William J. Brennan, Jr.

“ Notwithstanding the nimble gymnastics of Justice SCALIA's opinion today, it is not faithful to our decision in Shaffer.
Tradition, though alone not dispositive, is of course relevant to the question whether the rule of transient jurisdiction is consistent with due process. [7] Tradition is salient not in the sense that practices of the past are automatically reasonable today; indeed, under such a standard, the legitimacy of transient jurisdiction would be called into question because the rule's historical "pedigree" is a matter of intense debate. ”

“ Subject only to the doctrine of forum non conveniens, an out-of-state plaintiff may use state courts in all circumstances in which those courts would be available to state citizens. Without transient jurisdiction, an asymmetry would arise: A transient would have the full benefit of the power of the forum State's courts as a plaintiff while retaining immunity from their authority as a defendant. ”

“ The court reasoned that it could not "undertake to redress every wrong that may have happened in any part of the world, [merely] because the parties, plaintiff or defendant, may afterwards happen to be within [the court's] jurisdiction." Id., at 327-328. Similarly, the Pennsylvania Supreme Court declared it "the most important principle of all municipal law of Anglo-Saxon origin, that a man shall only be liable to be called upon to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage." ”

“ In Shaffer, we stated that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." 433 U.S., at 212, 97 S.Ct., at 2584 (emphasis added) . The critical insight of Shaffer is that all rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process. No longer were we content to limit our jurisdictional analysis to pronouncements that " [t] he foundation of jurisdiction is physical power," McDonald v. ”

“ Present-day notions of fair play and substantial justice constitute the first factor") ; id., § 28, Comment b, at 41 ("The Supreme Court held in Shaffer v. Heitner that the presence of a thing in a state gives that state jurisdiction to determine interests in the thing only in situations where the exercise of such jurisdiction would be reasonable. . . . It must likewise follow that considerations of reasonableness qualify the power of a state to exercise personal jurisdiction over an individual on the basis of his physical presence within its territory") ”

“ Out-of-staters do not vote in state elections or have a voice in state government. We should not assume, therefore, that States will be motivated by "notions of fairness" to curb jurisdictional rules like the one at issue here. The reasoning of Justice SCALIA's opinion today is strikingly oblivious to the raison d'etre of various constitutional doctrines designed to protect out-of-staters, such as the Art. ”

“ See Maltz, Sovereign Authority, Fairness, and Personal Jurisdiction: The Case for the Doctrine of Transient Jurisdiction, 66 Wash.U.L.Q. 671, 698-699 (1988) .
The potential burdens on a transient defendant are slight. " ' [M] odern transportation and communications have made it much less burdensome for a party sued to defend himself' " in a State outside his place of residence. Burger King, supra, 471 U.S., at 474, 105 S.Ct., at 2183, quoting McGee v. International Life Ins. ”