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Territorial jurisdiction, Territorial jurisdiction and venue, Forum-reasonableness, Pure jurisdiction, Mere Venue


Civil Procedure | Courts | Jurisdiction | Litigation


"Jurisdiction must become venue," concluded Professor Albert A. Ehrenzweig. Perhaps it should. More certain is the proposition that comprehending jurisdiction requires mastering its relationship with venue. Such conclusions lie at some distance, however, bringing to mind that every journey must begin with a single step. A solid first step takes me to the subject of this Symposium, the Restatement (Second) of Judgments. This, put simply, is a masterful work. Even while still in tentative drafts, it proved an invaluable aid to judge, practitioner, teacher, and student. Yet in a work of such scope, anyone could find grounds for differing.

At the outset the Restatement Second states "the requirements that must be met before a court properly may undertake [a civil] adjudication": notice, subject-matter jurisdiction, and territorial jurisdiction. In particular, adopting a view popular with academics, it requires that the exercise of territorial jurisdiction be "reasonable" as well as accord with certain nonconstitutional restrictions. Herein I shall fault this approach to territorial jurisdiction and also its inadequate attention to venue.

In Part I of this Article, I shall first show that under the cases territorial jurisdiction currently has two cumulative components of constitutional stature: power and reasonableness. Then I shall note the intriguingly close ties of the reasonableness requirement to venue; exploring and defining that relationship will incidentally confirm the fruitfulness of considering self-imposed limitations on jurisdictional reach as rules of venue. Thus this Article reformulates the subject of territorial authority to adjudicate by relegating all nonconstitutional restrictions on geographic selection of forum into that third category: venue. I believe that this tripartite reformulation permits a clear and suggestive statement of the current law. And it induces an attractive vision of the future--the demise of power, the emergence of reasonableness as the sole constitutional test for territorial authority to adjudicate, and the intelligent use of venue to narrow the choice of forum. Having elaborated my proposed approach, I can in Part II briefly review my differences with the Restatement Second. I contend that its treatment of this area neither accurately states the current law nor adequately frames the relevant concepts so as to facilitate reform.

Publication Citation

Published in: Cornell Law Review, vol. 66, no. 3 (March 1981).