In Burnham v. Superior Court, 495 U.S. 604 (1990), the U.S. Supreme Court unanimously held that a state may constitutionally exercise personal jurisdiction over a nonresident who is personally served with process while voluntarily present in the forum state, even where the claim is wholly unrelated to his activities there. This is the modern authority for what your professor will call transient jurisdiction or tag jurisdiction — you get "tagged" with service while standing in the state, and that alone is enough. The catch, and the reason Burnham is taught at all, is that the Justices agreed on the outcome but split 4-4 (with Kennedy refusing to pick a side) on the far more important question: why is tag jurisdiction constitutional after International Shoe told us jurisdiction depends on "minimum contacts" and "fair play and substantial justice"?

If you only remember one thing about Burnham, remember this: it is the case where Scalia and Brennan fight over whether tradition alone satisfies due process. The result is boring; the disagreement is the entire point.

What is the case summary for Burnham v. Superior Court?

Burnham v. Superior Court of California, 495 U.S. 604 (1990), was decided by the United States Supreme Court. It arose from a California divorce proceeding and produced no majority opinion. All nine Justices agreed that California could constitutionally assert personal jurisdiction over Mr. Burnham, a New Jersey resident, because he was personally served while physically present in California. But the Court fractured into two four-Justice camps — a plurality led by Justice Scalia and a concurrence led by Justice Brennan — over the constitutional basis for that conclusion. Justice Kennedy declined to fully join either rationale. Because there is no majority reasoning, Burnham is a case you learn for its competing theories, not for a single controlling rule of analysis.

What were the facts of Burnham v. Superior Court?

Dennis Burnham and his wife, both residents of New Jersey, decided to separate. His wife moved to California with their children. The two had agreed she would file for divorce on grounds of "irreconcilable differences," but Mr. Burnham later filed for divorce in New Jersey on grounds of desertion and did not serve his wife. His wife then filed for divorce in California.

A few months later, Mr. Burnham traveled to California — partly on business and partly to visit his children. While he was in the state, and after briefly visiting the children, he was personally served with a California court summons and his wife's divorce petition. He then returned to New Jersey. The only connection between Mr. Burnham and California, for purposes of this lawsuit, was that he happened to be physically present in the state when the process server handed him the papers. He had no continuous ties to California relevant to the divorce.

The legally significant fact is stark and clean: service occurred inside the forum state, on a defendant who was voluntarily (not fraudulently lured) present, in a case unrelated to anything he did there. That isolates the transient-jurisdiction question perfectly.

What was the procedural history of Burnham v. Superior Court?

Mr. Burnham made a special appearance in the California court to quash service of process, arguing that California lacked personal jurisdiction over him because he lacked the minimum contacts with California required by International Shoe. The California Superior Court denied his motion. The California Court of Appeal denied his petition for a writ of mandate, holding that physical presence and personal service in the state were sufficient to establish jurisdiction. The U.S. Supreme Court granted certiorari and affirmed.

What was the issue in Burnham v. Superior Court?

Does the Due Process Clause of the Fourteenth Amendment permit a state to exercise personal jurisdiction over a nonresident defendant who is personally served with process while temporarily present in that state, when the lawsuit is unrelated to his activities within the state — or does International Shoe's minimum-contacts requirement bar jurisdiction absent such contacts?

What did Burnham v. Superior Court hold?

Yes — the Supreme Court held that personal service on a defendant who is physically present in the forum state is, by itself, a constitutionally sufficient basis for personal jurisdiction, even for an unrelated claim. California could constitutionally exercise jurisdiction over Mr. Burnham. The judgment was unanimous.

The rule for your outline is this: Physical presence plus in-state personal service (transient or "tag" jurisdiction) is a valid, independent basis for general personal jurisdiction over a natural person and does not require a separate minimum-contacts analysis. This is a form of general jurisdiction — the defendant can be sued in that state on any claim, related or not. Note carefully what Burnham did not decide: it did not extend tag jurisdiction to corporations, and it did not address service obtained by fraud or force (which courts have long refused to honor).

What was the reasoning in Burnham v. Superior Court?

This is where the case earns its place in your casebook. There is no majority reasoning — there are two competing four-Justice rationales.

Justice Scalia's plurality: tradition satisfies due process

Justice Scalia (joined by Rehnquist, Kennedy in part, and White) reasoned that jurisdiction based on in-state service is one of the continuing traditions of our legal system — a rule that has been "firmly approved by tradition and still favored" since before the founding and throughout American history. For Scalia, that historical pedigree is what due process protects. A jurisdictional rule that has been continuously and universally accepted cannot be "unfair." He rejected the idea that International Shoe's minimum-contacts test governs every jurisdictional situation. In Scalia's view, Shoe created a test for reaching absent defendants — it did not abolish the ancient, independently valid basis of serving a defendant who is right there in the state. Tradition does the work; no case-by-case fairness inquiry is needed.

Justice Brennan's concurrence: Shoe governs everything, and tag service passes

Justice Brennan (joined by Marshall, Blackmun, and O'Connor) agreed jurisdiction was proper but rejected Scalia's method entirely. Brennan argued that International Shoe's fairness analysis applies to all assertions of personal jurisdiction — tradition alone cannot immunize a jurisdictional rule from constitutional scrutiny. "Unreflective" tradition is not enough; even long-standing practices must satisfy contemporary notions of fair play and substantial justice. But applying that test, Brennan concluded that transient service does satisfy due process: a defendant who voluntarily visits a state enjoys its benefits and protections (its roads, police, courts), can reasonably anticipate being sued there, and suffers only slight inconvenience given modern travel and pretrial procedures. So Brennan reached the same result through the opposite door — Shoe controls, and tag jurisdiction survives it.

Justice Kennedy and Justice White

Justice Kennedy concurred but declined to fully embrace either camp's broadest reasoning. Justice White wrote separately, noting that the transient-jurisdiction rule was too widely accepted to be struck down. The upshot: because neither the Scalia nor the Brennan rationale commanded five votes, Burnham established the result but left the constitutional theory unresolved.

Why does Burnham v. Superior Court matter?

Burnham sits at the tail end of the personal-jurisdiction unit, after Pennoyer v. Neff (the old territorial-power regime), International Shoe (minimum contacts), and the specific-jurisdiction line (World-Wide Volkswagen, Asahi). Its doctrinal role is to answer a question those cases leave open: after Shoe supposedly replaced Pennoyer's physical-power theory with a contacts-and-fairness theory, does the old rule that presence-plus-service confers jurisdiction still survive? Burnham says yes — the ancient basis lives on.

But its real teaching value is jurisprudential. Burnham is the cleanest 1L example of a live debate in constitutional interpretation: does tradition, standing alone, define what process is "due," or must every rule — however old — be re-justified under a modern fairness standard? Scalia's originalist/traditionalist method versus Brennan's evolving-standards method is the whole ballgame. Your professor teaches Burnham to make you argue that fight.

Cold-call prep: how to survive Burnham

Expect your professor to skip the facts fast and drive straight at the split. Here are the questions you will actually get:

• "Why was California allowed to hale Mr. Burnham into court?" — Because he was personally served with process while physically present in California. In-state service on a present defendant is an independent basis for general jurisdiction. Don't reach for minimum contacts — that's Burnham's argument, and it lost.
• "Did the Court apply International Shoe?" — Trap. Answer: it depends which opinion you read. Scalia's plurality said Shoe does not govern presence-based jurisdiction — tradition does. Brennan's concurrence said Shoe governs everything but transient service passes the fairness test. Flagging that there is no majority is exactly what wins the exchange.
• "What is Scalia's theory of due process here?" — Historical pedigree. A jurisdictional rule continuously accepted throughout our legal tradition cannot violate due process; the tradition itself is the constitutional test.
• "What is Brennan's objection?" — Tradition alone isn't enough; "unreflective" acceptance can't shield a rule from scrutiny. Every assertion of jurisdiction must satisfy contemporary fair-play-and-substantial-justice, and this one does.
• "If Scalia and Brennan reach the same result, why does the split matter?" — Because the method dictates the outcome of the next case. Under Scalia, any traditionally accepted rule is safe from challenge. Under Brennan, even old rules can be struck down if they've become unfair. Method is the whole point.
• "Would the result change if Burnham had been tricked into entering California to be served?" — Likely yes. Courts have long refused to enforce jurisdiction based on service obtained by fraud or force. Burnham was voluntarily present, which is essential to the holding.
• "Does this apply to corporations?" — Burnham involved a natural person and did not decide the corporate question. Don't overclaim.

The move that impresses: state the unanimous result in one sentence, then immediately pivot to "but there's no majority rationale, and here's the Scalia-Brennan disagreement." That signals you understand what the case is for.

How does Burnham show up on the exam?

Burnham is a gift on an issue-spotter because it slots in cleanly. The fact pattern will hand you a nonresident individual defendant who lacks meaningful contacts with the forum but who was physically present and personally served there — often while traveling, visiting, or attending something unrelated. Watch for that trigger: the defendant is served in-state.

The trap: weaker students see "no minimum contacts" and conclude there's no jurisdiction. That is wrong. Under Burnham, in-state personal service is an independent basis — you never even reach the contacts analysis for the transient-service question. Spot the tag, cite Burnham, and note the result is settled even though the theory isn't.

The way to earn the top points: after concluding jurisdiction is proper, show you understand the split — "Under Scalia's plurality, presence-plus-service is valid by tradition without any contacts inquiry; under Brennan's concurrence, the same result follows because voluntary presence satisfies Shoe's fairness test." Then watch for the escape hatches the exam plants: was the defendant fraudulently lured into the state (no jurisdiction), was service on a corporation rather than a person (Burnham doesn't reach it), or was the defendant only passing through in transit in a way some jurisdictions treat as immune? Naming the limits is what separates an A from a B.

What cases are taught with Burnham v. Superior Court?

• Pennoyer v. Neff (1878) — the origin of the physical-power/presence theory of jurisdiction that Burnham's tag rule descends from.
• International Shoe Co. v. Washington (1945) — the minimum-contacts and fair-play-and-substantial-justice framework that Burnham had to reconcile with the old presence rule; the source of the Scalia-Brennan dispute.
• Shaffer v. Heitner (1977) — held that all assertions of jurisdiction must be evaluated under Shoe's standards; Brennan leans on this, and Scalia distinguishes it as not reaching in-state personal service.
• World-Wide Volkswagen v. Woodson (1980) and Asahi Metal v. Superior Court (1987) — the specific-jurisdiction and fairness-factor cases you'll contrast with Burnham's general, presence-based approach.

Frequently asked questions about Burnham v. Superior Court

See the FAQ section below for quick answers on the holding, the split, and how tag jurisdiction works.