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Saturday, July 01, 2017

SCOTUS OT16 Symposium: The Future of Personal Jurisdiction

Thanks to Howard and the Prawfs crew for having me as a June guestblogger. I wanted to finish out my month by concluding with a few final thoughts future of personal jurisdiction at SCOTUS. 

After a 20-year hiatus where the Court heard no personal jurisdiction cases, the Supreme Court decided six personal jurisdiction opinions in the last six years. In each case, the Court reduced the scope of personal jurisdiction, and thus reduced the number of forum choices available to plaintiffs.  In most of the cases, there was a surprising level of agreement between the judges.

So what's next? The Court hinted in both BNSF and Bristol-Myers that it was considering whether the 5th amendment placed limits on Congress's power to authorize personal jurisdiction, an issue that Stephen noted in his earlier post on BNSF

That issue is squarely presented in the case of Sokolow v. PLO, and on June 26 the Court called for the views of the Acting Solicitor General. It's a great case to keep an eye on for next term; I think there is a good chance it will be granted. The House of Representatives has already filed an amicus brief in the case, which is not something you see every day. 

Other than potentially hearing the 5th amendment question in Sokolow, I would guess that the Court is likely to take a break from personal jurisdiction and will leave some of the thornier “relatedness” questions to the lower courts for awhile. Interestingly, after the Court issued its Bristol-Myers Squibb opinion, the Court denied cert in TV Azteca v. Ruiz, rather than GVR'ing it in light of Bristol-Myers, as I would have expected. The case arose in Texas, and the Texas Supreme Court allowed a Texas plaintiff to bring a libel suit against a Mexican broadcaster and TV anchor who had broadcast from Mexico (though due to inadvertent spillover, people in Texas along the Mexican border could watch the broadcast). The case raised interesting questions about what is required for purposeful availment, how closely the cause of action must relate to the defendant's purposeful contacts, and the scope of the effects test after Calder. It also had great facts, arising from the story of pop star Gloria Trevi, who was accused of grave misdeeds and spent years in jail before being released for lack of evidence. (And Trevi has some great earworms: Habla-bla-bla is impossible not to sing along with, and Psicofonío is a wonderful story-song about a ghostly love affair). The case shared amici with BSM; petitioner's amici argued that in both cases, the courts had overstepped the bounds of jurisdiction, and asked the Court to consider the cases together. Nevertheless, even after reversing BSM, the Court simply denied cert in TV Azteca rather than issuing a GVR for reconsideration in light of BSM.  

Posted by Cassandra Burke Robertson on July 1, 2017 at 09:10 PM in 2016-17 End of Term | Permalink

Comments

I have the hiatus as 20 years: Burnham was 1990; Nicastro was granted in 2010 and decided in 2011. In class, I use the fact that Souter was on the Court from 1990-2009 and never heard a P/J case.

Posted by: Howard Wasserman | Jul 2, 2017 12:32:32 AM

Yes, 20, not 25 years--edited to fix.

Posted by: CBR | Jul 2, 2017 8:17:31 AM

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