Personal Jurisdiction’s Aberrant Theory of Consent

Consent has been a pillar of personal jurisdiction doctrine at least since Pennoyer. The Supreme Court recently strengthened this pillar by deeming a corporate registration statute to constitute consent. Consent to submit to a court’s adjudicatory power can now be unintentional, based on inaction, is irrevocable, does not have to be informed, is all-or-nothing, and is blind to power inequalities. Failing to say “no” at the right time in the right way means “yes.” Such a theory of consent clashes with what consent means elsewhere.

In other contexts, we are reminded that “no means no,” the “absence of no does not mean yes,” that “consent is active, not passive,” and is “always revocable.” This discordance leads to the odd spectacle where the merits of a sexual harassment lawsuit might turn on whether the plaintiff’s consent to sexual contact was freely given and informed, while the plaintiff’s prior consent to a derogation clause that conclusively establishes personal jurisdiction was anything but that. This Article examines the ever-widening gap between what consent means in the context of personal jurisdiction and elsewhere. It argues for a partial realignment of personal jurisdiction’s theory of consent with contemporary sensibilities. Personal jurisdiction doctrine does not have to ape every twist and turn of how modernity conceives consent.

But neither can personal jurisdiction ignore entirely how people out there in the world think about consent.