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University of Baltimore Law Forum

Abstract

A century ago, personal jurisdiction largely hinged on a simple litmus test: the defendant’s presence in the forum state. The issue of personal jurisdiction gained prevalence as the nation evolved from its earlier days of detached, semi-sovereign entities, whose citizens rarely interacted, to a nation where interstate commerce had increased, with interstate litigation growing correspondingly. In Pennoyer v. Neff, the Supreme Court of the United States effectively limited a state’s jurisdiction to persons physically present within its territorial borders. However, in today’s increasingly interconnected world, physical presence appears to represent an anachronism set in the post-Civil War, horse-and-buggy America of Pennoyer.

Since then, long-arm jurisdiction has devolved into a confused “state of flux, if not chaos . . . a ‘mess of state long-arm legislation and vacillating Supreme Court jurisprudence.’” Personal jurisdiction jurisprudence has become a latter-day rule against perpetuities, befuddling litigators and courts alike. This befuddlement is compounded by the rapid evolution of technology. Technological progress generates jurisdictional wrinkles at a pace that consistently outstrips the ability of the legal profession to deal with them. In recent years, the complexity of those issues has increased exponentially by the development of cyberspace; actors a world away can exert influence in Maryland with the touch of a keystroke. Of course, at the headquarters of the National Security Agency (“NSA”), actors in Maryland can return those intrusions with interest. However, for counsel representing clients other than the NSA, the issue of what level of “cyber” or “virtual” activity suffices to allow Maryland to assert jurisdiction over an actor is one with immediate repercussions.

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