Rules, Standards, and General Jurisdiction

Abstract

Recent Supreme Court decisions have put the constitutional law of personal jurisdiction in flux. The restructuring that the Court has worked on “general jurisdiction”—that, is personal jurisdiction as to a defendant where the defendant has extensive ties to the forum state but those ties do not give rise to the plaintiff’s cause of action—seems to have been motivated at least in part by a desire by the Court to put in place “[s]imple . . . rules” governing jurisdictional questions. But the Court’s assertion that its approach broke new ground by ensconcing a rule-like test along the boundary of personal jurisdiction is erroneous in a few ways. First, while examination of the preexisting landscape reveals some disagreement among lower courts, the fact is that the presence (or absence) of general jurisdiction was predictable across a broad swath of cases. And, while the Court suggested that an absence of general jurisdiction cases from its docket demonstrated a more general lack of reliance on general jurisdiction, a novel empirical examination of the Supreme Court’s general jurisdiction certiorari docket indicates that the better interpretation of the absence of general jurisdiction from the Court’s docket is that overall lower courts were applying the test for general jurisdiction with relative ease and without much conflict. Second, the Court’s new test for general jurisdiction introduces some less, predictable, standard-like elements that were not part of the old test: The new test makes general jurisdiction over a corporate defendant proper only in essence in the corporation’s place of incorporation and principal place of business, and the determination of a corporation’s principal place of business may require comparisons across states and countries that are not always easy to apply or predict. Third, the Court’s new test for general jurisdiction is narrower than the old one, and the narrowing of general jurisdiction will push plaintiffs (who may wish to sue in their home jurisdiction or whether they were injured, or who may wish to avoid piecemeal litigation) toward the vagaries of specific jurisdiction. Moreover, the Court’s new general jurisdiction jurisprudence has already had the ripple effect of discrediting more predictable forms of specific jurisdiction. In short, under the new regime—contrary to the Court’s stated goal—more litigants are likely to face standards as they debate the propriety of personal jurisdiction. The decision in Ford Motor Co. v. Montana Eighth Judicial District Court—a case the Court has added to its docket this Term—may wind up rejecting yet another existing predictable form of specific jurisdiction. Alternative arguments—that the Court did not clearly express—are in any event insufficient to justify a narrower rule for general jurisdiction. The movement toward the narrow regime seems likely motivated by concerns of comity in the context of foreign corporations, but comity should be self-executing, leaving one to question why it should be part of the constitutional analysis. In the context of domestic corporations, the Court’s shift from a broad test to a narrow rule may be motivated, ironically, by the presence of a broad standard governing another area of Court: the constitutional limit on state choice-of-law rules. But this seems like the choice-of-law tail wagging the personal jurisdiction dog. If the Court truly wants to increase the extent to which rules govern personal jurisdiction, it should embrace a broader rule for general jurisdiction. It should also work to reduce the fractures that have characterized specific jurisdiction decisions, and consider generating a sizeable core where the presence (or absence) of personal jurisdiction is relatively predictable.