Nationwide Service of Process under the Comprehensive Environmental Response, Compensation, and Liability Act: The Need for Effective Fairness Constraints

Under the 1986 amendments to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), nationwide service of process is allowed. Using CERCLA as an example, it is argued that there should be constitutional constraints on the federal courts' assertions of personal jurisdiction over distant defendants when jurisdiction is sought under statutes allowing nationwide service of process. Both the Fourteenth and Fifth Amendments to the US Constitution impose fairness standards in determining whether a defendant can be required to litigate in a particular forum. The majority of federal courts examine a defendant's contacts with the nation as a whole, generally on the basis of a sovereignty analysis. A proposed fairness test would consider the nature and extent of the defendant's contacts with the forum and the inconvenience of the forum to the defendant. This 2-pronged Fifth Amendment analysis provides constitutional protection to CERCLA defendants while ensuring that important federal interests are not sacrificed.