New Essay on the Future of Fuld v. PLO

I have expanded on my prior TLB posts on Fuld v. PLO, including a series of posts I wrote last summer critiquing the originalist case for unlimited personal jurisdiction under the Fifth Amendment, in a new essay that is forthcoming in the Yale Law Journal Forum and is now available on SSRN.  In this new essay, I try to build a more affirmative roadmap for what I think courts should do in grappling with the questions left open by Fuld. Here is the abstract:

The Supreme Court purported to say very little in Fuld v. PLO, but it implied a lot. The opinion can be read to support two diametrically opposed approaches to the Fifth Amendment’s due process limits on personal jurisdiction: that those limits largely mirror the Court’s core insight in International Shoe Co. v. Washington, or that there are no limits. After describing these two potential readings, this Essay argues for the first: that like the Fourteenth Amendment, the Fifth Amendment requires an intentional nexus to the forum that makes the exercise of personal jurisdiction reasonable. Reasonableness undergirds much of the Court’s reasoning in Fuld, avoids disrupting settled expectations, and preserves a valuable judicial check on the excesses of the political branches. The Essay concludes by suggesting how lower courts might implement Fuld going forward — and how, by focusing on the core insight that underlies International Shoe, they might also help shed new light on the Fourteenth Amendment personal jurisdiction analysis as well.