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Wednesday, July 05, 2017

SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction

Cassandra’s post below strikes me as basically right: after a long drought, the Court is paying serious attention to personal jurisdiction. So it’s worth looking at the state of the field.

The personal-jurisdiction debates I’ve seen—on blogs or Facebook posts, in email chains or in briefs and opinions—invoke a wide variety of different arguments. What’s striking, at least to me, is a lack of substantial attention to determining what counts as a good argument—what makes particular claims about personal jurisdiction either true or false. (As noted below, this is part of a broader failing in constitutional scholarship, effectively discussed in Chris Green’s work-in-progress on constitutional truthmakers.) In other words, a great many personal-jurisdiction arguments seem to be largely talking past each other, rather than joining issue on something we can resolve.


For example, many arguments I’ve seen are openly prudential. They argue that upholding (or denying) jurisdiction in such-and-such a case would be a good policy idea, that it would make the legal system better rather than worse, that it would open courthouse doors to sympathetic plaintiffs or lift heavy burdens from sympathetic defendants. But the law does lots of things that are terrible policy ideas, in all sorts of ways: just think of the tax code. So it’s not clear why we should feel confident that any particular good idea would be the right answer on the law—or that any given bad idea is therefore the wrong answer on the law.

Other arguments root themselves in judicial doctrine: personal jurisdiction is present or not because the courts have so held, or because the best reconciliation of their past decisions would so hold, or (to be more Holmesian) because that’s what they’re most likely to hold in the future. On the most extreme account, personal jurisdiction is whatever the courts say it is, so it’s impossible for the courts to be wrong. But many people who deploy these arguments seem to use them to criticize judicial decisions—as if the courts have somehow made mistakes in predicting their own rulings. And even paying due respect to accumulated doctrine, what the courts seem to be saying here is that personal jurisdiction isn’t whatever they say it is: they keep rooting their jurisdictional holdings in other legal rules, with sources external to judicial doctrine alone.

Usually courts root their holdings in the Due Process Clause, ostensibly as generous here as elsewhere (“Turn it over, and turn it over, for all is therein”). But here, too, there’s little effort spent on identifying what counts as a good due-process argument—on what makes claims about jurisdiction-being-consistent-with-due-process true or false. It might involve the defendant’s burden, or the state’s legitimate interests, or fundamental fairness, or a political-theory concept like sovereignty, or history-and-tradition, or some complicated weighted sum of the above. (And over all of these looms the ghost of Pennoyer, which still casts its dark shadow over the U.S. Reports no matter how often academics declare that it was killed off, once and for all, by Insurance Corp. of Ireland or by International Shoe.)

Put another way, the same inattention to truthmakers that we see in con law debates shows up in personal jurisdiction too. This makes some sense, because personal jurisdiction is all about the scope of the powers exercised by various state or federal officials; that’s a topic in small-c constitutional law, whether or not it’s actually resolved by the contents of the U.S. Constitution. But it also explains some of the pathologies of personal-jurisdiction scholarship, because members of different schools will insist loudly on particular priors—the role of interstate federalism, the needs of plaintiffs, the apparently prophetic authority of von Mehren and Trautman—without trying to explain why other people ought to be convinced of them too, on grounds that they might share. There's no escape for civil procedure folks, who often imagine their field to be more rigorous and determinate than that of their con-law colleagues down the hall, from stating and defending their constitutional commitments.

The best way to understand the current confusion is probably to see where it came from. On my reading of the history, the phrase “due process of law” wasn’t supposed to enact substantive standards for jurisdiction—as opposed to a means of enforcing standards supplied by other sources, such as general and international law. Trying to squeeze detailed jurisdictional rules out of those four words is like trying to squeeze blood from a stone. So it shouldn’t surprise us that, after nearly a century of misattributing complex general- and international-law rules to a single phrase in the Constitution, we’d find our underlying jurisdictional principles hard to state or explain—much less to apply to new circumstances, or to ground in more general understandings of the law.

Likewise, it’s not surprising that standards derived from older doctrines of general and international law might prove somewhat awkward, from a policy perspective, in an era with more extensive cross-border activity. That’s why jurisdiction might be an area most properly addressed by statute. Looking to some future decision of the Court to sort everything out for us is a false hope: nine Justices and their clerks don’t have enough time to work out good policy solutions for all of America, and they also lack the legal authority to try. Congress may have the right to make certain kinds of arbitrary compromises, in pursuit of rough justice, that courts in our system don’t. Failing that, the courts will continue to muddle through. I wouldn’t call this pessimism, so much as appropriate caution about what judges and courts can properly achieve.

But it would help, in the meantime, if we who think and write about the subject were better about clarifying our terms, and about trying to argue with rather than against one another. If we think a result is bad policy, we should say that it’s bad policy. If we think that a holding is inconsistent with the deep principles of International Shoe, we should say that instead, and defend why those principles should matter to those who view them with indifference. And if we think that a particular decision is wrong on the law, we should be clear about what we mean by that, and on the sources of the legal rules that we invoke. Doing all this may not lead to consensus or agreement, at least not right away; but at least we’ll be talking about the same thing, which is the first step to understanding it.

Posted by Stephen Sachs on July 5, 2017 at 11:43 AM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Legal Theory | Permalink


I agree completely that the only way out of this morass and to put an end to the courts (both state and federal) lurching from pillar to post as they react to particular fact situations is for the legislatures, both state and federal, to step up and declare the rules that govern jurisdiction.

Goodbye due process clause; hello statute.

Posted by: Martin Wishnatsky | Jul 7, 2017 11:19:38 PM

Good q. Others may disagree, but if you're saying the real truthmaker is current doctrine, I don't think the current traditional-notions-of-fair-play-and-substantial-justice test can be read as just a stand-in for 'the best policy on jurisdiction, whatever that might be.' That's not how the Court describes it in Volkswagen or BMS, both of which emphasize how fairness-and-reasonableness is only one part of the SJ test, not the whole ballgame. And a best-policy test would be roughly equivalent to striking the phrase 'traditional notions of,' which at present does some real work (see e.g. Burnham). Whether the Court could make (what it thinks is) good policy sotto voce is different from whether that's the test it currently recognizes.

Posted by: Stephen Sachs | Jul 6, 2017 10:34:08 AM

It's not clear to me why we shouldn't feel confident that the best personal-jurisdictional policy is the right answer on the law. The tax code seems an inapt analogy; there the content of positive law is more or less determinate. Everyone agrees that the tax code, whatever precisely it means to the relatively limited extent it's ambiguous, is the law. What's like the tax code in personal jurisdiction? Doctrine says the source of personal-jurisdictional law is the Due Process Clause, but as you say, the Due Process Clause isn't very jurisgenerative when it comes to personal jurisdiction. So it seems that under existing doctrine it's quite open to the Court to make whatever personal-jurisdictional law would be best policy, more or less. Now, I take it you think originalism compels something else, whether or not that something else is excellent policy. But as originalism isn't, really, the law, at least not when it comes to personal jurisdiction, I don't see what's constraining anyone from supposing that their favored policy is or should be the law because it would best instantiate norms of fair play and substantial justice, which seem to be the truthmakers of personal-jurisdictional law.

Posted by: Asher Steinberg | Jul 5, 2017 3:52:21 PM

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