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03/27/2021

Originalism and International Shoe in the Supreme Court's Ford Motor Decision
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Waiting for the Other International Shoe to Drop.  From the introduction:

The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. [decided by the Supreme Court earlier this week] was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate.) Justice Alito concurred in the judgment. He suggested that the majority opinion put a new "gloss" on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.

Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).

Before International Shoe, it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court's competency normally depended on the defendant's presence in, or consent to, the sovereign's jurisdiction. But once a plaintiff was able to "tag" the defendant with process in the jurisdiction, that State's courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State.  Pennoyer  v.  Neff, 95 U. S. 714, 733 (1878).

Specifically on International Shoe, Gorsuch writes: 

In many ways, International Shoe sought to start over. The Court “cast . . . aside” the old concepts of territorial jurisdiction that its own earlier decisions had seemingly twisted in favor of out-of-state corporations.  At the same time, the Court also cast doubt on the idea, once pursued by many state courts, that a company “consents” to suit when it is forced to incorporate or designate an agent for receipt of process in a jurisdiction
other than its home State. In place of nearly everything that had come before, the Court sought to build a new
test focused on “traditional notions of fair play and substantial justice.”

It was a heady promise. But it is unclear how far it has really taken us. Even today, this Court usually considers
corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global
conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though
individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can
be found.  Nearly 80 years removed from International Shoe, it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.

Ultimately Justice Gorsuch doesn't reach any conclusions but calls for further study:

The parties have not pointed to anything in the Constitution's original meaning or its history that might allow Ford to evade answering the plaintiffs' claims in Montana or Minnesota courts. . . .The real struggle here isn't with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe's increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution's text and the lessons of history.

I'm sympathetic to Gorsuch's doubts.  In connection with the Daimler AG v. Bauman case a while back (also raising the question of personal jurisdiction over an out-of-state corporation), I wrote

... If California [the forum state] says to Daimler [a foreign corporation] "You can only do business here if you agree to be sued for wrongs you commit anywhere," why does that violate due process?  Daimler can choose to do business in California or not, but it doesn't have a right to do business in California.  And the fact that Daimler did its California business through a subsidiary doesn't seem to change the analysis; equally, it seems, California can say that a foreign corporation can't use subsidiaries to evade jurisdiction, and again Daimler can just stay out of California if it doesn't like that rule.  I see nothing unfair about putting Daimler to that choice, and in any event I see no procedural injury.

Perhaps there is some historical account of due process suggesting that violations could arise from unreasonable conditions on doing business, but I don't think anything like that has been demonstrated.  ...

What this case really suggests, though, is the need for more originalist-oriented scholarship on the civil procedure aspects of the due process clause.  Everyone wants to write about the clause's substantive aspects, or its criminal procedure aspects, or its constraint on executive power.  What about its constraint on courts?  The area seems, at best, poorly understood.  Even for those who are not fully-blown originalists, it would seem helpful for courts and litigants to have some anchor in the text's original meaning.