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Tuesday, May 30, 2017

SCOTUS OT16 Symposium: A Narrow Decision in BNSF

Thanks to Howard for the invitation! As it happens, my most-looked-for opinion was released this morning, in BNSF Railway Co. v. Tyrrell. I'd written an amicus brief in the case, leaving the Daimler issue to one side; and with Daimler already on the books, I think the Court basically got it right. (I might save a few quibbles for a future post.)

But what's most noteworthy about the opinion is what it didn't address. As Cassandra and Howard note, the respondents lose under the Court's reading of Daimler. The respondents also argued that, notwithstanding Daimler, Congress had authorized Montana's personal jurisdiction; Part II of the opinion explains in detail why that isn't so. That holding let the Court skip another issue briefed by the parties, namely whether Congress can license state personal jurisdiction when it wants to.

BNSF argued that it can't. The Fourteenth Amendment's Due Process Clause limits state personal jurisdiction, and Congress can't license what the Constitution forbids. That would have been an easy way to dispose of the issue, without the Court's having to dig through the historical record of the 1910 amendments to the Federal Employers' Liability Act. But the Court restricted itself to the statutory ground, leaving the constitutional one for another day.

This was a good issue for the Court to avoid. Whether Congress can license state personal jurisdiction is actually much harder than it seems. The existing limits on state PJ are enforced through the Due Process Clause, but they don't necessarily come from the Due Process Clause. As I've argued before, the Court in Pennoyer v. Neff drew these standards from general and international law, of which federal and state courts in the days of Swift v. Tyson could each take their own view. Over time, courts lumped these substantive standards for personal jurisdiction together with the means for their enforcement, treating the whole topic as something to be mined from the depths of due process. But if the standards don't come from the Constitution, and if Congress chooses to adopt different ones (such as by prescribing the effect of state judgments under Article IV), it's far from clear that the Fourteenth Amendment would say no.

In fact, some federal statutes may do this already. 28 USC § 1738A imposes rules for state child-custody jurisdiction, and these rules may or may not track today's due-process doctrine. Those rules weren't at issue in this case, of course, and the Court properly avoided ruling on their constitutionality. (While the United States supported BNSF as an amicus, it didn't take any position on the issue of congressional power, or even discuss any statutes that might be affected—writing only that "there is no need to address any such questions here." Justice Kennedy raised the constitutional issue briefly during BNSF's oral argument, but no one asked the SG about it.)

So whatever else one might think of today's opinion, it's a good example of the Court doing more work in order to do the right thing: avoiding a constitutional issue it didn't have to decide.

Posted by Stephen Sachs on May 30, 2017 at 04:10 PM | Permalink

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