August 13, 2025
Fuld v. Palestine Liberation Organization, 606 U.S. ____ (2025) (Roberts, C.J.)
Response by Roger H. Trangsrud
Geo. Wash. L. Rev. On the Docket (Oct. Term 2024)
Slip Opinion | SCOTUSblog
Fuld v. PLO and the Ghost of Pennoyer
The Ghost of Pennoyer still haunts our land.
In this short Essay, I will first describe the narrow holding in Fuld1 and its immediate implications. Second, I will discuss from a historical, theoretical, and normative basis why the Supreme Court’s modern personal jurisdiction doctrine is deeply flawed and ultimately incoherent.
In Fuld, American terror victims sued the Palestine Liberation Organization (“PLO”) and the Palestinian Authority (“PA”) under the Anti-Terrorism Act2 (“ATA”) seeking treble damages. Two sets of plaintiffs recovered large jury awards which were trebled by the district court judge. But the Second Circuit reversed on the grounds that the federal district court in New York lacked personal jurisdiction over the defendants.3 The Supreme Court reversed and remanded for further proceedings.
In Fuld, the Supreme Court held that the federal long arm statute that the plaintiffs relied on, the Promoting Security and Justice for Victims of Terrorism Act4 (“PSJVTA”), comports with the Fifth Amendment Due Process Clause because it reasonably ties the assertion of personal jurisdiction over the defendants to actions that involve the United States and implicates important foreign policy matters.
As a practical matter, whether the plaintiffs can collect on their reinstated judgments is not immediately clear. If the PLO and PA have assets in the United States that are not protected by United Nations treaties,5 then the judgments may be readily collectable. If not, then the plaintiffs will need to take their U.S. judgment and seek its enforcement in a foreign court subject to foreign law.
The scope and impact of the Fuld decision is not immediately clear. On matters touching on national security matters, Fuld gives very broad power for Congress to assert personal jurisdiction over foreign defendants; Chief Justice Roberts doesn’t say what the Fifth Amendment limits are but implies the Fifth Amendment may not even require minimum contacts between the alien defendant and the federal government.6 Other than ATA cases, however, there is only one other major federal long arm statute directed at foreign actors—the Foreign Sovereign Immunities Act (“FSIA”).7
As my colleague Bill Dodge has argued in his blog, Fuld may modify personal jurisdiction over government-owned foreign corporations.8 The FSIA defines when a foreign sovereign and majority-state-owned corporations may be sued. The FSIA extends federal personal jurisdiction over all of these defendants if an exception to their customary immunity applies. The lower federal courts have consistently held that foreign sovereigns are not “persons” for purpose of the Fifth Amendment and so derive no protection from suit under that clause.9 But, prior to Fuld, the lower courts had held state-owned corporations were persons protected by the Fifth Amendment and thus jurisdiction extended only to defendants with “minimum contacts” with the U.S. sovereign.10 After Fuld, this protection is lost because Congress did not explicitly limit jurisdiction in such cases. State courts, which are subject to the Fourteenth Amendment, would still presumably be subject to the usual minimum contacts test with that foreign state because they are not covered under the FSIA.
The much bigger unanswered question after Fuld is what effect, if any, it has on the reach of other federal long arm statutes which authorize nationwide service of process including federal antitrust laws,11 federal securities laws,12 RICO,13 interpleader,14 and bankruptcy.15 In these cases, service of process goes forward under Rule 4(k)(1)(c) of the Federal Rules of Civil Procedure and not under 4(k)(1)(a), so federal courts are not subject to the limits that apply to state courts under the Fourteenth Amendment Due Process Clause. The lower federal courts have allowed nationwide jurisdiction in these cases so long as the defendant has minimum contacts with the federal government.16 This test is readily satisfied by all domestic defendants but may be in doubt when alien defendants are sued in U.S. federal courts. Fuld does not directly address this question, but I will return to it later when I discuss the McIntyre case.17
In short, Fuld does not directly make important changes in federal law except in the small number of cases under the ATA or FSIA.
What the Fuld opinion does reveal, however, is that the Supreme Court remains deeply confused about the theoretical and normative reasons behind restrictions on jurisdiction in both Fifth and Fourteenth Amendment cases. To explain this controversial claim requires that we look back in time at the history of these doctrines and the political theory upon which our federal system of government was founded.
The incipient American law of judgments had its origins in the Full Faith and Credit Clause of Article IV of the Constitution. Its predecessor, the Articles of Confederation, also had such a clause, but that clause was of little importance, as Madison wrote in the Federalist Papers.18 This was because there was no federal Supreme Court in the Articles of Confederation to enforce the Clause in the state courts, so those courts remained free to give the Clause whatever interpretation they chose. The new Constitution, of course, did create a Supreme Court which, backed by the Supremacy Clause, had the power to require all state courts to give sister state judgments the same effect. The First Judiciary Act included a Full Faith and Credit Statute19 which obliged state courts to give Full Faith and Credit to judgments of the newly created federal courts as well.
But what was meant by the phrase “Full Faith and Credit”? Some lower state and federal courts held at the beginning of the nineteenth century that it meant merely prima facie evidence of the defendant’s debt to the plaintiff which the defendant was free to contest on the merits a second time.20 But in Mills v. Duryee, the Supreme Court held that the judgment of a sister state rendered with jurisdiction over the parties had to be given the same effect as it would be in the rendering state.21 A uniform law of judgments binding all state and federal courts was now possible.
But when did a state or federal court have jurisdiction over a defendant and when did it not? Neither the Full Faith and Credit Clause of the Constitution nor the Statute spoke to this question. For most of the nineteenth century lower state and federal courts treated this issue as a question of federal common law and, borrowing from the Law of Nations, held that a state or federal court had jurisdiction over a defendant only if the defendant was served with process in the forum or owned property in the forum.22 However understandable, this approach was a mistake.
The relationship between two nation states—like England and France—is fundamentally different than the relationship between two states in a federal union such as Massachusetts and Virginia. This new political structure required a different set of rules, but what they should be was not immediately evident to nineteenth century judges. The U.S. Supreme Court did regard these territorial rules as federal common law, which meant the Court could review and reverse contrary decisions by lower state or federal courts.23 But the rules could not, in any convincing way, be said to be based on the federal Constitution or any federal statute, because neither addressed this question then or indeed today.
It was in this setting that Justice Field in Pennoyer v. Neff famously declared that the territorial rules were required by the Due Process Clause of the Fourteenth Amendment.24 This holding was utterly unsupported by any historical evidence or by the traditional meaning of the phrase “Due Process of Law.” Years ago, I reviewed the Debates of the 39th Congress leading to the adoption of the Fourteenth Amendment and the ratifying debates in the state legislatures. There is not a single mention of the territorial rules of jurisdiction at any point in these debates.25 Nor had the lower state and federal courts prior to Pennoyer asserted that the territorial rules of jurisdiction were based on notions of Due Process of Law.26 Justice Field’s contrary holding in Pennoyer thus rests on no foundation whatsoever.
But if the Due Process Clause is not a proper anchor for federal rules on personal jurisdiction, what is? When Congress legislates on a subject, such as by creating a new private right of action, but neglects to include a federal statute of limitations defining when the claim is timely, federal courts have felt obliged to create a federal common law rule to define the limitations period in order to give proper effect to the federal statute.27 Similarly here, the Constitution and the Full Faith and Credit Statute expressly addressed the effect to be given to state and federal court judgments but neglected to define when those judgments were valid and when they were not. To redress this omission the Supreme Court was obliged to develop what can best be described and defended as federal common law rules.
It is important that federal common law govern the power of state courts over nonresidents for two reasons. First, without it, it would be impossible for the Supreme Court to enforce a uniform law of judgments in our federal system. Second, there is a serious risk that state courts and state legislatures—beholden to local plaintiffs, but not to out of state defendants—will adopt exorbitant theories of personal jurisdiction to the benefit of the former and the disadvantage of the latter.
As is well known, the territorial rules of jurisdiction ultimately proved unsatisfactory due to the rising importance of corporations, interstate commerce, and the automobile. Thus, in 1945 the Supreme Court in International Shoe Co. v. Washington created a new, additional basis for jurisdiction over nonresident defendants—the “minimum contacts” test.28 This test required the defendant to have purposely affiliated with the forum state before that state could exercise judicial authority over the defendant legitimately.
In my view, this new test from International Shoe both comports with our theoretical, normative, and historical notions of lawful sovereign power and can fairly be said to be derived from the Due Process Clause, unlike the territorial rules of jurisdiction. John Locke famously wrote in his Two Treatises on Government: “No one can be . . . subjected to the Political Power of another, without his own Consent.”29 But the ratification of the new Constitution in 1787 created an entirely new form of government and a new legal issue: What was the relationship of a noncitizen to the courts of another state in a federal union? The Supreme Court has held from the dawn of the Republic that restrictions on state power over noncitizens exist, but could cite no Constitutional or statutory text defining what those limits are.
In these circumstances, the Court should have based its limits on notions of “political consent.” Because by definition noncitizens do not traditionally vote, pay taxes, or participate in the political life of other states, how can it be said that the noncitizen consents to the judicial power of other states? In a federal union, the proper answer is that the noncitizen consents by purposefully engaging in actions that affiliate him with that state. Absent such purposeful affiliation, the other state cannot legitimately exercise personal jurisdiction over the noncitizen. Although the Supreme Court has cited other reasons for limits on state court jurisdiction, in the McIntyre case in 2011 a four-Justice plurality appeared to adopt this test of political consent as the normative foundation for the purposeful availment test.30 Justice Ginsburg in her three-Justice dissent suggested in a footnote that the plurality’s opinion appeared to rest on this bedrock notion of political consent, citing four law review articles including the one I wrote in The George Washington Law Review in 1989.31 Indeed, the notion of political consent as the foundation for sovereign power has an even more ancient predicate than John Locke and John Adams32 and his friends in Philadelphia in 1787. At the end of the Crito, Socrates declines his friend’s offer to help him escape from Athens and the death sentence imposed by the Athenian jury. If he fled, Socrates explains, then his Athenian judges could fairly retort he was acting unjustly because he had chosen to affiliate with the City and its government.33 If purposeful affiliation is sufficient for jurisdiction in capital cases, surely it must also be in civil cases.
The Fourteenth and Fifth Amendment Due Process Clauses protect the rights of individual persons, not nation-states or states. In this context, the Fourteenth Amendment could be construed to protect the liberty interest of a person in a federal system to purposely affiliate with other states or not to do so. By not doing so, the person is protected from the exercise of sovereign power by that state.
Instead of consistently adhering to this notion of political consent, the Supreme Court unfortunately has repeatedly stated that its restrictions on state judicial power are also justified by notions of “interstate federalism,” by which the Court seems to mean limiting the power of states to their proper domain—their borders. This is what I mean by the “Ghost of Pennoyer” since the territorial rules in that case were explicitly based on the notion of assuring comity between different sovereign powers—not the rights of individual persons. The Court has repeatedly cited this notion in its opinions such as Hanson v. Denckla34 in 1958 and World-Wide Volkswagen35 in 1980. Two years after the Volkswagen decision, however, Justice White, the majority author in World-Wide Volkswagen, withdrew the interstate federalism justification for the Court’s holding in Volkswagen in the Insurance Corp. of Ireland36 case, stating that the Due Process Clause is a protection of individual liberty interests and not state’s rights. It could not be a protection of state’s rights, he reasoned, because if it was, then the defense of lack of personal jurisdiction could not be waived by a defendant, as individuals cannot waive the rights of states.
Still, the Ghost has not been fully laid to rest. Interstate federalism continues to be cited by the Court as part of its personal jurisdiction analysis in cases such as Bristol-Meyers Squibb,37 the Ford Cases,38 and now Fuld. This is all a remarkable example of the Court ignoring its own precedent. Our newest Justice, Justice Jackson, in her concurrence in Mallory, felt obliged to remind her colleagues that their continued reference to “interstate federalism concerns” must be understood to rest ultimately upon “the individual liberty interest” of the defendant and not state’s rights, citing the Insurance Corp. of Ireland case.39
In Fuld, Chief Justice Roberts detailed the Court’s reliance on interstate federalism for its restrictions on state judicial power, but then correctly asserted that that doctrine is irrelevant in Fuld because it was a case in federal court against alien defendants governed by the Fifth Amendment, and thus the proper power of one state versus another was irrelevant. Sadly, all this implies that interstate federalism remains an important part of the Court’s Fourteenth Amendment law for many of the Justices on the Court today.
Fuld correctly concludes that the test for personal jurisdiction in federal court when relying on a federal long arm statute is different than the relevant test when a state or federal court is relying on a state long arm statute. Although Chief Justice Roberts does not explicitly adopt the minimum contacts test with the federal government in such cases, he seems to endorse it implicitly. This is the test that the lower federal courts have followed in such cases.40 It follows that domestic defendants who all have minimum contacts with the federal government cannot successfully object to personal jurisdiction when served pursuant to a federal long arm statute.
Fuld also provides powerful ammunition for the argument that in federal class actions or in Fair Labor Standards Act collective actions,41 the jurisdiction of federal courts over absent plaintiff class members should be governed by the question of minimum contacts with the federal government. If accepted, this would allow nationwide class actions to be pursued in federal court, but perhaps not in state court.
But what about alien defendants such as the English manufacturer in McIntyre? In that case, the plurality found there were insufficient contacts between the defendant and the State of New Jersey for its state courts to exercise jurisdiction over the defendant. But the plurality left open the possibility that a federal court in New Jersey might have jurisdiction because the relevant test in that case might be minimum contacts with the federal government.42 If Fuld is later construed to mean that in all cases where an alien corporation is sued by a domestic plaintiff in federal court the relevant constitutional test is found in the Fifth Amendment, this could greatly expand the ability of U.S. plaintiffs to sue foreign manufacturers even for products sold through U.S. distributors. After International Shoe, state legislatures reacted by adopting state long arm statutes to benefit local plaintiffs and expand the extraterritorial reach of their state courts. After Fuld, the U.S. Congress may decide to pass federal long arm statutes which will allow U.S. plaintiffs to sue alien manufacturers in cases such as McIntyre.
Two concluding points about Fuld. In his lengthy concurrence, Justice Thomas investigated whether the phrase Due Process of Law in the Fifth Amendment, as understood in 1790, was intended as a restriction on the jurisdiction of federal courts and found no historical or textual evidence for such a conclusion.43 For the reasons set out above, if the Court asks the same question about the Due Process Clause of the Fourteenth Amendment in 1868, it will find there is no historical or textual evidence for asserting that Clause was intended to restrict state court jurisdiction.
In the same concurrence, Justice Thomas persuasively asserted that the Fifth Amendment Due Process Clause was intended to protect persons, not sovereigns.44 A similar analysis of the Fourteenth Amendment will reach the same conclusion, thereby demonstrating that the notion of interstate federalism should have no home in cases judged by that Amendment either.
Still, the Ghost of Pennoyer, like that of Hamlet’s father, continues to walk among us.45 Will it ever be laid to rest?
Roger H. Trangsrud is the James F. Humphreys Professor of Complex Litigation and Civil Procedure at the George Washington University Law School. Professor Trangsrud joined the faculty of the law school in 1982, where he has taught civil procedure, federal jurisdiction, remedies, and complex litigation. His writings are primarily in the fields of complex litigation and jurisdiction.
Recommended Citation
Roger H. Trangsrud, Fuld v. PLO and the Ghost of Pennoyer, Geo. Wash. L. Rev. On the Docket (Aug. 13, 2025), https://www.gwlr.org/fuld-ghost-of-pennoyer.
References
[1] 145 S. Ct. 2090 (2025).
[2] 18 U.S.C. § 2333(a).
[3] 82 F.4th 74 (2d Cir. 2023).
[4] 18 U.S.C. §§ 2334(e)(1), (5).
[5] See Convention on the Privileges and Immunities of the United Nations art. 4, Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 16 (protections for Representatives of Members to U.N. organs when exercising official functions); Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations art. 5, June 26, 1947, 61 Stat. 3416, 11 U.N.T.S. 11 (similar).
[6] 145 S. Ct. at 2103–05.
[7] 28 U.S.C. § 1330(b).
[8] William S. Dodge, Fuld’s Implications for the FSIA (and Other Federal Statutes), Transnat’l Litig. Blog (July 10, 2025), https://tlblog.org/fulds-implications-for-the-fsia-and-other-federal-statutes/ [https://perma.cc/7MUL-RK3N].
[9] Id.
[10] Id.
[11] 15 U.S.C. § 22.
[12] 15 U.S.C. § 78aa.
[13] 18 U.S.C. § 1965.
[14] 28 U.S.C. § 1335.
[15] Fed. R. Bankr. P. 7004(d).
[16] See, e.g., Luallen v. Higgs, 277 Fed. App’x 402, 404 (5th Cir. 2008) (citing Busch v. Buchman, Buchman & O’Brien, Law Firm, 11 F.3d 1255, 1258 (5th Cir. 1994)).
[17] 564 U.S. 873 (2011).
[18] The Federalist No. 42, at 287 (James Madison) (J. Cooke ed. 1961).
[19] Act of May 26, 1790, ch. 11, 1 Stat. 122.
[20] Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 861 (1989).
[21] 11 U.S. (7 Cranch) 481, 484–85 (1813).
[22] See Trangsrud, supra note 20, at 857–58.
[23] See Trangsrud, supra note 20, at 868–69.
[24] 95 U.S. 714 (1877).
[25] See Trangsrud, supra note 20, at 878.
[26] See Trangsrud, supra note 20, at 877.
[27] See, e.g., Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 146–48 (1987).
[28] 326 U.S. 310 (1945).
[29] John Locke, Two Treatises of Government 348 (Peter Laslett ed., 2d ed. 1967).
[30] J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879 (2011) (plurality opinion).
[31] Id. at 901 n.4 (Ginsburg, J., dissenting) (citing Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 884–885 (1989)).
[32] Letter from John Adams to James Sullivan (May 26, 1776), reprinted in 9 C. Adams, The Works of John Adams 375 (1854).
[33] Plato, Euthyphro, Apology, Crito 61–62 (F. Church trans., R. Cummings ed. 1948).
[34] 357 U.S. 235, 251 (1958).
[35] 444 U.S. 286, 292 (1980).
[36] Ins. Corp. of Ire. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 n.10 (1982).
[37] Bristol-Myers Squibb Co. v. Superior Court, 582 U.S. 255, 263 (2017).
[38] Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 368 (2021).
[39] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 147 (2023) (Jackson, J., concurring).
[40] See, e.g., United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) (stating general principles); United States v. HCA Health Servs. of Okla., Inc., No. 09-CV-0992, 2011 WL 4590791, at *2 (N.D. Tex. Sept. 30, 2011) (False Claims Act); Donovan v. Smart Green Solar LLC, No. 24-12232, 2025 WL 695600, at *2 (D. Mass. Jan. 30, 2025) (ERISA).
[41] 29 U.S.C. § 216(b)
[42] 564 U.S. 873, 885–86 (2011) (plurality opinion).
[43] 145 S. Ct. 2090, 2119 (Thomas, J., concurring in the judgment).
[44] Id. at 2111.
[45] William Shakespeare, Hamlet act 1, sc. 5, l.10.
