The international community has been struggling with questions of who should regulate the Internet and how, but little consensus has emerged. For the United States, consideration of the pros and cons of the alternative jurisdictional approaches to e-commerce and cyberspace is complicated by an overlay of constitutional law. While the rest of the world considers the policy implications of a country of origin versus a country of destination approach, the United States is wrestling with what constitutes "purposeful availment" under the Due Process Clause.
The Supreme Court has never squarely considered what limits the Fifth Amendment imposes on assertions of personal jurisdiction in federal court. Commentators have, for the most part, assumed that the limits imposed by the Fifth Amendment are comparable to those imposed on the states by the Fourteenth Amendment. This Article examines that assumption and concludes that the limits imposed by the Fifth Amendment are not comparable to those imposed by the Fourteenth. Specifically, it argues that the Fifth Amendment should not be understood to include the requirement of purposeful availment8 and that jurisdiction should be constitutional on the basis of effects in the United States.
This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level.
Wendy Collins Perdue, Aliens, the Internet, and "Purposeful Availment",: A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. L. Rev. 455 (2004)