Washington Law Review


The past decade of development by the United States Supreme Court of constitutional law related to jurisdiction has been one of amazingly swift occurrences. Although progress in the area has traditionally been glacial, the Court has produced a consistent flow of opinions over the last ten years. With the flow has come a virtual flood of commentary. A consensus is emerging among scholars, perhaps shared by some members of the Court, that the current developmental framework for judicial jurisdiction dating from International Shoe Co. v. Washington may be ripe for revamping, and that the process may produce a new framework. I will not join that debate except to comment on the excellence of the ideas expressed, and to voice my own hope that some philosophical advance is at hand. Indeed, if one looks at what the cases of the past decade have done, as opposed to what they have said, it is possible that the advance has already taken place. As I reviewed the cases of the past decade, however, I was perplexed by the directions the various members of the Court were taking. I thought that some of the justices' opinions were inconsistent, and were at odds with their votes in cases where they had not written opinions. I also thought it possible that subtle changes were occurring, in result if not in rationale. The intent of this article is to examine the voting records of the individual justices in the jurisdiction cases. It will emphasize their written opinions, examining their expressed preferences and philosophies, and the nature of the votes they cast in the cases, regardless of their written opinions or lack thereof. I hope that the pattern that emerges will provide a means of predicting the future behavior of the Court. My analysis will also reveal the current status of the law on these points.

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