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Thursday, March 04, 2021

Whither Ford?

Alabama Law Review will host a virtual symposium, Ten Years of the Supreme Court's Personal Jurisdiction Revival, 9 a.m.-3:30 p.m. CST tomorrow. Registration here.

The timing of the symposium makes it worth noting that the Supreme Court has not decided the Ford personal jurisdiction cases, which were briefed last spring and argued on October 7. The Court has not announced its next opinion day and the new sitting does not begin until March 22. So it will be 5 1/2 months, at least, from argument to opinion. It must mean the Court is going to do some very unfortunate things to personal-jurisdiction doctrine or some minority of the Court is drafting dissents to complain that the Court did not do something unfortunate to personal-jurisdiction doctrine. Either way, I am surprised it has taken so long.

Posted by Howard Wasserman on March 4, 2021 at 04:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Ford had to have a reasonable expectation that they could be sued in the forum state, as they conducted business in said state. The simple fact that the product was purchased in another state does not exempt them liability within the forum state. As one of the Justices pointed out, if she purchased an apple computer in her home state, and then moved and later injured by that product, which is also sold in her new home state, she would have to fly back to the original state to file a lawsuit? That is ridiculous and unfair to the injured party.
Also, there are many other reasons why Ford should lose. For one, how about when a plaintiff is barred from filing in federal court due to diversity of citizenship. So state court is the only allowed forum. In this case, when there are two defendants, one living in the forum state, and the other at home in another state, you expect the plaintiff to sue in two different states on the same set and facts? Where is the fairness of this? How can forum state plaintiffs be brought before the court in the home state, when said plaintiffs never stepped foot into the home state of the corporation.

Posted by: Frank | Mar 18, 2021 7:05:36 AM

There's the option of a concurring opinion arguing that International Shoe and everything since is non-originalist.

While I've been sympathetic to Brennan's views in Asahi since my 1L Civ Pro class and do think Ford should lose on stream-of-commerce grounds that the plaintiffs didn't advance, I think what the plaintiffs are actually arguing, where the courts have jurisdiction because Ford sold other people cars of the plaintiffs' model in the forum, is really weird. I don't understand the constitutional significance of a model. A model is a branding device; one Crown Victoria isn't a clone of another. At the least, this rule should be limited to claims that say there's something wrong with the model as designed or generally manufactured, not something wrong with your individual car that wasn't sold in the forum.

Posted by: Asher Steinberg | Mar 4, 2021 9:12:02 PM

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