In 1980 in World-Wide Volkswagen v. Woodson, the Supreme Court described personal jurisdiction as "an instrument of interstate federalism." Two years later in Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee, the Court back-pedaled and explained that personal jurisdiction "represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Then, in 1985 in Phillips Petroleum v. Shutts, the Court explained that the purpose of personal jurisdiction is "to protect a defendant from the travail of defending in a distant forum." Three years later in Van Cauwenberghe v. Biard, the Court stated that personal jurisdiction does not entail a right to be protected from the burdens of trial, but entails only a right not to be "subject to the binding judgments" of particular places.
The Court's struggle in the area of personal jurisdiction has reached the point that the Court is now having difficulty generating majority opinions. The reason for the Court's difficulty in this area appears to be that personal jurisdiction is really a solution in search of a problem. Although the Court has thought "the problem" to be sufficiently important to warrant its hearing thirteen personal jurisdiction cases in the past fourteen years, it has never explicitly defined the problem. To use the metaphor of Ludwig Wittgenstein, the Court seems to assume that we all know the characteristics of the beetle in the box of personal jurisdiction. Yet, because the Court has never actually described the "beetle," it seems subject to infinite change.
This article analyzes and criticizes the two problems supposedly solved by personal jurisdiction. Section I describes the problem of political legitimacy and Section II examines a commerce clause analogy as another justification for constitutional limits on state adjudicatory authority. Section III then examines several alternative problems for which personal jurisdiction may be the solution. These problems are practical ones and reflect the premise that personal jurisdiction may be nothing more than what actual litigants have always thought it was, namely, a doctrine to limit a plaintiff's choices of possible fora.
Wendy Collins Perdue, Personal Jurisdiction and the Beetle in the Box, 32 B.C. L. Rev. 529 (1991)