Rethinking Personal Jurisdiction and Choice of Law in Multistate Mass Torts

Abstract

decision in In re DES Cases-involving New York's national market share approach to recovery for DES-related injuries-and explores the wider implications this decision holds for the law of judicial jurisdiction and its relation to choice-of-law doctrine. DES Cases presented a situation in which the effectuation of a state's constitutionally valid substantive law was jeopardized by the anomalous requirement, parsimoniously construed by the Supreme Court in its stream of commerce product liability cases, of a defendantforum territorial nexus as a sine qua non for the exercise of judicialjurisdiction. In practical terms, this requirement would have precluded proper application of New York law to the claims of New Yorkers injured in New York by denying New York courts personal jurisdiction over any out-of-state defendant who, notwithstanding its participation in the national marketing of DES, did not specifically target the New York market. Judge Weinstein avoided this outcome by fashioning a revolutionary new standard for judicial jurisdiction in DES and perhaps other mass tort cases that focuses on the forum state's interest in vindication of its law, rather than its territorial contacts with the defendant alone. Professor Korn's Essay argues for the soundness of this approach and explores the possible benefits of its broaderbased application to all multistate litigation.