-arm stat-
utes), the Constitution is the final check on these state statutes.”).
tional discourse. Somehow, only notice has slipped away. This Sec-
tion traces the role of notice in personal jurisdiction analysis in the
post-International Shoe and Mullane era.
These two doctrines—personal jurisdiction and notice—had
always been intertwined, joined by the mechanical device of service
of process and a common due process constitutional ancestor in
Pennoyer, and Pennoyer’s conceptual forerunners. But things began
to change after International Shoe and Mullane. Courts encountering
personal jurisdiction questions had once turned routinely to the
fact and concept of notice, or lack thereof, to supplement their rea-
soning behind the grant or denial of personal jurisdiction. In the
decades after International Shoe and Mullane, notice was still used as
a doctrinal tool for jurisdictional innovation, but its role evolved
and ultimately faded.
As for the due process analysis related to notice itself, once the
Supreme Court set the constitutional floor for the sufficiency of no-
tice at the very liberal Mullane level, due process challenges to the
mechanics of service of process were rare,130 although the advent of
new technology and social media has generated some new ques-
tions about the constitutionality of service via electronic means.131
130. The Court has occasionally heard cases about service and actual notice.
See U.S. Aid Funds Inc. v. Espinosa, 559 U.S. 260 (2010) (defect in service was not a
basis upon which to void a bankruptcy court’s judgment because the party received
actual notice of the debtor’s plan and failed to object); Jones v. Flowers, 547 U.S.
220, 220 (2006) (while actual notice was not required, the State was required to
take additional steps when notice by certified mail returned unclaimed);
Dusenbery v. United States, 534 U.S. 161, 172–73 (2002) (actual notice to prisoner
in a forfeiture proceeding not required when process sent by certified mail); Men-
nonite Bd. of Missions v. Adams, 462 U.S. 791, 791 (1983) (publication, posting,
and mailed notice to the property owner are insufficient means of informing a
mortgagee of a tax sale); Robinson v. Hanrahan, 409 U.S. 38 (1972) (notice by
mail sent to home address of property owner insufficient in forfeiture proceeding
where State knew property owner was in jail); Walker v. City of Hutchinson, 352
U.S. 112 (1956) (notice by newspaper publication alone insufficient in condemna-
tion proceeding where city knew property owner’s name). These occasional forays
back into the due process requirements of service pale in comparison to the num-
ber and detail of personal jurisdiction cases that the Court has heard since Interna-
tional Shoe. Instead these cases center primarily around statutory, rule, and treaty
interpretation.
131. See, e.g., Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1017 (9th Cir.
2002) (authorizing service of proves by email); MEMO ENDORSED ORFER grant-
ing 419 Motion to Serve Wikileaks by Twitter & Mail on 148 NOTICE of Motion.
Democratic National Committee v. Russian Fed’n, No. 18-cv-3501-JGK) (S.D.N.Y.
June 21, 2018),(granting motion to serve Wikileaks by Twitter); FTC v. PCCare247
Inc., 2013 U.S. Dist. LEXIS 31969, at *16–17 (S.D.N.Y. Mar. 7, 2013) (authorizing
service by email and Facebook); Qaza v. Alshalabi, 43 N.Y.S.3d 713, 716 (Sup. Ct.
2016) (“[P]laintiff has not demonstrated that, under the facts presented
The locus of due process notice doctrine shifted to questions of

which proceedings required notice at all132 and what sort of a pro-
ceeding would satisfy the requirement of the “opportunity to be
heard.”133
A. Early Jurisdictional Expansion in Perkins and McGee: Continued

Use of Notice as a Fairness and Due Process Crutch
In the first years after International Shoe, the Court issued two
expansive personal jurisdiction decisions. In each case, the Court’s
use of notice echoed the reasoning in key pre-International Shoe de-
cisions. The fact of actual notice allowed the Court to create a cush-
ion of fairness and a reassurance of due process that aided
jurisdictional innovation.
The Court’s first major move after International Shoe was to lay a
capacious foundation for the exercise of general jurisdiction. In Per-
kins v. Benguet Consolidated Mining Company 134 the Court had to jus-
here, service by Facebook is reasonably calculated to apprise defendant of the mat-

rimonial action.”); St. Francis Assisi v. Kuwait Fin. House, No. 17-cv-07203-PJH,
2016 U.S. Dist. LEXIS 136152 (N.D.Cal.) (authorizing service by Twitter to Kuwaiti
national when plaintiff unable to determine his location).
132. See, e.g., Kaley v. United States, 571 U.S. 320 (2014) (notice not required
for pre-trial restraining orders to preserve potentially forfeitable assets in criminal
proceedings); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (“[A] citizen-detainee seek-
ing to challenge his classification as an enemy combatant must receive notice of
the factual basis for his classification, and a fair opportunity to rebut the Govern-
ment’s factual assertions before a neutral decisionmaker.”); United States v. James
Daniel Good Real Prop., 510 U.S. 43 (1993) (“[T]he seizure of real property under
§ 881(a)(7) is not one of those extraordinary instances that justify the postpone-
ment of notice and hearing. Unless exigent circumstances are present, the Due
Process Clause requires the Government to afford notice and a meaningful oppor-
tunity to be heard before seizing real property subject to civil forfeiture.”); Ma-
thews v. Eldridge, 424 U.S. 319 (1976) (“[A]n evidentiary hearing [and, therefore,
notice] is not required prior to the termination of [Social Security] disability
benefits.”).
133. See, e.g., Connecticut v. Doehr, 501 U.S. 1 (1991) (procedure that al-
lowed prejudgment attachment of real property without notice, hearing, or show-
ing of extraordinary circumstances violates due process); N. Ga. Finishing, Inc. v.
Di-Chem, Inc., 419 U.S. 601 (1975) (finding Georgia procedure that allowed plain-
tiffs to secure a garnishment from a court clerk without involvement of a judge or
an early hearing unconstitutional under the Fourteenth Amendment); Fuentes v.
Shevin, 407 U.S. 67 (1972) (holding Florida and Pennsylvania prejudgment re-
plevin provisions as violating due process “insofar as they deny the right to a prior
opportunity to be heard before chattels are taken from their possessor.”); Snia-
dach v. Family Fin. Corp. of Bay View, 395 U.S. 337, 339–40 (1969) (“[A]bsent
notice and a prior hearing, this prejudgment garnishment procedure violates the
fundamental principles of due process.”) (internal citations omitted).
134. 342 U.S. 437 (1952).
tify Ohio’s exercise of personal jurisdiction over a Filipino

corporation for a lawsuit that was unrelated to any of its activities in
Ohio.135 The Court held that Benguet’s Ohio activities were suffi-
ciently substantial in nature so as to constitute the sort of minimum
contacts that could serve as the fictive “presence” contemplated in
International Shoe.136 Perkins was such a large factual and doctrinal
leap that it has been largely criticized by later jurists and commenta-
tors, and courts have narrowed its holding by limiting the decision
to its somewhat unique facts.137 But the decision remains relevant
for our story because of the prominence of notice in the Court’s
analysis.
Like International Shoe and Milliken before it, the Perkins Court
used the language of fairness to justify its decision. Echoing these
earlier cases, the Court folded discussions of notice and service of
process into its appeal to principles of fairness. The Court even
characterized the question presented as “whether the state courts of
Ohio are open to a proceeding in personam against an amply notified
foreign corporation.”138 While much of the fairness analysis con-
cerned Benguet’s contacts with Ohio,139 the Court found “no un-
fairness” where the corporation was carrying on such “activities
appropriate to accepting service or receiving notice on [the corpora-
tion’s] behalf.”140 Moreover, the Court criticized the Ohio Supreme
135. Id. at 438 (holding that a Philippines corporation could be sued in per-
sonam in Ohio for suit that “did not arise in Ohio and [did] not relate to the
corporation’s activities there.”).
136. Id. at 447–48.
137. See BNSF Ry. v. Tyrrell, 137 S. Ct. 1549, 1561–62 (2017) (Sotomayor, J.,
concurring in judgment); L. D. Reeder Contractors v. Higgins Indus., Inc., 265
F.2d 768, 775 (9th Cir. 1959) (“We realize that [Perkins] is authority for the theory
that the cause of action need not arise out of the activity of the nonresident within
the forum state. But this was an earlier case than either McGee or Hanson, and
rests upon its own peculiar facts.”). Note, however, that Perkins is commonly in-
voked by commentators and even courts seeing to promote jurisdictional expan-
sion. See, e.g., Taylor Simpson-Wood, In the Aftermath of Goodyear Dunlop: Oyez! Oyez!
Oyez! A Call for a Hybrid Approach to Personal Jurisdiction in International Products Lia-
bility Controversies, 64 BAYLOR L. REV. 113, 156 (2012) (“[I]t can be hoped that
somewhere in the future, a majority of the Court will, at a minimum, recognize a
more expansive view of general jurisdiction than that of Perkins.”).
138. 342 U.S. at 440 (emphasis added).
139. Id. at 447–48.
140. Id. at 445 (emphasis added). The Court also explicitly rejected the idea
that the defendant could make a specific due process challenge based on a lack of
notice, noting that “[a]ctual notice of the proceeding was given to the corpora-
tion . . . through regular summons upon its president while he was in Ohio acting
in that capacity. Accordingly, there can be no jurisdictional objection based on a
lack of notice to a responsible representative of the corporation.” Id. at 439–40.
Court for relying on two older U.S. Supreme Court cases that, aside
from predating International Shoe, were instances in which “no ac-
tual notice of the proceedings was received” by the foreign corpora-
tion or its representative.141 Notice was a due process link that
provided continuity between pre- and post-International Shoe cases.
Where notice once bolstered expansive claims about a corpora-
tion’s literal presence in the forum state, it could now be deployed
to rationalize the fairness of corporate contacts with the forum
state.
The Supreme Court also addressed specific jurisdiction during
this period in McGee v. International Life Insurance Company.142
There, the Court held that a single contact with a forum state could
be enough to support personal jurisdiction in a lawsuit arising from
that contact.143 The Court grounded its jurisdictional expansion by
echoing International Shoe’s appeals to changes in the nationalizing
economy144 but also with appeals to fairness that loosely accounted
for the interests and conveniences of the plaintiff, the defendant,
and the forum state.145 The Court punctuated its assessment of the
fairness of exercising jurisdiction on the basis of a single contact by
observing that “[t]here is no contention that respondent did not
have adequate notice of the suit or sufficient time to prepare its de-
fenses and appear.”146
There is a subtle difference in how the Court used notice in
McGee compared with Perkins. The Perkins Court assessed the activi-
ties of the corporate defendant and drew a direct link between the
fact that these activities were minimum contacts that mimicked the
older need to establish territorial jurisdiction through presence in
the forum, and the fact that some of these activities specifically ena-
bled service and ensured notice. The McGee Court’s treatment of
notice is more ambiguous. It is possible to read the Court’s sen-
tence about notice as a cursory, pro forma statement that is ap-
141. Id. at 443–44.

142. 355 U.S. 220 (1957).
143. Id. at 221 (upholding a California long-arm statute that “subject[ed] for-
eign corporations to suit in California on insurance contracts with residents of that
State.”). See also Rhodes, supra note 19, at 196.
144. Id. at 222 (focusing primarily on the insurer’s tight connections to the
insured in California which it portrayed as a feature of the “fundamental transfor-
mation of our national economy over the years.”).
145. Id. at 224 (plaintiffs might be “at a severe disadvantage if they were
forced to follow the insurance company to a distant State,” whereas the burden to
the defendant might be an “inconvenience . . . but certainly nothing which
amounts to a denial of due process.”).
146. Id. at 224 (emphasis added).
pended to a discussion about personal jurisdiction, which is

another topic entirely. The Court simply meant to dispense with
any lingering questions that there might be other due process objec-
tions in the case outside of the jurisdictional challenge. On the
other hand, the Court does little to signal that concerns about no-
tice must be limited to separate and formal challenges to a due pro-
cess notice deficiency. The observation about notice is part of the
core paragraph in which the Court described due process limita-
tions on personal jurisdiction. Given the history of connecting the
fairness or even “natural justice” entitlements of notice and oppor-
tunity to be heard to personal jurisdiction, Justice Black might have
assumed that readers would expect a nod to notice within personal
jurisdiction even though litigants could make a separate challenge
to a failure of notice. This would be no different than his emphasis
on convenience despite the existence of separate judicial doctrines
and remedies for inconveniently located adjudication.147
Curiously, the McGee sentence about notice is the only sen-
tence in the due process paragraph that does not have a citation.
Had the Court wanted to delineate notice as a separate due process
doctrine or challenge to be made in a case like McGee, Justice Black
might have punctuated this sentence with a cite such as “cf. Mul-
lane,” reinforcing the idea that notice now had its own due process
life aside and apart from personal jurisdiction. But the Court’s
statement about notice is the only sentence in the paragraph un-
supported by any authority. While it is possible that this was a delib-
erate attempt to obscure the relationship of personal jurisdiction
and notice within due process, the more likely explanation is that it
is indicative of the justices’ own muddled thinking about the two.
As we have seen, the formal detachment of notice from personal
jurisdiction in Mullane was not inevitable, nor was it entirely clear
that a formal separation was what the Court meant to achieve in the
International Shoe and Mullane sequence.148
The McGee Court did not center or emphasize notice to the
same extent that the Perkins Court did, but the McGee opinion dem-
onstrates some discomfort with the idea of jurisdictional innovation
unsupported by an affirmative showing of notice and opportunity
to be heard. Perkins and McGee together suggest that, although Inter-
national Shoe and Mullane signaled a shift toward a new framework
for evaluating the due process merits of personal jurisdiction and
147. See Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. REV.
390, 429 (2017) (suggesting that forum non conveniens is redundant with several
existing doctrines including personal jurisdiction).
notice, the Court still considered notice to be a relevant touchstone

of due process as it applied to personal jurisdiction.
B. From Notice of Suit to Notice of Jurisdiction: Transforming Notice

from a Tool of Jurisdictional Expansion to a Tool
of Due Process Expansion
Just one year after McGee, the Supreme Court began a slow
shift in its use, and ultimately its disregard, of notice in personal
jurisdiction cases. In the following decades, the Supreme Court
took two concepts of notice, notice of suit and notice of jurisdic-
tion, and separated them for doctrinal and analytic purposes. Prior
to International Shoe, these concepts were merged because of the
strict requirements of territoriality and in-hand service. But after
the Court replaced the Pennoyer regime with minimum contacts in
International Shoe and relaxed the constitutional requirements for
notice in Mullane, notice of jurisdiction emerged as a problem. If a
mélange of activities could subject an out-of-state defendant to juris-
diction in the forum state, and that defendant could be served by
substituted service, how could these defendants assure themselves
that they would or would not be subject to the jurisdiction of the
forum state? And did such notice of jurisdiction matter? The an-
swer that the Court would consistently give over the next half cen-
tury was yes. Notice of jurisdiction is a constitutionally relevant
concept, and the farther that personal jurisdiction analysis pulled
away from the more traditional Fourteenth Amendment concept of
notice of suit, the tighter the Court would cling to the importance
of notice of jurisdiction. This shift was neither doctrinally consis-
tent nor unproblematic, as the exploration of the following cases
will show.
The Court first signaled this shift in Hanson v. Denckla,149 in
which it held that a Florida court could not exercise personal juris-
diction over a Delaware bank.150 The Court took care to sever the
issue of notice from personal jurisdiction, beginning its analysis by
setting the issue of notice aside entirely, noting that “[t]here is no
suggestion that the [Florida] court failed to employ a means of no-
tice reasonably calculated to inform nonresident defendants of the
pending proceedings, or denied them an opportunity to be heard
in defense of their interests.”151 By fronting the issue in a curt and
149. 357 U.S. 235 (1958).

150. Id. at 253–54 (holding that the Florida court did not have jurisdiction
over the Delaware bank because the only contacts that the bank had with Florida
were due to the unilateral actions of a third party (the settlor of the trust)).
151. Id. at 245.
cursory manner, Chief Justice Warren severed it from the analysis

that would affect its view of jurisdiction. Contrast this with the ap-
proach from McGee where the observation about notice at the end
of the personal jurisdiction discussion tied notice to the Court’s
holding and offered a reassurance of due process fairness and rea-
sonability. Here, the up-front and summary dismissal of the notice
issue signaled the Court’s desire to turn to the “real” business of
personal jurisdiction. This difference in approach from Perkins and
McGee was not necessarily a new phenomenon. As I documented in
Part I, courts in the pre-International Shoe era often treated notice as
integral to personal jurisdiction analysis, but sometimes analyzed or
mentioned it as a separate doctrine.152 In this regard, the Court’s
rhetorical choice is not surprising. Since the Court held that the
Florida court did not have personal jurisdiction, the Court’s juris-
dictional innovations in Hanson were not expansionist. The Court
did not need to highlight the fact of notice to underscore fairness
to the defendant or a solid foundation of due process. Instead, it
needed to segregate notice as a due process issue which, when satis-
fied, did not preclude a separate finding of a personal jurisdiction
due process violation.
Chief Justice Warren’s citations confirm this rhetorical stroke.
He cited Mullane along with two other cases to support his assertion
that notice met due process standards, whereas Justice Black’s Mc-
Gee made no such citation.153 Justice Black, for his part, dissented in
Hanson, noting in his argument in favor of the Florida court’s juris-
diction that the bank “had timely notice of the suit and an adequate
opportunity to . . . appear.” This statement had some of the same
ambiguity that I noted in McGee; it is unclear whether this statement
was tied to his subsequent discussion of fairness, convenience, and
litigant and forum state interest, or if it was a prefatory comment
meant to clear the way for the “real” personal jurisdiction analy-
sis.154 Thus the majority opinion and arguably the dissent in Hanson
demonstrated the Court’s movement towards a firmer delineation
of due process notice from due process personal jurisdiction.
Hanson also contained the seeds of another transformation—
the shift from emphasizing notice as a consideration linked to ser-
vice of process and notification of the actual proceeding, to notice
152. See supra Part I.C. Sometimes notice was invoked to support a jurisdic-
tional holding, sometimes it was treated as a separate issue, sometimes it was not
mentioned at all.
153. 357 U.S. at 258 (Black, J., dissenting).
154. Interestingly, Justice Black cites Mullane here, but for its personal juris-
diction holding, and not for notice. Id. at 260–61.
as a more abstract idea of foreseeability. Hanson famously intro-

duced the idea that unilateral activity by the plaintiff could not cre-
ate contacts in the forum state which would be imputed to the
defendant.155 Justice Warren’s discussion of unilateral activity in
Hanson was not tied to notice or foreseeability, but to the idea that
the defendant had not “purposefully availed” itself of the forum.156
In the coming years, the Court would combine the new idea of pur-
poseful availment with the older idea of notice to create a new and
controversial factor in personal jurisdiction analysis: foreseeability,
which would toggle between foreseeability of effect or harm, and
foreseeability of jurisdiction.
An early case to presage this move came not from the U.S. Su-
preme Court, but from the Illinois Supreme Court in Gray v. Ameri-
can Radiator & Sanitary Corp. 157 The opinion followed in the Hanson
model of formalizing different due process “tracks” for personal ju-
risdiction and notice. It delineated two questions, “first, whether
[the defendant] has certain minimum contacts with the State . . .
and second, whether there has been a reasonable method of notifi-
cation,”158 citing International Shoe separately for each of those pro-
positions. The court made the perfunctory observation that the
Illinois long-arm statute made adequate provisions for notice and
that the plaintiff followed these provisions. Thus, the “real” work to
be done was in assessing whether the defendant had minimum con-
tacts with the state to justify the exercise of jurisdiction.159
Justice Klingbiel reiterated the division of the two due process
doctrines by opining that “the trend in defining due process of law
is away from the emphasis on territorial limitations and toward em-
phasis on providing adequate notice and opportunity to be heard:
from the court with immediate power over the defendant, toward
the court in which both parties can most conveniently settle their
dispute.”160 In this view, the trajectory of due process jurisprudence
was one in which rigid rules of territoriality and forms of service
had given way to standards of reasonableness or fairness for both
155. Hanson, 357 U.S. at 253.

156. Id.
157. 176 N.E.2d 761 (Ill. 1961) (Illinois State Supreme Court case that en-
tered the modern personal jurisdiction canon because of its early and formative
treatment of the idea that a product manufactured or sold outside of the forum
state and put in the “stream of commerce” could serve as a sufficient minimum
contact).
158. Id. at 763.
159. Id.
160. Id. (citing Smyth v. Twin State Improvement Corp., 80 A.2d 664 (Vt.
1951)).
personal jurisdiction and notice, and these standards operated in-

dependently and should be separately evaluated. Whereas earlier
courts, such as the Hess and Milliken courts, had grounded the fair-
ness of expanding jurisdiction at least in part on the fact of reasona-
ble notice, courts pioneering the Gray model treated notice as a
necessary co-requisite for due process, and emphasized how a man-
ufacturer of a product sold in the forum has purposefully availed
itself of that state. While Justice Klingbiel stopped short of using the
term “foreseeable,” the stream-of-commerce groundwork had been
laid and the due process division of notice and personal jurisdiction
was further entrenched.
The Supreme Court echoed this bifurcated structure in World-
Wide Volkswagen v. Woodson,161 with its holding that “due process re-
quires that the defendant be given adequate notice of the suit, and
be subject to the personal jurisdiction of the court.” The Court
quickly set aside notice because it was “not contended that notice
was inadequate; the only question is whether these particular peti-
tioners were subject to the jurisdiction of the Oklahoma courts.”162
But where the Illinois Supreme Court cited International Shoe for
both notice and personal jurisdiction, Justice White cited Mullane
for notice and International Shoe for personal jurisdiction, further
cementing the separate due process tracks for each. World-Wide Volk-
swagen is the Court’s first major introduction of foreseeability into
the mélange of personal jurisdiction due process factors. The Court
took care to distinguish two types of foreseeability. “[T]he foresee-
ability that is critical to due process analysis is not the mere likelihood
that a product will find its way into the forum State. Rather, it is that
the defendant’s conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court
there.”163
161. 444 U.S. 286 (1980). The Court had also used the bifurcated structure
two years earlier in Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978)
(“the presence of reasonable notice to the defendant that an action has been
brought” and minimum contacts that ensure that it would be “fair to require de-
fense of the action in the forum.”). The balance of Kulko examined personal juris-
diction from several angles: the nature of the contacts that the defendant had with
California, fairness, reasonableness, the relevance of the interests of the plaintiff
and defendant, and the interests of the forum. While the Court discussed whether
the defendant could foresee that his actions would have consequences in the fo-
rum state, it notably omitted a discussion of whether the defendant could have
foreseen jurisdiction itself.
162. Id. at 291.
163. Id. (emphasis added).
The real innovation in World-Wide Volkswagen was to harness

the older doctrines of notice and purposeful availment to create
the malleable and controversial personal jurisdiction factor of fore-
seeability of jurisdiction. Instead of pointing to the adequacy of no-
tice of the pendency of the action at hand, the Court addressed a
different sort of notice, notice of jurisdiction:
When a corporation ‘purposefully avails itself of the privilege
of conducting activities within the forum State,’ it has clear no-
tice that it is subject to suit there, and can act to alleviate the
risk of burdensome litigation by procuring insurance, passing
the expected costs on to customers, or, if the risks are too
great, severing its connection with the State.164
The Court did not deploy the word “notice” here by accident.
It reflects the longer tradition, outlined earlier, of using notice as a
factor in the due process analysis of personal jurisdiction and that
notice of jurisdiction had always been an implicit part of notice of
suit because of the doctrinal and historical tie to personal jurisdic-
tion via due process.
World-Wide Volkswagen’s introduction of notice of jurisdiction
has been roundly (and rightly) criticized as an amorphous and cir-
cular standard.165 Its status among the other personal jurisdiction
factors is still unsettled as a matter of Supreme Court jurispru-
dence. Notice of jurisdiction also featured prominently in the later
“stream of commerce” cases. Several years after World-Wide Volk-
swagen, the Supreme Court issued its split plurality decision in Asahi
164. Id. at 297 (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
165. Id. at 311 n.18 (Brennan, J. dissenting). See Borchers, supra note 8 at 94
(“the ‘jurisdictional surprise’ argument is circular. Any expectation that the defen-
dant has of avoiding an out-of-state court is a function of the jurisdictional rules
themselves”); Lea Brilmayer & Matthew Smith, The (Theoretical) Future of Personal
Jurisdiction: Issues Left Open By Goodyear Dunlop Tires v. Brown and J. McIntyre
Machinery v. Nicastro, 63 S.C. L. REV. 617, 623 (2012) (“[T]he problem with ex-
pectations is that it has too little semantic content and uniformly results in circular-
ity.”); Allan Erbsen, Personal Jurisdiction Based on the Local Effects of Intentional
Misconduct, 57 WM. & MARY L. REV. 385, 430 (2015) (“the anticipation test is circu-
lar”); Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical
Evaluation, 75 NW. U. L. REV. 1112, 1134 (1981) (“in a sense, such an argument is
circular, since a potential defendant can only have such an expectation because
the law so provides.”); Stein, supra note 8 at 701 (“expectation is defined largely by
the courts’ ruling on the subject” and “is therefore circular”). But see Linda Sand-
strom Simard, Hybrid Personal Jurisdiction: It’s Not General Jurisdiction, or Specific Juris-
diction, but Is It Constitutional?, 48 CASE W. RES. L. REV. 559, 589–90 (1998)
(addressing the circularity problem by distinguishing legal consequences and fac-
tual consequences of defendants’ actions).
Metal Industries v. Superior Court.166 The question in Asahi was

whether a California court could assert personal jurisdiction over a
Japanese manufacturer of tire valves that it sold to a Taiwanese tire
manufacturer, who in turn sold its tires world-wide. The plaintiff
sued both manufacturers over a motorcycle accident in California,
alleging defects in the tire and valves.167 The Justices were unani-
mous in the judgment: California did not have personal jurisdiction
over Asahi, but they split sharply over the reasoning. Justice Bren-
nan argued that Asahi did have minimum contacts with California,
but that it would be unreasonable as a matter of due process to
exercise jurisdiction over the company.168 Justice O’Connor led a
four-justice plurality and argued that Asahi did not have the requi-
site minimum contacts with California.169 These two positions have
come to be known as the “stream of commerce” and “stream of
commerce plus” theories, respectively. Although the Court has, as
of late, indicated a preference for the “stream of commerce plus”
theory,170 the question of which test applies remains open.171 Nota-
ble for our purposes is the extent to which the justices agreed on
the role of foreseeability of jurisdiction.
Justice Brennan’s stream of commerce theory rested, in part,
on his belief that litigation in California would be foreseeable to a
manufacturer whose products arrive in a forum state as part of the
166. 480 U.S. 102 (1987).

167. Id. at 107–08.
168. Id. at 119–20.
169. Id. at 116. For extensive commentary on the Asahi opinion and stream
of commerce, see Todd David Peterson, The Timing of Minimum Contacts After Good-
year and McIntyre, 80 GEO. WASH. L. REV. 202, 207–28 (2011); Allan Ides & Simona
Grossi, The Purposeful Availment Trap, 7 FED. CTS. L. REV. 113, 118–19 (2014); Ar-
thur R. Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits:
Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. REV. 286, 348–49
(2013); Alan M. Trammell, A Tale of Two Jurisdictions, 68 VAND. L. REV. 501, 522
(2015).
170. See J. McIntyre Machinery Ltd. v. Nicastro, 564 U.S. 873, 883 (2011).
171. Roger W. Hughes, Personal Jurisdiction: Selected Current Issues, 80 THE AD-
VOC. (TEX.) 63, 67 (2017) (discussing the “unresolved stream-of-commerce dis-
pute” and different jurisdictions’ varying approaches); Patrick J. Borchers, How
“International” Should a Third Conflicts Restatement be in Tort and Contract?, 27 DUKE J.
COMP. & INT’L L. 461, 467 (2017) (“After Asahi, predictable confusion reigned
among lower courts as to which version of the stream-of-commerce test to apply -
Justice O’Connor’s or Justice Brennan’s. Courts divided as to which to follow, and
others hedged their bets by concluding that the result would be the same under
either test.”); Howard M. Wasserman, The Roberts Court and the Civil Procedure Revi-
val, 31 REV. LITIG. 313, 325 (2012) (“[A]fter waiting twenty years to hear a personal
jurisdiction case and taking a case that squarely presented the stream-stream-plus
divide, the Court still left the issue unresolved.”).
“regular and anticipated flow of products.”172 In these circum-

stances, “[a]s long as a participant in this process is aware that the
final product is being marketed in the forum State, the possibility of
a lawsuit there cannot come as a surprise.”173 To support this posi-
tion, Brennan quoted extensively from World-Wide Volkswagen and
Gray. For Brennan, the foreseeability of the results of the stream of
commerce were sufficient to put the defendant on notice that it
might be sued in the forum. Brennan viewed foreseeability of law-
suits in the forum state as a due process matter, a position he had
already stated in Burger King v. Rudzewicz.174 But while Brennan’s
Asahi opinion stressed that this sort of foreseeability can count as a
minimum contact per International Shoe, he was adamant that other
due process considerations such as convenience, burdens to the de-
fendant, and the relative interests of the plaintiff and the forum
state can override minimum contacts and provide an alternative
due process barrier to the exercise of jurisdiction.175
Justice O’Connor disagreed with Brennan, contending that
products placed in the stream of commerce cannot alone constitute
a minimum contact, in part, because the stream of commerce itself
is insufficient as a mechanism for predicting the possibility of a law-
suit in the forum. The “stream of commerce plus” approach re-
quires that the defendant engage in other activities that
demonstrate that it was targeting the state. The emphasis on pur-
poseful availment goes far beyond notice of potential lawsuits. Pur-
poseful engagement with the forum meshes well with notions of
consent, reciprocity, and even territoriality and sovereignty.176 But
notice undoubtedly motivated O’Connor’s formulation of stream of
commerce plus. She favorably cites the World-Wide Volkswagen and
Hanson notice of jurisdiction language, that purposeful availment is
172. 480 U.S. at 117.

173. Id. (emphasis added).
174. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (“By requiring
that individuals have fair warning that a particular activity may subject (them) to
the jurisdiction of a foreign sovereign, the Due Process Clause gives a degree of
predictability to the legal system that allows potential defendants to structure their
primary conduct with some minimum assurance as to where that conduct will and
will not render them liable to suit.”).
175. Asahi, 480 U.S. at 116-21 (Brennan, J., concurring in part).
176. See William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116
MICH. L. REV. 1205 (2018); Robin J. Effron, Solving the Nonresident Alien Due Process
Paradox in Personal Jurisdiction, 116 MICH. L. REV. ONLINE 123 (2018); Austen L.
Parrish, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident Alien Defend-
ants, 41 WAKE FOREST L. REV. 1 (2006).
evidence that the defendant “‘has clear notice that it is subject to

suit there.’”177
In other words, Brennan and O’Connor disagreed on a num-
ber of issues, including whether placing an article in the stream of
commerce is sufficient to constructively notify the defendant of pos-
sible jurisdiction. But what is clear is that by the time Asahi was de-
cided, all the Justices were operating under the assumption that
one of the functions of minimum contacts was to provide construc-
tive notice of jurisdiction to defendants. In other words, if mini-
mum contacts were to serve as a workable framework, it had to do
more than act as a modern substitute for physical presence in the
forum state. It also had to provide the notice of jurisdiction that
had always been implicit in the pre-International Shoe understanding
of service of process and personal jurisdiction. The Justices simply
disagreed about what sort of conduct could be reasonably under-
stood to provide such advanced warning. As we shall see, this as-
sumption would not last. By the time the Court heard J. McIntyre v.
Nicastro, Justice Kennedy would opine that “foreseeability is incon-
sistent with the premises of lawful judicial power. This Court’s
precedents make clear that it is the defendant’s actions, not his ex-
pectations, that empower a State’s courts to subject him to
judgment.”178
A few years after World-Wide Volkswagen, the Supreme Court
used notice of jurisdiction to support personal jurisdiction over de-
fendants in two intentional tort cases, Calder v. Jones 179 and Keeton v.
Hustler.180 In Calder, the writer and the editor of the National En-
quirer, both Florida residents, had only sporadic contacts with the
state of California where the plaintiff filed her lawsuit. However,
the Court upheld personal jurisdiction on the basis that the defend-
ants’ “intentional, and allegedly tortious, actions were expressly
aimed at California.”181 Such purposeful conduct, combined with
the defendants’ knowledge that the plaintiff lived in California
where the paper had a large circulation, led the Court to conclude
that the defendants “must ‘reasonably anticipate being haled into
court [in California]’ to answer for the truth of the statements
177. Asahi, 480 U.S. at 110 (citing Hanson v. Denckla, 357 U.S. 235, 297
(1958)).
178. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883 (2011).
179. 465 U.S. 783 (1984).
180. 465 U.S. 770 (1984).
181. Calder, 465 U.S. at 789.
made in their article.”182 In Keeton, the defendant was the maga-

zine itself. Although the plaintiff had no connection to the forum
state, the Court held that when the defendant “has continuously
and deliberately exploited the New Hampshire market, it must rea-
sonably anticipate being haled into court there in a libel action
based on the contents of its magazine.”183 Neither Calder nor Keeton
mentioned notice of suit specifically, and the foreseeability point is
more of a perfunctory observation rather than the key compelling
factor driving the Court toward jurisdictional expansion. Compar-
ing this to the more detailed (if also more circular and confusing)
arguments in World-Wide Volkswagen and other stream of commerce
cases, it appears that the Court was more interested in notice of
jurisdiction discourse as a method of pressing forward due process
expansion rather than jurisdictional expansion.
During the era of World-Wide Volkswagen and Asahi, the concept
of notice of jurisdiction exerted a powerful influence over the due
process analysis of personal jurisdiction. These cases, with their va-
rying deployment of “foreseeability” show a refashioned attentive-
ness to the due process consequences of notice; notice of
jurisdiction had become a “New Notice” doctrine for the post-Inter-
national Shoe and Mullane era. By the time of World-Wide Volkswagen
and subsequent cases, notice of suit was relatively easy to establish.
Particularly with the advent of a more connected society and better
modes of communications, giving actual, or even constructive, no-
tice of a lawsuit just was not that difficult.
The relative ease of executing notice of suit provided the Court
with a soothing due process cushion from which it expanded the
reach of constitutionally permissible personal jurisdiction in the
first half of the twentieth century. Halting the growth of personal
jurisdiction, however, required an expansion of due process. No-
tice, in the form of notice of suit, had served as a useful due process
hook throughout the early growth of constitutional personal juris-
diction doctrine. It was only natural that the Court would again rely
on notice, this time in the form of notice of jurisdiction, as a tool
for doctrinal expansion, but this time, expanding due process as a
means of restricting personal jurisdiction.
This “new notice” was complex; a vague, circular standard with
ever-changing goal posts of which contacts would suffice as “pur-
poseful availment.” It provided the Court with a useful barrier to
182. Id. at 790 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980)).
183. Keeton, 465 U.S. at 781 (citing World-Wide Volkswagen Corp., 444 U.S. at
297–98).
the exercise or expansion of state jurisdictional power. By linking

purposeful availment and notice, the Court could maintain the con-
nection between personal jurisdiction and an intuitive due process
value—the personal liberty interest in receiving notice of a lawsuit.
Shifting the locus of notice from the pendency of an extant suit to
notice of jurisdiction ensured continuity of due process values in a
doctrine that began its life on shaky due process grounds and was
becoming increasingly distant from due process.
Notice of jurisdiction also differed significantly from notice of
suit in that it made passive what had once been active. Notice of suit
involved concrete delivery methods that the forum state and the
plaintiff could together accomplish to perfect notice. The state was
responsible for promulgating long-arm statutes with prescribed
methods of personal or substituted service. These would be consti-
tutional so long as they were designed to apprise the defendants of
the pendency of the action. Plaintiffs were tasked with actually serv-
ing (or attempting to serve) the defendants pursuant to that stat-
ute. So long as the state rules were reasonably calculated under the
circumstances to apprise defendants of the action and so long as
the plaintiff followed those rules, courts were more or less comfort-
able with assuming that the due process requirements of notice
under Mullane had been met. Generalized worries that defendants
would not learn of lawsuits had long faded from the judicial hori-
zon, punctuated only by isolated instances of problematic service of
process on idiosyncratically situated parties.184 In other words, no-
tice of suit provided states and plaintiffs with relatively concrete
rules and steps that could be taken to ensure that a lawsuit would
not interfere with a defendant’s due process liberty interest, and
this supported the Court’s earlier intuition that state jurisdictional
power could be expanded beyond Pennoyer’s rigid confines.
It is not surprising, then, that the due process tool the Court
had once used to expand personal jurisdiction could be refash-
184. See, e.g., Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) (requiring no-
tice when amending judgment to simultaneously add a third party defendant not
previously named in lawsuit); Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694
(1988) (reviewing the applicability of the Hague Service Convention to service of
process on a foreign corporation’s domestic subsidiary); Eisen v. Carlisle & Jacque-
lin, 417 U.S. 156 (1974) (considering notice requirements for absent class mem-
bers in a Rule 23(b)(3) class action suit). But see Adrian Gottshall, Solving Sewer
Service: Fighting Fraud with Technology, 70 ARK. L. REV. 813, 816 (2018) (“Unreliable
and unfair service practices are a national problem.”). As noted earlier, the bulk
of constitutional notice doctrine shifted to the question of what sort of proceed-
ings trigger a notice requirement at all, and what sort of hearing or process satis-
fies the constitutional requirement. See supra notes 132-133.
ioned into a limiting device. Notice of suit was, in a sense, too easy
to satisfy. Since nearly every plaintiff with reasonable diligence and
the right resources could meet the basic requirements, it no longer
did enough “work” in the personal jurisdiction calculus. Problems
with notice of suit no longer looked like jurisdictional issues, but as
separate problems to be solved with reference to Mullane and per-
haps interpretation of a state or federal statute.
But notice of jurisdiction was different. It clothed minimum
contacts in familiar language that had a much more intuitive con-
nection to a litigant’s personal liberty due process interest. And
since notice of jurisdiction was conveniently circular, it was always
up for redefinition by reference to other jurisdictional values, none
of which had a particularly compelling connection to due process.
This had consequences for both jurisdictional expansionists and ju-
risdictional contractionists. Jurisdictional expansionists advocated
for a frank recognition that foreseeability was not about notice and
advocated for its use as a broad, independently justified concept
that concerned minimum contacts by the defendant with the forum
state and the concomitant justification of the exercise of state
power. Jurisdictional contractionists used notice of jurisdiction
foreseeability as a bridge between old notice and purposeful avail-
ment to create the “stream of commerce plus” test.
C. A New Use for Notice in a New World of

In Rem Jurisdictional Problems
Shaffer v. Heitner 185 was the first in rem jurisdictional case post-
International Shoe. The Court used this occasion to hold that the
Fourteenth Amendment applied to a much larger universe of cases
than had been previously considered. Shaffer was a shareholder de-
rivative action against Greyhound, a Delaware corporation, and sev-
eral of its directors and officers. The plaintiff filed the lawsuit in
Delaware where it seemed unlikely that the court would have in
personam jurisdiction over 21 of the directors and officers. The
plaintiff used Delaware’s sequestration statute to seize the defend-
ants’ property—stock in the Greyhound corporation, the situs of
which was Delaware, as a basis for quasi in rem jurisdiction.186 The
lower courts had been operating under the assumption that under
Pennoyer, a forum state had power over all property within its bor-
ders, rendering a due process minimum contacts inquiry irrelevant
185. 433 U.S. 186 (1977).

186. Id. at 190–91.
to this exercise of jurisdiction.187 The Supreme Court reversed,

holding that the due process clause applies to exercises of in rem
jurisdiction. Thus, post-Shaffer, out-of-state defendants must have
the requisite minimum contacts with the forum state, regardless of
whether the jurisdictional predicate is in personam or in rem.
Extending the minimum contacts test to the in rem jurisdiction
cases required some significant justification by the Court, including
a detailed effort to explain that the Shaffer decision would, in prac-
tice, only change the outcome in a small number of cases, primarily
involving intangible property whose situs in a forum was dictated by
statute.188 Justice Marshall noted Pennoyer’s focus on notice, but ar-
gued that this was clearly subordinate to the concerns for state
power and sovereignty. While the Court could question the suffi-
ciency of notice within a state’s borders, and seizure of property was
considered adequate in most cases,189 due process in terms of no-
tice of suit was simply irrelevant to in rem jurisdiction when the
property owner was outside of the state.190 Justice Marshall did not
discuss the role of notice as a due process vehicle for advancing
jurisdictional expansion between Pennoyer and International Shoe.
Nevertheless, he used the concept of notice to expand doctrine,
here the due process protection to the in rems, prefiguring what the
Court would soon do with World-Wide Volkswagen and Asahi.
After summarizing the historical development of in personam
jurisdiction into minimum contacts, he noted that “[n]o equally
dramatic change has occurred in the law governing jurisdiction in
rem.”191 In building the bridge from International Shoe to the in rem
cases, Marshall cited lower court and scholarly sources advancing
arguments for applying minimum contacts. But his primary appeal
to Supreme Court precedent was to note that “we have held that
property cannot be subjected to a court’s judgment unless reasona-
ble and appropriate efforts have been made to give the property
owners actual notice of the action. . . . This conclusion recognizes,
contrary to Pennoyer, that an adverse judgment in rem directly affects
the property owner by divesting him of his rights in the property
before the court.”192 In other words, notice doctrine was one of the
187. Id. at 192.

188. See id. at 208–12.
189. See supra Part I.C.1.
190. 433 U.S. at 200 (“since a State’s process could not reach beyond its bor-
ders, this Court held after Pennoyer that due process did not require any effort to
give a property owner personal notice that his property was involved in an in rem
proceeding.”).
191. Id. at 205.
192. Id. at 206 (emphasis added).
doctrinal keys to unlocking an expansion of due process, just as

notice had been a comfortable cushion to soften the reach of per-
sonal jurisdiction itself.193
Justice Marshall seemed concerned that if in rem actions were
exempted from minimum contacts scrutiny, courts would be
trapped in a Pennoyer-era world of rigid assumptions about notice. If
notice matters as a due process consideration, courts should be able
to account for notice (or its absence) functionally as a matter of
minimum contacts. Marshall rejected the Pennoyer-era polarized
thinking about notice, in which courts were to assume that attach-
ment of property would almost always provide requisite notice for
in rem actions, but anything short of personal service was likely defi-
cient in notifying parties of in personam actions. What had changed
between Pennoyer and Shaffer was a more relaxed sense of the suffi-
ciency of substituted service, but also the increasing ubiquity of in-
tangible property and the growth of interstate commerce.194
The opinions reflect a real division among the judges as to the
role of notice in personal jurisdiction. Justice Stevens wrote a short
concurring opinion to stress that notice should have been at the
heart of the Court’s concern about the Delaware statute, thus cen-
tering both notice of suit and notice of jurisdiction. He opened
with the declaration that “[t]he Due Process Clause affords protec-
tion against ‘judgments without notice,’”195 and then emphasized
the constitutional requirements for sufficient substituted service of
process.196 Justice Stevens then pivoted to notice of jurisdiction,
opining that “[t]he requirement of fair notice also, I believe, in-
cludes fair warning that a particular activity may subject a person to
the jurisdiction of a foreign sovereign,”197 and detailed the sort of
conduct that might have alerted Greyhound’s directors and officers
to the possibility that they could be subject to suit in Delaware. His
argument is pure assertion—he cites no authority for this proposi-
193. Also interesting is that Justice Marshall turned to Mullane for its holding
that 14th amendment rights cannot be divided based on a classification as in per-
sonam or in rem. Id.
194. See also Rush v. Savchuk, 444 U.S. 320 (1980) (no minimum contacts with
a forum state when jurisdiction is based on quasi in rem II attachment of an auto-
mobile liability insurance policy in a state in which the defendant otherwise had no
other contacts).
195. Id. at 217.
196. Id. at 217–18. Curiously, Stevens cited McDonald v. Mabee rather than
Mullane for the due process standards of notice via service of process. This is per-
haps because McDonald is a far stronger statement about the need for service that
is likely to reach the defendant than the language in Mullane.
197. Id. at 218.
tion, although it does presage the more formal advent of notice of

jurisdiction in World-Wide Volkswagen three years later.198
D. Jurisdiction Over Plaintiffs and the Return to the Touchstone

of Notice of Suit
In 1985, the Supreme Court was presented with a new opportu-
nity to engage in an extended treatment of notice and personal
jurisdiction. Phillips Petroleum Co. v. Shutts 199 was a class action filed
in Kansas state court by nearly 28,000 natural gas royalty owners
who were residents of all 50 states, D.C., and several foreign coun-
tries. Phillips did not challenge whether it was subject to the per-
sonal jurisdiction of the Kansas court. Rather, it challenged the
court’s jurisdiction over the absent class members by linking an al-
leged problem with notice to a lack of jurisdiction. The notice to
the absent class members required an affirmative response in order
to opt out of the action, and Phillips argued that this was constitu-
tionally deficient.200
The Supreme Court had not confronted a major substantive
challenge to both notice and personal jurisdiction in the same case
since Mullane and some of the pre-International Shoe cases such as
McDonald v. Mabee.201 Evaluating jurisdictional and notice chal-
lenges side-by-side forced the Court to reckon with the relationship
between them in a more concrete way than it had done in decades.
Although the Court did not announce an explicit holding or theory
linking the two doctrines, the Shutts opinion shed some light about
what role notice plays in post-International Shoe personal jurisdiction
analysis.
As a general Fourteenth Amendment matter, the Court held
that a claimant has a due process right in her claim which is a
“chose in action.”202 Thus, it was appropriate for the Court to con-
sider whether Kansas did, in fact, have personal jurisdiction over
the absent class members and whether notice satisfied the require-
ments of due process.203 On the substantive notice issue, the Court
held that the opt-out notice satisfied the Mullane standard, both in
its contents (which Justice Rehnquist described as “fully descrip-

199. 472 U.S. 797 (1985).
200. Id. at 799–802. Phillips also raised significant choice-of-law issues, and
Shutts therefore stands for several important procedural issues in class action
litigation.
202. Shutts at 807.
203. Id. at 807–08.
tive”)204 and its delivery. Grafting an “opt-in” requirement for class

actions onto due process “would probably impede the prosecution
of those class actions involving an aggregation of small individual
claims.”205
Turning to personal jurisdiction, the Court openly acknowl-
edged that the absent non-resident class members did not have
minimum contacts with Kansas. A defendant in the same position as
the claimant royalty owners would not be subject to personal juris-
diction in Kansas. This did not matter, however, because procedur-
ally, “[a] class-action plaintiff . . . is in quite a different posture.”206
Justice Rehnquist described the litigation burdens on defendants as
far greater than those on absent plaintiffs. He stressed that the con-
sequences of a default judgment for a defendant are more severe
than the res judicata effects of a judgment on an absent plaintiff.
He also detailed the many procedural protections that class action
procedures put in place to protect absent plaintiffs—procedures
that do not exist to protect the interests of no-show defendants.207
The Court concluded with the following pronouncement:
If the forum State wishes to bind an absent plaintiff concerning
a claim for money damages or similar relief at law, it must pro-
vide minimal procedural due process protection. The plaintiff
must receive notice plus an opportunity to be heard and par-
ticipate in the litigation, whether in person or through coun-
sel. The notice must be the best practicable, ‘reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an op-
portunity to present their objections.’208
Observe what the Court is saying here: it is possible, for some
litigants, that personal jurisdiction consists entirely of notice and does
not require any of the other considerations that personal jurisdic-
tion doctrine had accrued over the years.209
204. Id. at 812.

205. Id. at 813.
206. Id. at 808.
207. Id. at 808–13.
208. Id. at 811–12.
209. An alternative reading of this passage would be to say that absent class
members do not have a specific due process right to resist personal jurisdiction,
and may challenge due process on notice grounds. However, this would be con-
trary to the language of the Court earlier in the opinion which speaks directly to
plaintiffs’ due process rights in personal jurisdiction. Moreover, subsequent cases
and scholarship all treat Shutts as standing for the proposition that courts have
personal jurisdiction over absent class members, and not simply that absent class
members have notice rights. Even Bristol-Myers Squibb, which largely undid the
That is a rather astonishing conclusion hiding in plain sight,

that personal jurisdiction could be supported entirely on the basis
of constitutionally sufficient notice, just as it could be supported
entirely on the basis of consent to jurisdiction.210 Even property lo-
cated within the jurisdiction had been subject to minimum contacts
in Shaffer. But the Shutts Court placed class action plaintiffs on the
periphery of the world where minimum contacts governs, holding
that “a forum State may exercise jurisdiction over the claim of an
absent class-action plaintiff, even though that plaintiff may not pos-
sess the minimum contacts with the forum which would support
personal jurisdiction over the defendant.”211
Shutts opened the door to the idea that notice is not simply a
due process fellow traveler with personal jurisdiction, nor is it just a
consideration that can be invoked at a court’s convenience to justify
jurisdictional expansion or jurisdictional contraction via due pro-
cess expansion. It could be, in at least some instances, synonymous
with personal jurisdiction itself.
Under this aggressive reading of Shutts, one could imagine a
world in which a set of procedural protections for defendants, if
crafted and implemented correctly, could satisfy all of Justice Rehn-
quist’s concerns. In this world, the minimum contacts test would
not only provide the legal fictional substitute for presence in the
forum state, but would also act as a proxy for additional procedural
protections for the defendant. In this alternative world, the de-
mand for minimum contacts would wane in relationship, to the ex-
tent that other procedural mechanisms provided the protections
that minimum contacts would otherwise cover. For example, a
court might point to the rules of venue, transfer, or forum non con-
veniens to show that minimum contacts are not needed to protect a
defendant’s interest in avoiding litigation in an inconvenient or
burdensome forum. The only personal jurisdiction concerns that
could not be meaningfully addressed by adequate procedural pro-
tections for defendants would be sovereignty and territoriality. It is
holding of Shutts, did not disturb that premise. See Bristol-Myers Squibb, 137 S. Ct.
1773, 1782-83 (2017) (clarifying that the Court’s holding did not disturb the appli-
cability of Shutts to the notice and personal jurisdiction requirements for absent
class members).
210. See Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991) (forum-selection
clause); Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection
clause); Hess v. Pawloski, 274 U.S. 352 (1927) (non-resident motor vehicle statute).
See generally Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fal-
lacy of Consent, 36 CARDOZO L. REV. 1343 (2015).
211. 472 U.S. at 811.
no surprise that they are also the concerns that are the most awk-
ward fit with due process.212
We have already peeked into an alternative universe in which
minimum contacts is a unified—if flexible—standard that serves
both personal jurisdiction and notice. This was the alternate uni-
verse that I proposed as a plausible reading of the treatment of no-
tice in International Shoe and the treatment of personal jurisdiction
in Mullane.213 As the subsequent cases have shown, the Court never
really pursued that path, choosing instead to use the concept of
notice, sometimes of suit, sometimes of jurisdiction, as a due pro-
cess crutch rather than as an explicit and fully realized part of con-
stitutional personal jurisdiction analysis. Shutts shows that this link
was still lurking in the doctrinal background; that a more direct
connection between these two due process doctrines might lend
greater clarity to the due process contours of personal jurisdiction
than the practice of justifying evolutions in the minimum contacts
standards with passing reference to an ever-shifting concept of
notice.
While this “additional procedural protections for defendants”
approach is a tenable if bold inference one can draw from the logic
of the Shutts opinion, it is clear that the Court did not approve of
this approach, even at the time. Rules for venue, transfer, and fo-
rum non conveniens that could easily serve as “additional procedu-
ral protections” were just as alive and well in 1985 when the Rule 23
procedures that the Court cited as ensuring fair treatment of absent
class members. Rehnquist contrasted absent class members to ordi-
nary in personam defendants for whom the minimum contacts test
still applied, thus showing a tacit belief that that rule or statute-
based procedural protections for defendants are not to be trusted
at a constitutional level, and the due process backstop ought to
remain.
Two years after Shutts, the Court reiterated its reluctance to
create or infer procedural protections for defendants in the ab-
sence of affirmative state or federal rules. In Omni Capital Interna-
tional v. Rudolf Wolff & Co.,214 the Court considered the following
puzzle: the plaintiffs sued English defendants in Louisiana federal
court alleging violation of federal commodities laws and related
212. See Whitten (Part Two), supra note 37 at 808; Wendy Collins Perdue, Sin,
Scandal, and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered,
62 WASH. L. REV. 479, 510-18 (examining and questioning the link between due
process and several putative interests addressed by personal jurisdiction doctrine).
214. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987).
state law causes of action. The defendants did not fall within the
terms of the Louisiana long-arm statute and the federal commodi-
ties law was silent as to service of process. The defendants almost
certainly had minimum contacts with the United States as a
whole.215 The Supreme Court held that neither the Louisiana long-
arm statute, nor Federal Rule of Civil Procedure 4 authorized ser-
vice of process on the English defendants. The Court noted that it
was “unclear . . . whether it is open to us to fashion a rule authoriz-
ing service of process,”216 that it would be “unwise for a court to
make its own rule authorizing service of summons” and that “fed-
eral courts cannot add to the scope of service of summons Congress
has authorized.”217 If the relevant sovereign has not designated a
method for service of process on a particular type of party, then
there is no procedure for ensuring that their due process right of
notice or personal jurisdiction is met. And the Court will be parsi-
monious in fashioning such a rule.
Observe how Omni Capital allowed the Court to double down
on “procedural protections” as a jurisdictional limiting device,
rather than as an invitation to innovate due process solutions. The
Court observed that the defendants could not be served with pro-
cess, refused to fashion a rule that would permit service, and, fi-
nally, commented that the defendants were unreachable.218 One
could imagine that the upshot of situations like Shutts and Omni
Capital would be to highlight the precise types of procedural pro-
tections that help ensure due process, and then demand that courts
interpret and apply personal jurisdiction and notice doctrines in a
manner that encourages procedural protections. The due process
right, then, seems not to be the procedural protections themselves,
but simply the right for parties to fortuitously be in a forum where
such protections already exist.
Omni Capital simultaneously centers a party’s due process right
to notice and then subordinates that right to the authority of the
relevant sovereign to craft the mechanics for such notice. It is a
reminder that notice is the concept that conveniently aligns with
intuitive notions of the liberty interest that the due process clauses
215. Id. at 100–02. The Supreme Court accepted the finding of the lower
courts that service was not authorized under the Louisiana long arm statute, and
therefore did not fully analyze whether personal jurisdiction in Louisiana would be
unconstitutional. One may infer from the opinion that the question of minimum
contacts with Louisiana was, at best, a close call.
216. Id. at 108.
217. Id. at 109.
218. Id.
protect, but that the sovereign authority of the forum will almost
always take precedence. Notice and the attendant mechanics of ser-
vice process are as much about due process window dressing as they
are about aggressively pursuing procedural protections for parties
before a court.
Beyond the question of additional procedural protections for
parties to an action, Shutts also sheds some light on the phenome-
non of notice of jurisdiction described in the previous section. Cir-
cular as it is, notice of jurisdiction was a concept born of the
intuition that personal jurisdiction and due process could provide
procedural protections to absent defendants. Notice of jurisdiction
is the in personam analog of an “opt-in” class. It posits that defend-
ants should have to do things that affirmatively “choose” a forum,
that such a choice will prepare a defendant for litigation, and that
appearing in a forum will be neither surprising nor particularly bur-
densome. Notice of jurisdiction can be seen as central to Justice
Scalia’s plurality opinion in Burnham in which he reasoned that “tag
jurisdiction” is constitutional without regard to minimum contacts
because in state personal service had always been an accepted basis
for jurisdiction, and this long-standing historical fact is itself suffi-
cient notice of a circumstance under which one might be haled
into court to defend a lawsuit.219 In other words, Justice Scalia advo-
cated for another scenario in which notice (here, notice of jurisdic-
tion) could itself be an “additional procedural protection” that
obviated the need for minimum contacts.
None of this solves the circularity problem of foreseeability as
notice of jurisdiction, and circularity is one of the biggest problems
with using this instantiation of notice as a genuine procedural pro-
tection. However, the “additional procedural protection” justifica-
tion rounds out the story of how the Supreme Court landed on this
oddly circular formulation of the minimum contacts test. For de-
cades, notice had played a quiet supporting role in the doctrinal
development of personal jurisdiction. While it never stole the spot-
light from other prominent considerations, such as state power and
sovereignty, fairness and reasonableness, and convenience, it was
undeniably in the mix of considerations and values that the Court
turned to in defining the constitutional scope of personal
jurisdiction.
219. Burnham v. Superior Court of Cal., 495 U.S. 604, 618–19 (1990).
IV.
WHITHER NOTICE?
From the pre-Pennoyer era through the first four decades after
International Shoe, notice had been a fairly regular, if underap-
preciated, factor in personal jurisdiction analysis. Although notice
did not feature in every single personal jurisdiction case, it reliably
appeared at most of the key inflection points in the development of
personal jurisdiction analysis, sometimes used to justify a jurisdic-
tional expansion, and sometimes used to mold new doctrinal
frameworks for due process expansion. But starting in the 1980s,
notice began to fade away. By the post-Asahi era of Supreme Court
jurisprudence, notice had vanished altogether.
A. Notice Vanishes from General Jurisdiction. . .

As detailed in the previous sections, several cases in the 1980s
had a significant notice element, from the stream of commerce
cases, to the in rem and class action cases, and even smaller men-
tions in cases like Burger King. But alongside these jurisdictional in-
novations, in 1984 the Court revisited general jurisdiction for the
first time since Perkins in 1952. It is here that we see the first signs
that notice would fade away.
The plaintiffs in Helicopteros Nacionales de Colombia v. Hall
(Helicol),220 filed a lawsuit in Texas against Helicol, a Colombian
company, for damages arising out of a helicopter crash in Peru.
Helicol had assorted business dealings with persons and companies
in Texas, some of them related to purchase and operation of the ill-
fated helicopter.221 In finding the exercise of general jurisdiction
under these facts unconstitutional, the Court stressed that the de-
fendant’s sporadic business dealings with Texas did not rise to the
level of systematic and continuous contacts that would justify the
exercise of jurisdiction over Helicol for any and all claims brought
against it.222 While the Court invoked the language of unilateral
activity and purposeful availment, it did not discuss how or whether
the defendants received actual notice of the lawsuit, nor did it dis-
cuss the relevance of foreseeability of lawsuits in the forum. It was
enough for the Court to detail the defendant’s sporadic contacts,
220. 466 U.S. 408 (1984).

221. Because the plaintiffs had sued under a general jurisdiction theory, the
Court evaluated the contacts on that basis and did not consider the relationship of
the contacts to the cause of action. Id. at 415 (“[A]ll parties . . . concede that
respondents’ claims against Helicol did not ‘arise out of’ and are not related to
Helicol’s activities within Texas”).
222. Id. at 414–18.
assess them against language of systematic and continuous activity,

and draw conclusions about sufficient minimum contacts for per-
sonal jurisdiction.
Recall that in International Shoe, the Court twice connected the
idea of “systematic and continuous” contacts with the concept of
notice; first with notice of suit and then again with notice of juris-
diction.223 The term “systematic and continuous” was not only
about creating a new doctrine that would stand in for physical pres-
ence in the forum state, but was also about capturing other due
process values inherent in personal jurisdiction. In Helicol, the
Court did address the question of fairness, but the metric for fair-
ness was almost entirely that of the degree of presence in the state.
When Court addressed general jurisdiction in Perkins, the evalua-
tion of systematic and continuous contacts included notice.224 In
Helicol, the Court aligned fairness almost exclusively with the extent
of the defendant’s presence in the state. Disconnecting fairness in
personal jurisdiction from notice would be the canary in the coal
mine signaling that the Court would eventually abandon “system-
atic and continuous” almost altogether nearly thirty years later.
After more than two decades of silence, the Supreme Court
returned to personal jurisdiction in 2011 addressing both general
and specific jurisdiction. The unanimous Goodyear v. Brown 225 deci-
sion drastically narrowed and reformed general jurisdiction, dis-
carding the old assumption that companies with large and
consistent retail or commercial activity in a state were subject to
general jurisdiction226 in favor of a standard in which only defend-
ants who are “essentially at home” in the forum state are subject to
general jurisdiction.227 The opinion makes no mention of notice,
foreseeability, or even the general expectations of the parties. Pur-
223. See supra Part II.A.

225. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).
226. See, e.g., Charles W. “Rocky” Rhodes & Cassandra Burke Robertson, To-
ward a New Equilibrium in Personal Jurisdiction, 48 U.C. DAVIS L. REV. 207, 217-18
(explaining that Goodyear and Bauman effectively eliminated general “doing busi-
ness” jurisdiction, replacing it with the “essentially at home” test); Allan R. Stein,
The Meaning of “Essentially at Home” in Goodyear Dunlop, 63 S.C. L. REV. 527, 532
(2012) “(stating that the “essentially at home” standard is new and “does not ap-
pear in any prior federal or state judicial decision.”).
227. Goodyear Dunlop Tires Operations, 564 U.S. at 919. Although the Court
stopped short of saying that a company could only have one “jurisdictional home”
analogous to the single “principal place of business” from diversity jurisdiction, the
Court’s definition of “essentially at home” limited a defendant’s exposure to gen-
eral jurisdiction to very few states. See Tanya J. Monestier, Where is Home Depot at
Home?: Daimler v. Bauman and the End of Doing Business Jurisdiction, 66 HASTINGS
poseful availment is invoked only for its role in highlighting the

benefits and privileges that a defendant gets from being “essentially
at home” in a forum.228 Helicol had already set the precedent for
ignoring any role of notice in evaluating the constitutionality of
general jurisdiction. Goodyear followed suit. While the absence of
notice in Helicol provides some continuity with the similar absence
in Goodyear, Goodyear is probably better grouped with the new round
of cases in which notice is absent.
Notice, and even any mention of foreseeability or notice of ju-
risdiction, appears neither in the majority nor the dissenting opin-
ions in Daimler AG v. Bauman 229 and BNSF Railway Co. v. Tyrrell,230
both general jurisdiction cases. General jurisdiction was, thus, the
first realm of personal jurisdiction analysis in which the Court extin-
guished notice as a part of jurisdictional discourse. Notice had once
been a helpful due process concept that propped up the exercise of
general jurisdiction. By Daimler, notice had become either super-
fluous or an actual barrier to jurisdictional contraction. In specific
jurisdiction, the Court had harnessed the concept of notice, seizing
on notice of jurisdiction as a useful due process justification for lim-
iting personal jurisdiction. However, general jurisdiction had be-
come problematic. Any defendant large enough to have even been
considered a meaningful candidate for general jurisdiction within a
forum state would be easy to find and easy to serve with process.
Since the Court was not interested in jurisdictional expansion, the
concept of notice was of little use. But drawing attention to notice
would raise the inconvenient proposition that a broad scope of gen-
eral jurisdiction really could exist comfortably within the bounds of
due process to the extent that due process is bound up with notice.
Thus, the Court used Daimler to put even more distance be-
tween the “systematic and continuous” standard and the aspects of
fairness and reasonableness that courts had previously found were
central to procedural due process. According to Justice Ginsburg,
the only “continuous and systematic” contacts that are strong
enough to make a defendant subject to general jurisdiction are
those that render the entity “essentially at home” in the forum state,
thus collapsing it almost entirely back into a proxy for territorial
presence.231 Under the pre-Goodyear and Daimler regime, the pre-
L.J. 233, 235-36 (2014) (summarizing the change from general “doing business”
jurisdiction to the “essentially at home” standard).
228. Id. at 924.
229. 571 U.S. 117 (2014).
230. 137 S. Ct. 1549 (2017).
231. 571 U.S. at 127.
vailing thought was that a large company might be subject to gen-

eral jurisdiction in many states because in each relevant state, its
activities were so thorough and pervasive that they were functionally
indistinguishable from local businesses.
This analogy to local businesses should be about the totality of
circumstances that make it constitutionally permissible to sue a de-
fendant on a general jurisdiction theory.232 Not only does a high
volume of systematic and continuous activity ensure that a non-nat-
ural defendant has something approximating the physical presence
in a jurisdiction that would justify the exercise of sovereign and ter-
ritorial power, but it is a proxy for the other due process values as
well, such as the relative burden of litigating in a distant jurisdic-
tion, the relevance of reciprocal benefits and burdens of operating
within the forum state, and, yes—the fact that a defendant with a
strong local presence is easy to notify.
Thus, in hindsight, the little-noticed abandonment of notice in
Helicol was an early sign that the Court would soon retreat from
other due process values as well in general jurisdiction analysis, col-
lapsing the whole enterprise back into a question foremost about
the sort of presence that one associates with sovereignty and territo-
riality, and not the sort of presence that could, taken holistically,
justify the exercise of personal jurisdiction under a number of due
process justifications. And where general jurisdiction led, specific
jurisdiction would soon follow.
B. . . . And Then Notice Disappears from Specific Jurisdiction

Considering the steady presence of notice, both notice of suit
and notice of jurisdiction, in specific jurisdiction jurisprudence
through Asahi, the absence of notice discourse in the Supreme
Court’s latest round of specific jurisdiction cases is startling. The
plaintiff in J. McIntyre Machinery, Ltd. v. Nicastro 233 was injured at
work in his home state of New Jersey by a metal shearing machine
that a British manufacturer sold through an American distrib-
232. Cf. Lea Brilmayer et. al, A General Look at General Jurisdiction, 66 TEX. L.
REV. 721 (1988) (discussing unique and non-unique forum affiliations that form
the basis for general jurisdiction). Justice Ginsburg cites this article in Daimler for
the proposition that a defendant must be like a local business in order to be sub-
ject to general jurisdiction and uses this idea to support her “essentially at home”
test. Daimler, 571 U.S. at 151-52. But the Brilmayer et al. article says no such thing
– although the authors cite the “unique” affiliations of domicile, prinicipal place of
business, and state of incorporation as the “paradigm” bases of general jurisdic-
tion, they explicitly identify “nonunique” bases of jurisdiction as bases that courts
“have properly relied on . . . for general jurisdiction.” Id. at 735.
233. 564 U.S. 873 (2011).
uter.234 The litigants and judges appeared to agree that J. McIntyre

could foresee that its product would end up in New Jersey and
cause injury there. The company used its distributer to sell its prod-
ucts in the U.S. market, attended trade shows in several states, and
knew that possible buyers and users existed across America includ-
ing New Jersey. The case presented the possibility of resolving the
persistent “stream of commerce” debate that Asahi left unresolved.
Is “mere foreseeability” that a product would reach the forum state
a sufficient minimum contact, albeit one still subject to due process
considerations of fairness and reasonableness? Or do minimum
contacts require additional purposeful or targeted activity in the fo-
rum state beyond the foreseeability of a regular stream of
commerce?
The Court was unable to generate a majority opinion that set-
tled the “stream of commerce” issue, instead granting judgment in
favor of J. McIntyre and issuing two plurality opinions and one dis-
sent. Justice Kennedy wrote for a four-justice plurality. His J. McIn-
tyre opinion is famous for its full-throated defense of the power
theory of jurisdiction,235 stressing throughout the opinion that any
exercise of personal jurisdiction by New Jersey under these facts
would violate jurisdictional principles of sovereignty and territorial-
ity.236 Justice Breyer, joined by Justice Alito, declined to sign on to
Justice Kennedy’s reasoning, but agreed that New Jersey could not
exercise jurisdiction over the manufacturer. Justice Breyer argued
that the Court need not break new doctrinal ground to do so237
and expressed a general frustration that the case was not about the
Internet, the realm in which he believed doctrinal innovation
should take place.238 Justice Ginsburg’s dissent stressed that New
Jersey was part of a national market that J. McIntyre targeted in its
sales and marketing efforts, criticized Kennedy’s heavy conceptual
reliance on sovereignty, presence, and consent, and emphasized
the ways in which subjecting the manufacturer to suit in New Jersey
234. Id. at 878-79.

235. See, e.g., Patrick Borchers, J. McIntyre Machinery, Goodyear, and the Inco-
herence of the Minimum Contacts Test, 44 CREIGHTON L. REV. 1245, 1255-56 (2011)
(analyzing the plurality’s emphasis on power and sovereignty); Glenn S. Koppel,
The Functional and Dysfunctional Role of Formalism in Federalism: Shady Grove Versus
Nicastro, 16 LEWIS & CLARK L. REV. 905, 961 (2012) (describing the plurality’s
“strict adherence to state forum-focused sovereignty.”); Stewart E. Sterk, Personal
Jurisdiction and Choice of Law, 98 IOWA L. REV. 1163, 1198-1200 (2013) (exploring
Justice Kennedy’s “focus on power.”).
236. J. McIntyre, 564 U.S. at 879–82.
237. Id. at 887–89 (Breyer, J., concurring).
238. Id. at 890 (Breyer, J., concurring).
would not be unconstitutionally burdensome, inconvenient, or un-

fair.239 None of the opinions made even a glancing reference to
notice.
And yet, few if any commentators have remarked upon the ab-
sence of notice as a due process consideration in J. McIntyre.240 No-
tice had long been more or less absent from personal jurisdiction
commentary, but as we have seen, notice itself persisted for over
100 years after Pennoyer as part of personal jurisdiction jurispru-
dence. Consider the role that notice played in the long doctrinal
journey from Pennoyer, where notice and service of process shaped
Justice Field’s conceptions of sovereignty and territoriality, to the
use of notice at nearly every doctrinal inflection point to offer reas-
surances of due process compliance, or to push for due process ex-
pansion. Notice had once been closely tied to the notions of
sovereignty and territoriality upon which Kennedy centered his
opinion, and notice had once been a part of the conceptual foun-
dation that fueled the development of stream of commerce doc-
trine in the first place. But by J. McIntyre, the Court seemed entirely
uninterested in implications of whether the defendant had been
duly notified of the lawsuit, nor in the question of whether the rea-
sonableness aspect of due process should account for the expecta-
tions of parties, that is, whether J. McIntyre’s conduct could or
should have put it on notice that it might be sued in any American
jurisdiction where its products were sold.
The disinterest continued in the new spate of Supreme Court
personal jurisdiction cases. Walden v. Fiore,241 the Court’s latest
statement on personal jurisdiction over parties alleged to have com-
mitted intentional torts, did not mention notice directly. However,
Justice Thomas, writing for a unanimous Court, did discuss the rele-
vance of whether a defendant could foresee harm in the forum
state. Unlike the Court’s reasoning in Calder and Keeton, Thomas
did not extend foreseeability of harm in the forum state to notice of
jurisdiction in terms of amenability to suit in the forum. In one way,
dropping notice of jurisdiction from personal jurisdiction analysis is
a step forward in making more sense out of personal jurisdiction
doctrine. A party’s ability to foresee being haled into court in the
239. Id. at 893–910 (Ginsburg, J., dissenting).

240. I count myself among those who paid little attention to this phenome-
non, having already written three times about personal jurisdiction since J. McIn-
tyre and Goodyear. Robin J. Effron, Letting the Perfect Become the Enemy of the Good: The
Relatedness Problem in Personal Jurisdiction, 16 LEWIS & CLARK L. REV. 867 (2012);
Effron, supra note 176, at 123.
241. 571 U.S. 277 (2014).
forum state had always suffered from a circularity problem, under-

mining the very predictability it was meant to create.242
Reducing foreseeability to foreseeability of harm only, and not
notice of jurisdiction, exposes the whole concept of foreseeability as
irrelevant to the question of jurisdiction. Much of the Walden opin-
ion is devoted to the idea that the defendant’s contacts with the
forum must amount to more than mere knowledge or awareness of
the plaintiff’s contacts with the forum.243 If the defendant’s con-
duct is directed at the plaintiff, then contacts with the forum state
are incidental to that targeting. Walden demands that the defen-
dant establish minimum contacts with the forum state that operate
independently of the plaintiff’s fortuitous, and even predictable,
presence in the state. This argument, though, reveals the work that
notice of jurisdiction had been doing in foreseeability analysis. Re-
call that notice of jurisdiction grew out of the tradition of using
notice to offer reassurances of the presence of due process, or to
question whether an assertion of jurisdiction met the requirements
of due process. Notice of jurisdiction was itself a contact with the
forum state. It was the connection between the happenstance of
harm to a plaintiff and the location of the plaintiff herself. Notice is
as much about the forum as it is about the plaintiff because, while
harm to the plaintiff might be incidental to the plaintiff’s location,
the prospect of a legal proceeding is always tied to a particular and
theoretically foreseeable forum. With close connection between no-
tice and service of process, notice had always included an important
element of state power alongside the age-old intuitions about fair-
ness and due process. The innovators of notice of jurisdiction har-
nessed this connection as a conceptual basis for foreseeability.
Notice of jurisdiction and foreseeability had always been
doomed as a viable conceptual basis for minimum contacts because
of the incoherence borne of the circularity problem. But taking
away notice of jurisdiction might have doomed foreseeability in its
entirety because it robbed foreseeability of the connection to the
forum upon which the concept was once based. Walden provides a
good encapsulation of the story of notice in personal jurisdiction.
In the post-International Shoe era, the presence of notice helped to
create a vague and unstable doctrine: foreseeability of litigation in
the forum. In the post-Asahi era, the absence of notice only mud-
dled things further.

243. Walden, 571 U.S. at 283–85.
The last case in the doctrinal odyssey from Pennoyer to the pre-
sent is Bristol-Myers Squibb v. Superior Court.244 As of this writing, it is
the latest word on personal jurisdiction. It is also, perhaps, the final
nail in the coffin of the relationship between personal jurisdiction
and notice. The plaintiffs in Bristol-Myers Squibb (BMS) were a group
of over 600 persons who sued BMS in California state court alleging
injuries from BMS’s drug Plavix. Eighty-six plaintiffs were California
residents, and the rest were residents of 33 other states. BMS could
not argue that California lacked jurisdiction over the plaintiffs—
each plaintiff had sued individually, thus consenting to the jurisdic-
tion of the court. Moreover, Shutts all but foreclosed the idea that
courts could meaningfully question personal jurisdiction over ag-
gregated claimants.245 So instead, BMS argued that California
lacked jurisdiction over BMS for the claims brought by non-re-
sidents. The Supreme Court agreed, holding that California lacked
personal jurisdiction over the claims of plaintiffs who “did not al-
lege that they obtained Plavix through California physicians or
from any other California source; nor did they claim that they were
injured by Plavix or were treated for their injuries in California.”246
Justice Alito wrote for himself and seven other justices; only
Justice Sotomayor dissented. Other commentators have already be-
gun the scholarly debate over the merits of the opinion and the
holding itself.247 For our purposes, what is striking about the opin-
ion is the absence of any mention of notice in a case where notice
once might have figured in the due process analysis. The opinion
builds on Justice Kennedy’s rhetoric from J. McIntyre and firmly cen-
ters federalism, sovereignty, and power as the doctrinal north star
for personal jurisdiction analysis.248 But Pennoyer itself and the deci-
sions in the decades following routinely discussed notice alongside
the application of the power and sovereignty principles at the heart
of the Pennoyer framework. As we have seen, notice was one of the
crucial links between the structural doctrines of sovereignty and ter-
ritoriality, and the justice-based due process ground that Pennoyer
244. 137 S. Ct. 1773 (2017).

245. See supra, note 203 and accompanying text.
246. Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773,
1778 (2017).
247. See, e.g., Bradt & Rave, supra note 73; Michael H. Hoffheimer, The Stealth
Revolution in Personal Jurisdiction, 70 FLA. L. REV. 499 (2018); Scott Dodson, Plaintiff
Personal Jurisdiction and Venue Transfer, 117 MICH. L. REV. (forthcoming 2019), avail-
able at https://ssrn.com/abstract=3228023.
248. Bristol-Myers Squibb, 137 S. Ct. at 1780 (“restrictions on personal jurisdic-
tion are . . . a consequence of territorial limitations on the power of the respective
states.”). See also, Hoffheimer, supra note 247.
claimed as the primary constitutional grounding for the right to

resist personal jurisdiction.
Although the Bristol-Myers Squibb decision sets forth a forceful
recapitulation of sovereignty and territoriality, the Court did not
jettison due process.249 Justice Alito’s opinion, however, shows just
how awkward the fit between personal jurisdiction and due process
had become. This is most evident in Part II.B of the opinion in
which Justice Alito addresses the “variety of interests”250 that a court
must consider in assessing whether the exercise of personal jurisdic-
tion is unconstitutional. He begins with a mention of the interests
of the forum state and the plaintiff, but dismisses these without any
analysis before turning to “the primary concern” which is “the bur-
den on the defendant.”251 He acknowledges that this burden “obvi-
ously requires a court to consider the practical problems resulting
from litigating in the forum”252 but does not examine what such
problems might be in this case. And this is probably because there
is little that he could say—BMS was already in the forum state de-
fending nearly identical claims, so that the usual jurisdictional buga-
boos about distance, convenience, familiarity with the legal system,
and other practical burdens would have made little sense in this
situation.
Thus, Justice Alito refashioned the burden to “encompass[ ]
the more abstract matter of submitting to the coercive power of a
State that may have little legitimate interest in the claims in ques-
tion.”253 Stated differently, Justice Alito added a new “burden” that
a defendant might bear—the psychic burden of an alleged violation
of state sovereignty. This possibility had lurked in the shadows of
personal jurisdiction analysis for decades, and he quoted World-Wide
Volkswagen’s admonition that “the Due Process Clause, acting as an
instrument of interstate federalism, may sometimes act to divest the
State of its power to render a valid judgment”254 to support the
claim that state sovereignty can be folded into considerations of the
burden on the defendant in order to shoehorn a federalism argu-
ment into a due process framework.
This part of the Court’s opinion is the natural result of the
Court’s insistence on doctrinal formalism regardless of whether the
249. 137 S. Ct. at 1779 (“It has long been established that the Fourteenth
Amendment limits the personal jurisdiction of state courts.”).
250. Id. at 1780.
251. Id.
252. Id.
253. Id.
254. Id. (quoting World-Wide Volkswagen, 444 U.S. at 294).
results of that formalism had any relationship to how plaintiffs and

defendants actually encounter the world or the forum state.
Sotomayor’s dissent is a plea to apply common sense to the Interna-
tional Shoe framework of traditional notions of fair play and substan-
tial justice. For decades, notice had provided the connection
between due process formalism, the intuitions of fair play and sub-
stantial justice, and the exercise of authority over out-of-state de-
fendants. Stripped of notice, the Sotomayor dissent in Bristol-Myers
Squibb and the Ginsburg dissent in J. McIntyre stand as simple pleas
for the constitutional law of personal jurisdiction to conform to
modern realities of commerce and contact. With one of the natural
pillars of due process gone, the remaining generalized appeals to
considerations of reasonableness in light of the relative interests of
the defendant, plaintiff, and forum state fell on increasingly deaf
ears. The due process innovations of International Shoe had finally
collapsed back into the world of Pennoyer, and the only remaining
task was to sort out the formal boundaries of minimum contacts.
The task of relating such an inquiry to other due process values had
been set aside.
V.
NOTICE RESURRECTED
The primary focus of this Article has been devoted to the ex-
planatory project of demonstrating that the history of constitutional
personal jurisdiction doctrine is incomplete without a thorough ac-
count of how notice has aided the development, maintenance, and
evolution of personal jurisdiction as a due process doctrine. The
story illuminates a history that has been hiding in plain sight. But
beyond that, it gives a more satisfying answer to the question of why
the Court has been able to so deftly drop core due process con-
cerns from personal jurisdiction analysis by neatly redefining each
in terms of the older Pennoyer-style justifications. The evolution of
notice of jurisdiction from notice of suit had provided a template
for refashioning individual liberty concerns into sovereignty and
territoriality arguments. And the eventual absence of notice at all
provided the warning signal that the Court was willing to drop some
due process concerns altogether.
In this Part, I sketch a path forward for reviving notice as a due
process concern in personal jurisdiction analysis. Resurrecting no-
tice would help to construct a broad personal jurisdiction doctrine.
Court access for plaintiffs could be re-elevated as a core justice and
due process concern. It is easier to embrace a personal jurisdiction
doctrine that includes plaintiff or forum-focused analyses if courts
can reassure themselves that a core component of the defendant’s

personal jurisdiction due process rights has been satisfied.
That being said, personal jurisdiction cannot completely col-
lapse back into notice. The two doctrines were never synonymous
nor interchangeable. It would be strange to suggest that a return to
notice would entail having notice swallow personal jurisdiction in
its entirety. Rather, notice should be a meaningful factor in per-
sonal jurisdiction analysis. Such a resurrection would be tricky. For
one thing, doing so is hardly a guarantee of clarity or consistency in
personal jurisdiction doctrine. Constitutional personal jurisdiction
doctrine has been plagued by such problems since Pennoyer, mean-
ing that there is no magical point in time to which we could set
back the clock and discover the “perfect” use of notice in an ele-
gantly logical personal jurisdiction doctrine.
How, then, should notice be marshaled in service of a better
and broader personal jurisdiction doctrine? International Shoe pro-
vides the first clue. Notice would allow the Court to resurrect a
broader general jurisdiction theory. The mistake that the Supreme
Court made in the post-2011 cases was to focus almost exclusively
on how minimum contacts are a proxy for presence at the expense
of other core due process values. The problem is that International
Shoe’s minimum contacts language was never just about presence
and the power that a forum may exercise over non-natural persons.
The requirement of systematic and continuous contacts ensures
that a forum will not exercise jurisdiction over a defendant who is
unlikely to anticipate jurisdiction or hear of a pending lawsuit. It is
possible to repackage both of these notice-related concerns in ser-
vice of a new, notice-inclusive approach.
Briefly stated, the notice-inclusive approach to personal juris-
diction has four components: (1) Establishing comfort with a
broadly available and easily-satisfied jurisdictional standard; (2) Re-
committing to a deeper constitutional examination of notice and
service of process; (3) Using specific jurisdiction as a doctrine that
provides constitutionally required “additional procedural protec-
tions” for defendants who are not subject to general jurisdiction,
but nevertheless have a connection with the forum in which that
personal jurisdiction may be constitutionally appropriate; (4) Re-
fashioning general jurisdiction on systematic and continuous con-
tacts that represent presence and notice while limiting its scope by
reference to constitutional concerns such as burden and conve-
nience. I shall address each of these in turn.
A. Establishing Comfort with Easily-Satisfied Due Process Criteria
Scholars have routinely tied the transformation of personal ju-

risdiction doctrine in International Shoe to the growth of a larger and
more complex national economy from the late Nineteenth Century
through World War II.255 These changes in commerce certainly ne-
cessitated a more capacious personal jurisdiction doctrine that ac-
counted for an economy that operated seamlessly across state
borders. But this era brought another change as well. As the econ-
omy grew and became more interconnected, so too did the modes
of communication and transportation that eased the burdens and
uncertainties of service of process. The due process entitlement to
be notified of a pending action was one that courts could not as-
sume would always be easily satisfied. Thus, constructing rules that
ensured actual or constructive notice of a lawsuit was a crucial fea-
ture of the exercise of state power over a defendant. Notice was not
taken for granted, and many of the personal jurisdiction decisions
of the pre-Pennoyer and pre-International Shoe era reflect this con-
cern. Notice, along with other due process and sovereignty consid-
erations, was part of a system of actively policing the boundaries of
state territorial power.
In erecting and maintaining personal jurisdiction barriers,
there seems to be an unspoken norm that personal jurisdiction
should be hard. Perhaps it was this subconscious realization that
caused the Court to slowly abandon notice in personal jurisdiction
analysis. An admission that a core due process value of personal
jurisdiction, notice, is quite easily satisfied would make personal ju-
risdiction itself too easy. Rather than make the self-congratulatory
admission that modern commerce and communications have rele-
gated the centuries-old concerns about notice somewhat obsolete,
the Court quietly turned to the other concerns. It is as if the criteria
for centering a personal jurisdiction rationale focus on whether
that doctrine will be hard to satisfy, and not whether the doctrine
itself is a good fit for either due process or common-sense bounda-
ries on jurisdiction. Thus, the Court slowly let go of a due process
255. See, e.g., Damon C. Andrews & John M. Newton, Personal Jurisdiction and
Choice of Law in the Cloud, 73 MD. L. REV. 313, 336 (2013) (“The Supreme Court’s
adoption of the ‘minimum contacts’ standard in International Shoe was a reaction
to the evolving methods by which business was conducted in the twentieth cen-
tury.”); Douglas D. McFarland, Drop the Shoe: A Law of Personal Jurisdiction, 68 MO.
L. REV. 753, 753 (2003) (After Pennoyer, “courts struggled with application of [Pen-
noyer’s] rigid principle to an expanding and increasingly mobile economy, and to a
new type of defendant, the corporation.”).
rationale that could have resulted in far more defendants subject to

suit in many more states.
It is time to let go of this chain of logic. A recognition that
most defendants are easily reachable by in-hand service either in or
out of state, by reliable public and private mail delivery services, or
by reliable electronic means should be an opportunity for the
Court to acknowledge that the baseline of acceptable jurisdiction
can move accordingly. If it is true that many more defendants can
be notified of a lawsuit in a manner consistent with due process,
courts should accept this happy reality, rather than constantly re-
calibrating personal jurisdiction doctrine so that it continues to be
“hard enough” to exclude some vaguely unspecified quantum of
out-of-state defendants.
This recognition should extend to due process values beyond
notice. For example, the acknowledgement that defending a lawsuit
in a geographically distant state is, for many defendants, not terribly
burdensome or inconvenient in the modern economy should en-
courage greater comfort with a broader scope of personal jurisdic-
tion. It should not prompt the Court to discard burdens and
inconvenience as a meaningful factor in personal jurisdiction analy-
sis or to completely retrofit the concept so as to equate it with a
“harder” standard like territoriality as the Court did in Bristol-Myers
Squibb. 256 Instead, the Court should take up the invitation to re-
calibrate due process concerns rather than discard them in favor of
searching for the criteria that will be the most limiting of personal
jurisdiction.
B. Pressing for Deeper Constitutional Scrutiny of Notice and Service

of Process Practices
A willingness to accept easily-satisfied due process criteria such
as notice as meaningful indicia of constitutionality should not en-
compass an unexamined acquiescence to current constitutional no-
tice doctrine. Sustained constitutional examination of notice
doctrine as it relates to notice and service of process itself has been
thin and sporadic in the decades since Mullane.257 A more search-
ing approach to notice might bring some added due process heft to
the role that notice might play in personal jurisdiction.
While it is beyond the scope of this Article to develop and sug-
gest comprehensive changes in constitutional notice doctrine, it is
worth sketching a few avenues for exploration that would fit com-

fortably within Mullane’s “reasonably calculated under the circum-

stances” standard.258
Defendants from vulnerable or underrepresented populations
might benefit from more robust constitutional notice protections.
These would be, by and large, individual persons or small, local
non-natural defendants who lack access to retained or in-house
counsel that might provide them with internal systems for accepting
service of process and making sense of a summons and complaint.
Because most individuals are at least theoretically reachable by a
process server, first class mail, or reliable electronic means,259 it is
unlikely that the Court would need to make serious changes to the
delivery aspect of service of process. That being said, there could be
room for taking seriously the service problems when vulnerable
populations are involved, such as persons who lack a steady, fixed
address or whose residential or work environments make receipt of
service of process less of a certainty, even in the modern
economy.260
Beyond the mechanics of service of process itself, there is a real
opportunity for examination of the constitutional sufficiency of the
content of summonses, complaints, and other notices such as the
notices sent to absent class members. Constitutionally sufficient no-
tices often involve documents with small print261 or written in
legalese or other inscrutable language.262 While this poses little
problem to well-heeled defendants with reliable access to legal
counsel, it can present a real barrier to a natural lay person defen-
258. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
259. See Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018) (empiri-
cal study of electronic notice in class actions); Philip P. Ehrlich, Comment: A Balanc-
ing Equation for Social Media Notice, 83 U. CHI. L. REV. 2163 (2016) (discussing
current issues with electronic forms of notice).
260. See Gottshall, supra not 184, at 814 (arguing that “[t]raditional methods
of service, which lack reliable verifications, are not reasonably calculated to pro-
vide constitutionally adequate notice. The technological advancements that have
occurred in the decades following Mullane, provide new and better circumstances
under which notice must be provided.”).
261. Shannon R. Wheatman & Terry R. LeClercq, Majority of Class Action Publi-
cation Notices Fail to Satisfy Rule 23 Requirements, 30 REV. LIT. 53, 58 (finding in a
study of securities class action notices that “over 60% of notices were written in less
than an 8-point font.”).
262. Todd B. Hilsee, Shannon R. Wheatman, & Gina M. Intrepido, Do You
Really Want to Me to Know My Rights? The Ethics Behind Due Process in Class Action
Notice Is More Than Just Plain Language, 18 Geo. J. L. Ethics 1359 (2005) (describing
problems with plain language usage in class action notices).
dant who might need extra time and resources to decode a sum-
mons or class action notice.263
In the end, a focus on aspects of notice might provide a means
to address an important distinction among defendants that has
vexed some members of the Court in recent years. Consider the
Appalachian potter that caused Justice Breyer such concern in
McIntyre:
What might appear fair in the case of a large manufacturer
which specifically seeks, or expects, an equal-sized distributor
to sell its product in a distant State might seem unfair in the
case of a small manufacturer (say, an Appalachian potter) who
sells his product (cups and saucers) exclusively to a large dis-
tributor, who resells a single item (a coffee mug) to a buyer
from a distant State (Hawaii).264
Justice Breyer’s example is focused on the purposefulness of
the seller-defendant. This is unsurprising given the long doctrinal
emphasis on purposeful availment and targeting of the forum that
has driven much of personal jurisdiction analysis since World-Wide
Volkswagen. But perhaps the obsessive search for the line between
targeting an in-state market versus a region versus the nation as a
whole obscures other distinctions that are just as relevant from a
due process perspective. We might be just as concerned with the
fact that a sole proprietor artisan might be significantly less
equipped to respond to a legal notice than a large corporation, just
as the ability of such a defendant to retain and manage local coun-
sel in a far-flung jurisdiction is quite different from the ability to do
so by a big company with its own legal department.
Beefing up constitutional notice doctrine is unlikely to radi-
cally redefine personal jurisdiction analysis. The Mullane bar is rela-
263. See Debra Lyn Bassett, Just Go Away: Representation, Due Process, and Preclu-
sion in Class Actions, 2009 B.Y.U. L. REV. 1079, 1115 (“[T]he nature of the claims in
many class actions often renders notice by publication necessary, despite its notori-
ous ineffectiveness.”); Susan P. Koniak, How Like a Winter? The Plight of Absent Class
Members Denied Adequate Representation, 79 Notre Dame L. Rev. 1787, 1811-12, 1815-
17, 1823 (2004) (describing problems with the content of class action notices);
Tobias Barrington Wolff, Federal Jurisdiction and Due Process in the Era of the Nation-
wide Class Action, 156 U. Pa. L. Rev. 2035, 2075 (2008) (“Absent class members . . .
generally do not receive any form of notice regarding the proceeding [denying
certification], and certainly not the individual notice and opportunity to opt out
that a 23(b)(3) action would require if certification were granted.”). See generally
Debra Lyn Bassett, Class Action Silence, 94 B.U. L. REV. 1781 (2014) (describing the
relationship between problems with class action notice, class members’ responses
to notice, and the presumption of consent to personal jurisdiction).
264. J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 891-92 (2011).
tively low, and while there are good reasons to reinvigorate parts of
that doctrine, there is great utility in keeping the due process no-
tice requirement relatively easy to satisfy. It allows courts and legisla-
tures to fashion manageable means of allowing lawsuits and other
proceedings to go forward without cutting off a plaintiff’s ability to
pursue a remedy, or making service of process so onerous that it
creates a serious access to justice issue. Nevertheless, treating notice
doctrine as a constitutionally significant and live issue ensures that
it will not be an immutably easy constitutional hurdle. It is easier to
demand comfort with a relatively low constitutional bar when that
bar is periodically recalibrated to reflect the underlying due process
concerns at hand.
C. Sharpening Specific Jurisdiction with an “Additional

Procedural Protections” Approach
The Supreme Court has restricted the scope of specific juris-
diction over the past decade. It has accomplished this contraction
by focusing heavily on the sovereignty and territoriality concerns.
Other due process values have either been discarded, devalued, or
refashioned as concerns that are subsumed by sovereignty and terri-
toriality. A notice-inclusive approach to personal jurisdiction could
restore a broader due process basis to personal jurisdiction analysis,
thus broadening specific jurisdiction’s scope.
The minimum contacts standard was never meant to be an ex-
clusive proxy for presence. A close reading of International Shoe
demonstrates that minimum contacts are meant to provide an as-
surance that other due process values like notice are protected.265
The key to unlocking a broader scope of specific jurisdiction is to
recognize when a core due process value to personal jurisdiction
has been satisfied. If it has not, a court might then look to see if
additional procedural protections can or would make up for this
deficit. The greater assurance a court has that a defendant has ac-
tual or constructive notice of a lawsuit, the more diminished the
need to grasp tightly to fictive presence as a value that supersedes
all others.
A notice-inclusive approach is, in some senses, a version of the
dreaded “sliding scale” of contacts and relatedness that the Su-
preme Court rejected in Bristol-Myers Squibb. 266 Notice is a due pro-

266. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1778-89
(2017) (rejecting California’s sliding scale approach to specific jurisdiction in
which a wider range of general contacts with the forum state compensate for fewer
dispute-related contacts with the forum state).
cess concern that provides a meaningful link between wide-spread

forum contacts that fall short of general jurisdiction and dispute-
related contacts that fall short of the tight relationship between
plaintiff, claim, and defendant required by current specific jurisdic-
tion doctrine. A notice-inclusive approach to personal jurisdiction
anchors this type of holistic analysis in the due process heart of In-
ternational Shoe’s minimum contacts standard. A few examples illus-
trate this approach.
1. Specific Jurisdiction in Mass Actions and Class Actions

In the wake of Bristol-Myers Squibb, some commentators have
worried that the Supreme Court has opened up personal jurisdic-
tion as yet another tool for defendants to break apart mass actions
and possibly class actions as well. Plaintiffs must now show that a
court has jurisdiction over a defendant in each plaintiff’s individual
claim in a class action. Lower courts are split on whether and how
this applies to class actions, with some courts holding that a court
must have personal jurisdiction over the claims of all absent class
members267 and others holding that only the named representa-
tives are considered for personal jurisdiction purposes.268
Bristol-Myers Squibb is the logical end of a personal jurisdiction
journey in which the Court has been quietly dropping and diluting
core due process values from personal jurisdiction analysis, leaving
only a skeleton of purposeful availment, sovereignty, and territorial-
ity.269 Even purposeful availment has lost its early robust dimen-
sion. The point of purposeful availment seems only to be a means
of strengthening the end conclusions regarding sovereignty and
territoriality, rather than standing for larger due process values.
The mass action context has revealed the awkward due process
architecture that the Court had constructed over the past two de-
267. See, e.g., Practice Management Support Services, Inc. v. Cirque Du Soleil,
Inc., 301 F. Supp. 3d 840, 861 (N.D. Ill. 2018) (“It [is] not clear how Practice
Management can distinguish the Supreme Court’s basic holding in Bristol–Myers
simply because this is a class action.”); Wenokur v. AXA Equitable Life Ins. Co.,
2017 WL 4357916 at *4 n.4 (D. Ariz. 2017) (“The Court also notes that it lacks
personal jurisdiction over the claims of putative class members with no connection
to Arizona and therefore would not be able to certify a nationwide class.”).
268. See Knotts v. Nissan North America, Inc., 2018 WL 4922360 (D. Minn.
2018) (summarizing district court decisions in “California, Louisiana, Florida,
Georgia, Virginia, Texas, the District of Columbia, and even Illinois [that] have
concluded that there are valid reasons for limiting BMS to named parties—partic-
ularly due to the material distinctions between mass tort actions and class
actions.”).
cades. While Justice Alito’s eight-judge majority opinion was argua-

bly a better fit with the most recent specific jurisdiction
jurisprudence, Justice Sotomayor’s lone dissent rightly called atten-
tion to the lack of a common-sense framework that the Court’s deci-
sions up to and including Bristol-Myers Squibb had produced.270
Notice, among other core due process concerns, might play a
role in reviving a meaningful fairness inquiry to specific jurisdiction
analysis in mass action cases. In fact, notice might be the missing
link between the majority’s strict formalism in its “relatedness” re-
quirement for the non-residents’ claims and the strained logic of
concluding that it would really be contrary to the standards of “fair
play and substantial justice” to require the defendant to defend
“materially identical”271 claims to those it is already defending in
the forum state.
Observe the impasse here between Justice Alito and Justice
Sotomayor: Justice Alito sees a bevy of claims that might look super-
ficially as if they belong in California, but in fact the individual dis-
putes have nothing to do with the state. Justice Sotomayor sees
materially identical claims which all arise out of conduct that does
relate to the “same essential acts” that included relevant forum con-
duct in California.272 Much of Justice Sotomayor’s argument hinges
on a conviction that a nationwide course of conduct that includes
the forum state should be sufficient to show purposeful availment
of the forum state. That is a powerful argument in and of itself and
one that I (among others) have defended on grounds unrelated to
notice.273
But mass actions close the loop between purposeful availment
and relatedness in an even more concrete way. The nationwide (or,
in some cases, regional) course of action shows purposeful avail-
ment of the forum. In Bristol-Myers Squibb, for example, the defen-
dant marketed and sold the drug at issue directly into California.274
The existence of the California claims themselves provides an im-
portant type of notice. The defendant knows that it is being sued
for injuries allegedly caused by Plavix. It knows that it is being sued
in California. It is, thus, especially well-positioned vis-à-vis notice of
jurisdiction (i.e., notice that a lawsuit about conduct related to this
drug might be brought in a forum where it marketed the drug).
270. 137 S.Ct. at 1787 (Sotomayor, J. dissenting) (“[O]ur precedents do not

require this result, and common sense says that it cannot be correct.”).
271. Id at 1785.
272. Id.
273. See Dodge & Dodson, supra note 176; Effron, supra note 176.
274. 127 S.Ct. at 1778.
Such a defendant is also well-positioned vis-à-vis notice of suit. If it is

constitutionally permissible to serve Bristol-Myers Squibb with a
summons and complaint detailing allegations of Plavix injuries suf-
fered by a patient in California, then the defendant has not just
notice, but a sophisticated preview of the dimensions of the claims
generally. The device of the mass action itself ties the generalized
purposeful availment regarding forum-related conduct to the speci-
ficity of actual non-resident claims.
Aggregated litigation already has a host of additional procedu-
ral protections that are meant to buffer against due process
problems for both plaintiffs and defendants in these actions. Class
actions in particular have such structures, and this is what many
lower courts have stressed when declining to extend Bristol-Myers
Squibb to class actions.275 There are vigorous debates about the
scope of these protections in state and federal courts for both class
actions and mass actions. A better personal jurisdiction debate
would take seriously these additional procedural protections. Ju-
rists should inquire whether these protections enhance a claim to
personal jurisdiction, or, alternatively, whether they fall short of the
Fourteenth Amendment protections that are core to personal juris-
diction in particular, and not due process generally. Due process
problems with aggregation should be addressed directly, and not
hidden beneath another due process doctrine.
2. Using Registration Statutes to Broaden the Availability
of Specific Jurisdiction
States require out-of-state corporations to appoint an agent for
service of process upon registration.276 The jurisdictional effect of
registration statutes is constitutionally uncertain, as the Court has
not addressed them in the post-International Shoe era.277 Thus, the
relationship between registration, minimum contacts, and consent
to jurisdiction is unclear. For many decades, registration statutes
lurked in the background of personal jurisdiction doctrine because
the broader availability of general jurisdiction over large companies
made the use of such statutes mostly unnecessary. However, inter-

276. Matthew Kipp, Inferring Express Consent: The Paradox of Permitting Registra-
tion Statutes to Confer General Jurisdiction, 9 REV. LITIG. 1, 1-2 (1990) (describing
registration statutes and citing examples of state registration statutes).
277. Id. (describing the doctrinal puzzle of the pre-International Shoe case of
Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917), that
appears to authorize personal jurisdiction on a registration statute alone, and Inter-
national Shoe which imposed the minimum contacts test); Monestier, supra note
210, at 1361-62 (describing the academic discourse surrounding Pennsylvania Fire).
est in using registration statutes as a path to general jurisdiction has

surged in the wake of the Goodyear and Daimler restriction.278
Most courts have continued to hold that registration statutes
do not confer general jurisdiction on the forum state.279 But gen-
eral jurisdiction is not the only possibility. Courts in some jurisdic-
tions have held that registration statutes are a form of consent to
the specific jurisdiction of that forum “for causes of action arising
from the business that it actually conducts in the state.”280 Registra-
tion statutes could be key to filling the gaps between a narrow gen-
eral jurisdiction doctrine and the overly restrictive minimum
contacts standard set in the post-2011 specific jurisdiction cases.
Courts should use notice as part of the doctrinal justification for
this move.
The cases in which registration statutes bolstered by notice
doctrine might fill a void are those in which the defendant con-
ducts business in the forum state that is related to the wrongdoing
in a plaintiff’s cause of action but might not be specifically related
enough to that plaintiff’s cause of action to support specific juris-
diction under J. McIntyre and Bristol-Myers Squibb. This would cover
many large businesses with national sales, marketing, or employ-
ment schemes. A well-written registration statute might extend a fo-
rum’s jurisdiction over all actions that are related to the
corporation’s business actions within the forum state. These claims
need not arise out of those specific activities, so long as the claims
are related to the same business activities that the defendant has
conducted within the state.
Notice is the due process doctrine that closes the loop between
the “arise out of” and “related to” concepts that Justice Alito broke
apart in Bristol-Myers Squibb. If a defendant has consented to juris-
diction for claims relating to its business activities, it has notice of
jurisdiction that it can be sued for precisely these activities. The
additional element of purposeful availment connected to each and
every plaintiff is less necessary. Moreover, registration statutes have
the added bonus of ensuring an extra layer of comfort with regard
278. See Monestier, supra note 210, at 1358 (“Now that plaintiffs will have a
much harder time establishing general jurisdiction over defendants in all but the
most obvious of cases, a different ground of jurisdiction will most certainly take
center stage: that of corporate registration.”).
279. See e.g., Brown v. Lockheed Martin Corp., 814 F.3d 619, 625-27 (2d Cir.
2016); Deleon v. BNSF Rwy. Co., 426 P.3d 1 (Mont. 2018); Amelius v. Grand Impe-
rial, LLC, 64 N.Y.S.3d 855 (2018) (New York’s registration statute does not confer
general jurisdiction over foreign corporate defendant).
280. Monestier, supra note 210, at 1370.
to notice of suit via the mechanism of appointing an agent for ser-

vice of process under the statutes.
If registration statutes are to be used in this manner, it would
be part of a larger project of reinvigorating the core due process
concerns of personal jurisdiction. For example, courts might use
registration statutes to afford jurisdictions the ability to start with a
presumption of notice in lawsuits related to business activities con-
ducted within the state. But the presumption that due process has
been satisfied largely through notice and consent could be over-
come by a showing that other concerns are particularly present in a
given case. Perhaps a small corporation has registered to do busi-
ness in all 50 states in the hopes that it will one day be a national
company, but only acts regionally. It has scattered business activities
in a forum state where a plaintiff chooses to sue for similar conduct
in another state. This might be a case in which the court looks to
burdens, convenience, and reasonableness to find that specific ju-
risdiction is unavailable notwithstanding the corporate registration.
Philips Petroleum v. Shutts is the doctrinal ancestor of this ap-
proach. Recall that a plausible reading of this case was that, as a
matter of due process, personal jurisdiction could be justified as
almost completely synonymous with notice because of the architec-
ture of the “additional procedural protections” that surround ab-
sent class members under Rule 23.281 Registration statutes should
be the analogue of sound class action procedures. They marshal
the doctrinal due process resources of notice and associated proce-
dures to enhance forum-related conduct that, in other contexts,
might fall short of due process.
D. Restoring Notice to a Broader General Jurisdiction Doctrine

The collapse of a broadly available general jurisdiction doc-
trine was a seismic change in personal jurisdiction. Limiting the
general jurisdiction of domestic defendants to just one or two states
drastically changed the presumed access to courts that plaintiffs
previously enjoyed against large companies with a hefty business
presence in many or even all states. An explicit reincorporation of
the concept of notice into general jurisdiction doctrine would allow
the Court to return to a doctrine in which “systematic and continu-
ous” contact with a forum state is sufficient for general jurisdiction
without the straightjacket of a doctrinal category in which the only
systematic and continuous contacts that matter are the decision to

organize under the laws of a state and the decision to locate head-
quarters in a forum.
To see how notice can nudge the doctrine back towards a more
capacious definition of “systematic and continuous,” we need only
to return to the source of that phrase itself, International Shoe. Recall
that notice had a dual significance to the systematic and continuous
concept that International Shoe introduced. If a company like Inter-
national Shoe had systematic and continuous contact with the fo-
rum, then the company would justifiably anticipate a lawsuit in the
forum282—this was the genesis of the emphasis on notice of juris-
diction that would blossom in the late 1950’s through 1980’s. But
more critical (and, perplexingly, mostly forgotten) was the Court’s
observation that “[i]t is enough that [the defendant] has estab-
lished such contacts with the state that the particular form of substi-
tuted service adopted there gives reasonable assurance that the notice
will be actual.”283
Due process notice doctrine connected concerns about the
constitutional viability of substituted service with concerns about as-
serting jurisdiction over entities that lacked the traditional indicia
of physical presence within the territory of a forum state. The ab-
sence of notice from latter day personal jurisdiction analysis, then,
is at least in part responsible for the constricted standard from
Goodyear and Daimler. Notice had disappeared from personal juris-
diction analysis and, along with it, a central justification for valuing
a “systematic and continuous” presence in the forum. This left the
Court with precious few justifications for general jurisdiction aside
from the power theories of sovereignty and territoriality. From this
angle, it’s easy to see how the Court came to view pre-Goodyear gen-
eral jurisdiction as unwieldy and unfair. If territoriality were to
mean anything, it had to mean something more than the idea that
a powerful presence in a state could be sufficient for general juris-
diction, even if that strong presence were replicated across many or
all states within the United States. For the post-Goodyear Court, the
requisite minimum contacts for general jurisdiction must be such
that only a few states could “claim” that entity as “belonging” to the
jurisdiction.
But imagine if the Court were to bring back notice as a central
due process value in personal jurisdiction. The question of power
over a defendant was present in 1945 and it is still present today.

283. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (emphasis
added).
Notice was never a substitute for concerns about the exercise of

state power. But to ignore notice is to take away a central due pro-
cess justification for constitutional limits on the exercise of jurisdic-
tion; a connection that is arguably one of the best fits with the
concept of due process in the first place. Taking pressure off the
sovereignty/territoriality justification allows for a world in which it
is utterly sensible and fair to understand that some entities are so
big that they are, in fact, effectively “present” in a multitude of
jurisdictions.
If, once upon a time, the fear had been that large and diffuse
presence meant that the Court should be worried about the effec-
tiveness of substituted service, this concern has largely disappeared.
In 1945, it probably was still necessary for Justice Stone to explicitly
reassure his readers that substituted service was reliable and that
minimum contacts could be an indicium of that reliability. Today,
the idea that a large corporation might not receive notice of a law-
suit is quaint.284 So quaint, in fact, that one might balk at the idea
of considering that to be a factor in personal jurisdiction analysis.
After all, notice is almost too easily satisfied in most cases. In an
odd reversal from the concerns at the forefront of the Pennoyer era,
it is now natural persons and not non-natural persons over whom
most of the concern about actual notice is focused. This is the role
that minimum contacts would play in a notice-inclusive personal ju-
risdiction analysis: the stronger the defendant’s connection is with
the forum, the less one worries that the defendant cannot be found
or adequately notified.
Under the notice-inclusive approach described above, the
scope of general jurisdiction would be very broad. So broad, in fact,
that it might exceed the reach of pre-Goodyear general jurisdiction,
which was already criticized for its breadth.285 But this would only
be the case in a notice-centered approach, in which the fact of notice
and service would be synonymous with personal jurisdiction. As has
284. When, from time to time, an administrative snafu leads to a defect in

actual notice, it is a startling and headline-catching event. See, e.g., Joyce v. Pep-
sico, Inc., 813 N.W.2d 247 (Wis. App. 2012) (an administrative assistant at Pepsi
mishandled service forwarded from Pepsi’s registered agent for service of process,
Pepsi did not appear in the action and the trial court entered a $1.26 billion de-
fault judgment that it later set aside).
285. See Patrick J. Borchers, The Problem with General Jurisdiction, 2001 U. CHI.
LEGAL F. 119 (2001) (criticizing general jurisdiction doctrine under Perkins and
Helicol as a doctrine that “do[es] not give clear legal rules for contacts-based gen-
eral jurisdiction.”); Mary Twitchell, The Myth of General Jurisdiction, 101 HARV. L.
REV. 610, 629 (1988) (“[C]ourts have no clear concept of what general jurisdiction
is or how it relates to specific jurisdiction.”).
already been noted, this was never the case in American jurispru-
dence, nor should it be. A notice-inclusive approach to general ju-
risdiction would be part of a larger project of reinjecting other core
due process concerns into a general jurisdiction minimum contacts
analysis. Some of these due process concerns, such as considering
the burden and inconvenience to the defendant, have only fallen
away in the post-2011 Supreme Court jurisprudence. Other values,
such as taking seriously the interests of the plaintiff and the inter-
ests of the forum state, have been somewhat dormant for much
longer.
One need not advocate for a broad general jurisdiction doc-
trine, or even a return to the pre-Goodyear and Daimler stasis, in or-
der to take advantage of what notice has to offer. Justice Ginsburg,
leaving small spaces in which to advance more capacious definitions
of “essentially at home,” stopped short of categorical definitions or
categories of entity defendants in both Goodyear and Daimler. These
are the spaces in which core due process concerns like notice might
provide the content to broaden the scope of general jurisdiction in
limited situations, such as when a company announces the formal
existence of a second or even third location for corporate
headquarters.286
CONCLUSION
As we have seen, notice had been a long-time procedural law
traveler with personal jurisdiction, the two tied together by the
mechanics of service of process and by their common and simulta-
neous elevation to due process doctrines under the Fourteenth
(and later Fifth) Amendments to the U.S. Constitution.287 Despite
the role that notice played in shaping personal jurisdiction doctrine
and bolstering the Supreme Court’s analysis, it remained an under-
recognized and under-theorized aspect of personal jurisdiction doc-
trine. At one level, this is not surprising. Nothing in this narrative
should be mistaken for an argument that commentators have got-
ten personal jurisdiction jurisprudence “wrong” for the past cen-
tury; that commentators have somehow overstated the role of
forum contacts, purposeful availment and other purposeful con-
286. Laura Stevens, Keiki Morris, & Katie Honan, Amazon Picks New York City,
Northern Virginia for its HQ2 Locations, WALL ST. J. (Nov. 13, 2018, 12:16 AM),
https://www.wsj.com/articles/amazon-chooses-new-york-city-and-northern-virgi
nia-for-additional-headquarters-1542075336.
287. Andrew D. Bradt, The Long Arm of Multidistrict Litigation, 59 WM. & MARY
L. REV. 1191-92 (2018) (discussing the relationship between the 5th and 14th
Amendments in personal jurisdiction due process analysis).
duct, reasonableness, fairness, convenience, the interests of the

plaintiffs, and, of course, the interests of the forum state, most nota-
bly via sovereignty and territoriality. I am not arguing that these
theories were all a mirage and that I am revealing a hidden-yet-
unified grand theory of personal jurisdiction. Rather, what I hope
to have shown is that notice has been crucial in doctrinal innova-
tion, yet continually underappreciated by both courts and scholars.
A notice-inclusive approach to personal jurisdiction could broaden
the doctrine and ground personal jurisdiction in Fourteenth
Amendment roots that fit better with the individual liberty core of
due process itself.

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74 1 The Long Story of Notice and Personal Jurisdiction

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THE LOST STORY OF NOTICE AND

Notice and personal jurisdiction have long been closely-tied procedural

* Professor of Law, Brooklyn Law School. Thanks to Alexandra Lahav,

2. Using Registration Statutes to Broaden the

This Article examines the curious doctrinal journey of two pro-

in the United States, the procedures for service of process under-

personal jurisdiction has at least some of its pre-Pennoyer origins in

feature of personal jurisdiction jurisprudence,12 but slowly faded

onstrating that notice was used as a tool to expand personal

13. 95 U.S. 714 (1877).

ness. For example, in the leading pre-Pennoyer case of Lafayette Ins.

necessity. At common law, as received from England, the sheriff

B. Personal Jurisdiction and Notice in Pennoyer

Personal jurisdiction and notice were at the heart of Pennoyer,28

Amendment.32 After all, what had “gone wrong” in the original

Amendment as the location for the limits on personal jurisdiction

C. Personal Jurisdiction and Notice from Pennoyer Through

This Section contains a brief summary of the doctrinal devel-

1. The In Rem Cases

his agent.”44 As Justice Bartholomew of the Supreme Court of

fairly straightforward: Harris owed a debt to Balk and Balk owed a

50. 198 U.S. 215 (1905).

3. Corporations and Consent Cases

62. Rhodes, supra note 31, at 394.

statutes.73 But, although consent formed an important doctrinal

4. The End of the Journey to International Shoe

power, sovereignty, and territoriality dominated most of the analy-

interchangeable as a matter of due process and in the underlying

87. 242 U.S. 394 (1917).

structure of personal jurisdiction and notice. The foundational rule

A. International Shoe and the Alternative History of a Minimum

91. Intl. Shoe Co. v. Washington, 326 U.S. 310 (1945).

State could exercise personal jurisdiction over the Missouri-head-

imum contacts, he wrote that the Court is “likewise unable to con-

101. Int’l Shoe, 326 U.S. at 320 (emphasis added).

hand and the Washington state statute that authorized out-of-state

B. Mullane and the New Trajectory of a Distinct Standard for

105. 339 U.S. 306 (1950).

the beneficiaries shared common interests, and thus it was reasona-

109. Id. at 319.

114. 234 U.S. 385 (1914).

just . . . to permit the state to enforce the obligations which appel-

The locus of due process notice doctrine shifted to questions of

A. Early Jurisdictional Expansion in Perkins and McGee: Continued

here, service by Facebook is reasonably calculated to apprise defendant of the mat-

tify Ohio’s exercise of personal jurisdiction over a Filipino

141. Id. at 443–44.

pended to a discussion about personal jurisdiction, which is

notice, the Court still considered notice to be a relevant touchstone

B. From Notice of Suit to Notice of Jurisdiction: Transforming Notice

149. 357 U.S. 235 (1958).

cursory manner, Chief Justice Warren severed it from the analysis

as a more abstract idea of foreseeability. Hanson famously intro-

155. Hanson, 357 U.S. at 253.

personal jurisdiction and notice, and these standards operated in-

The real innovation in World-Wide Volkswagen was to harness

Metal Industries v. Superior Court.166 The question in Asahi was

166. 480 U.S. 102 (1987).

“regular and anticipated flow of products.”172 In these circum-