If Corporations are People, Why Can't They Play Tag?

The Supreme Court’s decision in Burnham v. Superior Court—despite producing a splintered vote with no opinion garnering a majority of the Court—made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient, or “tag,” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and once was the primary method for determining whether an out of state defendant could be hauled into a court. While Burnham held that tag jurisdiction remained constitutionally valid, the court split on the justification for allowing this form of jurisdiction, with four Justices approving the practice under an originalist methodology, and four others approving it based on contemporary notions of fairness.

This Article argues that both the originalist and fairness based tests proposed in Burnham support allowing the assertion of tag jurisdiction over corporations and other entities through instate service on their officers. This Article shows that at the time of the Fourteenth Amendment’s ratification, corporations were often subject to personal jurisdiction based only on their officers’ physical presence in a forum when served with process. The Article also demonstrates that the fairness considerations discussed in Burnham apply with even more force to modern corporations because of their greater ability to take advantage of the protections and services offered by states outside of their own. Finally, the Article examines how the application of tag jurisdiction to corporate entities would be in accord with general trends in constitutional law affording corporations rights equivalent to those of natural persons.