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28 posts from February 2022


More from Vasan Kesavan on the Vice President's Tie-Breaking Power
Michael Ramsey

Responding to this post on the Vice President's tie-breaking power, Vasan Kesavan comments: 

I do think the VP has the casting vote on appointments under the Appointments Clause - no question.  Footnote 246 of my Electoral Count Act article wasn't complete and I think I straddled the VP-casting-vote-in-appointments question without embracing an answer -- I should have taken it further.  It's an easy, straightforward case as a matter of text.  It's only when one looks to The Federalist that there is confusion. Professor Tribe's op-ed and my footnote illustrate the dangers of quotation from The Federalist - the relevant sentence seems absolute. But, in the context of the whole paragraph it becomes clear that Publius (Hamilton) isn't talking about the Vice President at all.  Hamilton is comparing the power of the President with that of the governor of New York (the "power of the chief magistrate of this State").
It's worth remembering that Publius made some mistakes too, elsewhere - a topic for another day.  The VP's casting vote in appointments isn't one of them though.  There are good explanations for why it's still possible that no appointment could be made in the case of a tie - if the VP doesn't vote to support the President's nomination (as you point out, there was no "perhaps" about it - the VP was the President's rival or "chief opponent" as I do note in the footnote) or if the VP is absent.
Finally, looking back on n. 246, I'm not sure why I wasn't firmer about the VP having no casting vote in the contingency election for VP in the Senate under the Twelfth Amendment. It's clear that the VP does not have a casting vote in this circumstance.
I agree on all counts.  I feel better about this because, as my initial post indicated, I was concerned that he and I were reading the text differently -- but happily we aren't.  Professor Tribe is just wrong on this point.  (I don't worry about disagreeing with Professor Tribe, who's not really an originalist though sometimes makes excellent originalist arguments, but I do worry about disagreeing with serious originalists like Vasan Kesavan).


Jennifer Mascott on Bivens and Egbert v. Boule
Michael Ramsey

Jennifer Mascott (George Mason) filed this originalist amicus brief in Egbert v. Boule (pending at the Supreme Court with argument March 2), which concerns the scope of Bivens remedies.  From her summary of argument:

There is no longstanding provenance for judicially implied constitutional causes of action like those created in Bivens. Rather, there was a historical tradition of federal courts entertaining state common-law damages claims against federal officials, typically for trespass. The nature and scope of that tradition demonstrates just how far afield from historical practice Bivens strayed when it announced a new cause of action assertedly derived from the Constitution itself in 1971. In the 18th and 19th centuries when federal courts considered cases involving longstanding state common-law causes of action, courts were not “fashioning” or “creating” or even expanding causes of action but instead applying longstanding law to defendants who happened to be federal officials. The suits sought to vindicate those longstanding common-law interests, not a separate category of allegedly constitutional rights. Indeed, from 1789 when lower federal courts under the new Constitution first opened their doors after their creation in the Judiciary Act, through the Civil War, constitutional questions rarely arose in the context of lawsuits against federal officials in Article III courts. Where they did, such constitutional questions tended to arise indirectly, as defenses, not as elements of the plaintiffs’ actions. The lack of federal question jurisdiction until 1875, see Act of Mar. 3, 1875, § 1, 18 Stat. 470, led to this procedural posture, and early suits against federal officers often necessarily arose in state court. Nonetheless, that jurisdictional vacuum facilitated a legal landscape in which there was no widespread early practice of federal judicial inferences of implied constitutional claims. And even scholars who note originalist support for the existence of federal common law pre-Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), often acknowledge the limited nature of such common-law authority—in contrast to a freewheeling ability for Article III judges to create and recognize developing causes of action as they saw fit based on policy considerations. See, e.g., Caleb Nelson, The Legitimacy of (Some) Federal Common Law, 101 Va. L. Rev. 1, 1–9 (2015) (suggesting that federal common law would not improperly stray into judicial lawmaking if it incorporated firmly grounded sources of authority “such as widespread customs, traditional principles of common law, or the collective thrust of precedents from across the fifty states”); Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 610–16 (2015) (distinguishing federal judicial application of “general law” such as transnational legal authorities including “the law merchant, the law maritime, and the law of state-state relations” from the modern concept of “federal common law,” which the Supreme Court did not recognize “[f]rom the Founding through the nineteenth century”).

Bivens reversed course from the early practice. It created a direct cause of action for damages for violations of asserted constitutional rights—a cause of action unauthorized by any statute and previously unknown to the history and tradition of the federal judiciary. For the first time, federal courts were not just applying longstanding, generally applicable common-law damages actions to federal officials, but instead were creating new damages actions allegedly under federal law that applied solely to federal defendants. See Part I, infra. The limited nature of the federal government newly created under the 1788 Constitution is in irreconcilable tension with, and provides no basis for, a new 20th-century, judicially driven federal damages regime like the longstanding common law regime in place at the state level prior to federal constitutional ratification. The very nature of the bargain between state conventions ratifying the U.S. Constitution and the federal government was that the federal government would be constrained by the procedural and subject-matter limitations of the text that the popularly elected conventions ratified. Under that text and constitutional structure, statutes subject to rigorous Article I procedural requirements are the mandated principal source for new legal obligations, not judicially inferred damages actions from newly ratified substantive constitutional text.

Separation of powers principles inherent to that text explain why federal courts historically avoided creating damages actions absent statutory authorization from Congress. See Part II, infra. The core feature of the federal constitutional system is its character as a government of limited powers. See The Federalist No. 45 (James Madison) (“[T]he powers delegated by the . . . Constitution to the federal government are few and defined.”). The “legislative power” to create new federal causes of action is vested with Congress pursuant to Article I, not with the courts. Article III’s limitation of federal court jurisdiction to “cases” and “controversies” provides an additional indication that the courts were founded primarily to hear causes of action created via bicameralism and presentment, not to manufacture such actions in the first instance. Moreover, by inserting courts into judgments about sovereign and political trade-offs, Bivens claims are especially corrosive to separation of powers protections.

Liberty is best protected by enforcing the Constitution’s reservation of limited powers to each branch. “In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). Bivens is such an intrusion. Finally, disavowal of Bivens as lacking deep-seated historical origins would have no bearing on the lawfulness of recently reaffirmed equitable doctrines like the negative injunctive power countenanced in Ex Parte Young. The injunctive relief available under Young has been tied to origins dating back to the Judiciary Act of 1789, and even earlier in English equity history, and involves limited relief to halt unlawful and unauthorized government official actions rather than affirmative implications of private causes of action for monetary damages beyond the scope of clear legal text. See Part III, infra.

I think this is mostly right, at least as to the power of the federal courts to create federal constitutional causes of action.  It's complicated by the federal court's pre-Erie use of general common law, which might have supported a claim against federal officers acting unconstitutionally even in the absence of an express state law cause of action.  But broadly speaking the original understanding presumably was that federal officers who violated individual rights could be sued under state law, and if they were acting unconstitutionally they couldn't defend on the ground that they were engaged in federal business.  As a result, a cause of action based on the Constitution, as in Bivens, wasn't needed or appropriate.

However, as I've argued on this blog, the later point only makes sense today if the traditional state law remedies are still in place, which they aren't.  The brief acknowledges this point (with a cite to the Originalism Blog): 

To the extent that some remedy is perhaps deemed constitutionally necessary to address government official actions taken without any lawful scope of authority, ... the solution is not to rely on a mode of judicial creation of relief that is in tension with underlying constitutional requirements for the creation and regulation of federal subject-matter jurisdiction. Rather, the more appropriate reconsideration would be of the constitutionally proper scope of Westfall Act limitations on relief and preemption of traditional common-law damages actions against federal officials. Cf. Michael Ramsey, “Don’t Fear Bivens,” The Originalism Blog (Nov. 12, 2019), https://originalismblog.typepad.com/the-originalismblog/2019/11/dont-fear-bivensmichael-ramsey.html (contending that “absent a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims,” in analysis contending for the constitutionality of Bivens).

I agree with that statement: the Westfall Act, if interpreted to bar state law remedies for unconstitutional acts of federal officers, is unconstitutional (though not necessarily because "some remedy is ... constitutionally necessary," but because it's not necessary and proper for Congress to bar such remedies).  My point in the blog post was that Bivens basically stands in the shoes of the traditional common law remedies, so it is not such an anomaly as its critics suggest.  Rather, the anomaly is that today federal officials can avoid liability for constitutional violations of basic common law rights (unless they can fit their claims within the increasingly narrow scope of Bivens).

The issues presented in Egbert are:

(1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

My answer is that there should be a remedy if state law provides a remedy, and if you need Bivens to get there, that works for me.  I wouldn't extend Bivens beyond what state law would provide (which it sounds like the first issue might be trying to do). But the second issue is a straightforward trespass claim, and as an originalist matter I can't see why it should be barred just because it's in the immigration enforcement context and so not exactly like Bivens.


John McGinnis on the Harvard Admissions Case and the Original Meaning of Title VI
Michael Ramsey

At Law and Liberty, John McGinnis, Precedent Does Not Protect Preferences. From the introduction:

This fall, the Supreme Court will hear claims that two colleges are engaging in racial discrimination in their admissions programs in violation of Title VI of the Civil Rights Act. In Students for Fair Admissions v. Harvard, students of Asian descent have alleged discrimination and shown, among much other evidence, that Harvard admits a slightly smaller percentage of Asian Americans ranked in first academic decile (based on scores and grades) than it does African Americans ranked in the fourth decile from the bottom. Students for Fair Admissions v. University of North Carolina raises similar issues. For instance, in the fifth academic decile, the admission rate of African American students is over forty percent greater than whites and students of Asian descent.  

Title VI reads simply: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VI applies to all colleges that receive federal funds, including student aid. Because almost all colleges get some federal money, this is the most important case for higher education in decades.

The Court will consider whether to overrule its past cases, including Regents v. BakkeGrutter v. Bolinger,  and Fisher v. University of Texas, that permitted race-based affirmative action in admissions so long as it promoted “diversity” and was carried out through “holistic methods” rather than quotas. Thus, one of the central issues in next term’s cases will be the stare decisis effect of these prior cases. It will likely be argued that the earlier holdings should be reaffirmed because of a rule that gives particularly heavy weight to statutory precedent as opposed to constitutional precedent. But reliance on stare decisis to insulate these cases from reconsideration would be mistaken, regardless of whether the Court determines that underlying issue is statutory or constitutional.

And from later on:

Title VI is unambiguous when it comes to preferential admission on the basis of race. It tells us that “No person” can be “excluded from participation in, or be subjected to discrimination under any program . . .  receiving Federal financial assistance” on the ground “of race, color, or national origin.”

The language could hardly be clearer. Nevertheless, the earlier courts have not followed the text, but have instead interpreted the language as if it read like the Fourteenth Amendment’s somewhat broader “equal protection of the laws,” rather than the pellucid command of Title VI. But there is no relevant ambiguity in the meaning of “excluded from participation in” or “race, color, or national origin” that importing the Equal Protection Clause helps clarify. Title VI could have been written to follow the constitutional provision, but did not.

Indeed, far from clarifying any ambiguity, the decision to interpret Title VI’s clear language to follow the Equal Protection Cause necessarily made the cases more difficult. The Clause is more abstract and less specific than the statute. The Court majorities in Bakke and subsequent cases were thus more easily able to claim that, while the Clause imposed substantial scrutiny on any race-conscious programs, the benefits of diversity met that heavy burden.

And if there was any doubt about whether this statute precluded the affirmative action that the Court claimed the Equal Protection Clause permitted, as Justice John Paul Stevens noted in his dissent, the comments in the legislative history made clear that it prohibited discrimination regardless of the race of those discriminated against.


Harvard Law Review Note on State Power over Presidential Elections
Michael Ramsey

The Harvard Law Review recently published this interesting student note: “As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework.  From the introduction (footnotes omitted):

... The Supreme Court has provided many guideposts to navigate [the issue of state limitations on ballot access], the most important of which is the Anderson-Burdick balancing test. ...  The balancing test requires courts to weigh the injury to an individual’s First and Fourteenth Amendment rights, left undefined, against the state’s interest in imposing a given election regulation.

... [T]he more damning flaw in Anderson-Burdick is conceptual: it does not recognize that, as a matter of constitutional theory and actual practice, presidential elections, more than other elections, are left to the discretion of the states.

By returning to the Constitution’s text and revising presidential election caselaw to better accord with it, the Court may be able to solve these problems. This Note argues that a better approach lies in deference to the constitutional authority of states to make their own decisions with regard to presidential elections. Echoing the Supreme Court’s 1892 decision in McPherson v. Blacker and then–Justice Rehnquist’s dissent in Anderson, this deferential approach would strike down state restrictions only when they contravene a separate provision of the Constitution, with those provisions being read in the context of a system where the President is not popularly elected. Thus, while provisions like the First Amendment or the Presidential Qualifications Clause might still limit state authority, those limits would not create a general-purpose balancing test. In addition to ensuring greater textual fidelity, this approach would reduce uncertainty — there would be little doubt that most restrictions implemented by states were constitutional.

Anderson-Burdick applies to all restrictions on all elections, and that one-size-fits-all approach is one of the framework’s key shortcomings.  But this Note focuses specifically on presidential elections, to which the framework is particularly ill-suited. If the Supreme Court chooses to strike the test down, the different constitutional provisions governing congressional elections would not require the same level of deference to states. Judicial opinions often assume the existence of a right to vote, but that right need not manifest equally in all elections. Ballot access restrictions help frame this distinction because they are easily differentiated even in simultaneous elections. But the principles discussed below would be equally applicable to state laws, like voter ID laws or laws regulating polling places, that exclusively governed the casting of presidential ballots. ...

Part I reviews the constitutional basis for state authority in presidential elections, noting how states have historically exercised this power. Part II reviews Supreme Court decisions that have articulated restraints on the ability of states to manage their presidential elections. Part III argues that many of these decisions are inconsistent with the Constitution, and suggests an alternative approach based on deference to states. Part IV briefly surveys constitutional constraints on state authority that would remain under this approach. This Note concludes that, though a hands-off approach carries risks for democracy, it is nonetheless required as a matter of textual fidelity.

The relevant text is Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." (Oddly, this isn't the text quoted in the note's title.)

The note seems correct in saying that this text establishes a discretion in the state legislatures, subject to other specific limits elsewhere in the Constitution's text (e.g., a state can't exclude a candidate from the ballot based on the candidate's speech).  The Anderson balancing test is just something the Court made up.  (In support of that view, Anderson was 5-4, with Rehnquist, White, Powell and O'Connor in dissent.)

Via Jay Willis at Balls and Strikes, who seems unduly worked up about the argument and also about the Harvard Law Review's quaint practice of publishing student notes anonymously.  Surely the merits of the article turn on its arguments and the author isn't important, unless of course one is interested in trying to punish the author for advancing views with which one disagrees, which is sadly all too common these days.


Eric Segall on the Originalism Conference and Engaging with Disagreement
Michael Ramsey

A Dorf on Law, Eric Segall: Of Originalism, Political Polarization, Tolerance, and the Importance of Talking to the Other Side. From the introduction: 

Last Friday and Saturday I attended the 13th annual Originalism Conference at the University of San Diego. There were seven papers presented by legal academics and discussed over two days in a room full of approximately 45 self-identifying originalists, two non-originalists (myself and Professor Tom Colby), and one person who as a matter of self-identification straddles the line (an ice storm in the Midwest and Covid issues led to slightly fewer non-originalists at the conference than usual). For the record, my guess is that most of the professors there were members of the Federalist Society, though that organization had nothing to do with the conference. 

I commented on six of the seven papers and, as you'd expect, most of what I said was critical of originalism in general and the way the papers used originalism in particular. Although there was the expected pushback from almost everyone in the room, the conversations were friendly, civil, and I think helpful to the presenters. In any event, the debates helped me get a better understanding of numerous legal issues and how originalists viewed them. There was also substantial and robust debate and disagreement between and among the 45 or so originalists, all in the service of healthy academic discourse. 

I am pretty sure Professors Michael Rappaport and Michael Ramsey, who run run the program, would appreciate me saying the conference is open to all and non-originalists and anti-originalists are more than welcome to attend and are even appreciated. Given how much originalist discourse is going to (sadly) be presented to judges in the future, I recommend this conference highly to everyone, especially those who believe, as I do, that judicial focus on originalism is quite undesirable. 

All of which brings me to Ilya Shapiro, Elie Mystal, the Federalist Society, and our current state of social media and academic discourse. . . .

And in conclusion:

We need to listen to people who disagree with us, even to those who do so strongly, much more than we need to surround ourselves with people who think just like us. That is why I went to the Originalism Conference full of people with whom I mostly disagree. It is in those fora where I learn the most, and maybe, just maybe, do the most good.

Agreed, and thanks to Professor Segall for his kind words about the conference and for his participation in it.  There's a lot more of value in the post, most of which I agree with as well.


Katharine Young: Human Rights Originalism
Michael Ramsey

Katharine Young (Boston College Law School) has posted Human Rights Originalism (Georgetown Law Journal, Vol. 110, No. 5, 2022) (92 pages) on SSRN.  Here is the abstract:

Are human rights to be found in living instruments and practices that adapt to changing circumstances, or must they be interpreted according to their original meaning? That question, so heavily debated in the context of the rights of the U.S. Constitution, was never seriously on the table until 2020. But when former Secretary of State Mike Pompeo called for “fresh thinking” about human rights, and its connection with “our nation’s founding principles,” he brokered a return to two landmark instruments of human rights—the Declaration of Independence of 1776 and the Universal Declaration of Human Rights of 1948. His Commission on Unalienable Rights obliged, presenting the familiar tropes of fixed sources, venerated authorship, and national identity, in order to accomplish a drastically different presentation of the meaning of human rights. The end result is an act of fusion—the powerful political and cultural valence of America’s constitutional originalism, applied to the human rights of American foreign policy.

This Article identifies this innovation as “human rights originalism.” Although the Report of the Commission on Unalienable Rights has, at least for now, been shelved, human rights originalism may be one of the most enduring legacies of the Trump Administration. As an interpretive theory, human rights originalism promises many of the same benefits as its constitutional counterpart—simplicity, popular reach, and control of rights’ unruliness and proliferation—this time wrested from unaccountable United Nations institutions and experts rather than courts. As a substantive departure from contemporary human rights, human rights originalism elevates the importance of religious freedom and property rights, and provides a selective diminishment of women’s rights, LGBTQ+ rights, and racial equality, mirroring and further cementing current trends in originalist constitutional doctrine. The four standard epistemic communities that supply “meaning” to human rights—in the international, comparative, transnational, and philosophical domains—are all rejected by originalism, just as those domains are themselves inimical to it.

This homegrown form of human rights argument is significant for human rights law and foreign policy, but so too is it significant for originalism itself. In propelling originalism into the uncompromisingly global domain of human rights, originalism’s proponents expose the nationalism and exceptionalism that are perhaps its most unsettling features. At the same time, originalism’s own malleability is highlighted in its adaptiveness to the modern administrative state and the promises of the postwar period.


Lawrence Solum on Constitutional Principles
Michael Ramsey

At Legal Theory Blog, Legal Theory Lexicon: Principles in Constitutional Theory.  From the introduction:

When studying constitutional law, students are likely to be exposed to the idea that interpretation of the United States Constitution may include reference to what are sometimes called "constitutional principles"--general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide "extraconstitutional" or "nontextual" reasons for decisions in constitutional cases.  For example, interpretation of the equal protection clause of the fourteenth amendment might be guided by an "antisubordination principle" or an "equal citizenship principle."  Similarly, the federalism provisions of the constitution might be interpreted in light of a principle of "dual sovereignty" or a principle of "state sovereign immunity."

What are constitutional principles?  How do they relate to legal theory more generally?  Where do they come from?  What role can they play in constitutional interpretation and the decision of particular cases?  This entry in the Lexicon explores these questions and examines the role of principles in constitutional interpretation. 

And from later on:

Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles.  Some theories of constitutitional interpretation insist that the text of the constitution plays an essential role in constitutional law.  "Textualism" or "original meaning originalism," for example, insist that the linguistic meaning of the constitution is given by the "original public meaning" of the constitutional text.  It might be thought that these theories are inconsistent with constitutional principless, but, as we have seen, this is not necessarily the case.  If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.

On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles.  For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases.  Similarly, Ronald Dworkin's approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle.

Regular readers won't be at all surprised that I'm very skeptical (to put it mildly) of "constitutional principles" stated in the abstract and unconnected to the Constitution's text.  There are of course principles incorporated into the text (as in "the freedom of speech" referenced in the First Amendment) and there are principles implemented by the text (such as separation of powers).  And there are background legal rules that the Constitution may have implicitly adopted because they were widely assumed at the time of enactment.  But I have a hard time seeing how abstract constitutional principles are identified apart from the text or the specific background assumptions of the relevant time.  One can say, for example, that privacy and personal autonomy are constitutional principles, and maybe they are -- but maybe they aren't, and I'm not sure how that would be proved (other than by the text or widely shared background assumptions of the relevant time).  More often, it seems to me, "constitutional principles" are those that the speaker thinks ought to be incorporated into the Constitution, even though they aren't.  (See, e.g,, here).  Because if they were incorporated into the text, they wouldn't need to be "constitutional principles" -- they would just be part of the Constitution.


New Book: "Common Good Constitutionalism" by Adrian Vermeule
Michael Ramsey

As foreshadowed, and now published: Common Good Constitutionalism by Adrian Vermeule (Polity 2022).  Here is the book description from Amazon:

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the “living constitutionalism” of progressives. Is it time to look for an alternative?

Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as “a reasoned ordering to the common good.” In this view, law’s purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of “common good constitutionalism.”

This erudite and brilliantly original book is a vital intervention in America’s most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

From the reviews, Jack Goldsmith says it "is destined to infuriate, and to reorient."  And for just $17.96.


Patrick Borchers: Ford Motor Co. v. Montana Eighth Judicial District Court and 'Corporate Tag Jurisdiction' in the Pennoyer Era
Michael Ramsey

Patrick J. Borchers (Creighton University School of Law) has posted Ford Motor Co. v. Montana Eighth Judicial District Court and 'Corporate Tag Jurisdiction' in the Pennoyer Era (Case Western Reserve Law Review, Vol. 72, No. 1, 2021) (46 pages) on SSRN.  Here is the abstract:

In its seventh personal jurisdiction decision since 2011, the Supreme Court in Ford Motor Co. v. Montana Eight Judicial District Court ruled for the plaintiff and found jurisdiction, after six straight victories for defendants. All eight of the participating Justices found the "minimum contacts" test (which has been the central test for personal jurisdiction since 1945) satisfied, though the rationale was splintered with five signing Justice Kagan's majority opinion, Justice Alito concurring only in the judgment, and Justice Gorsuch (joined by Justice Thomas) also concurring only in the judgment.

The opinion involved two consolidated cases presenting similar facts. In each, a Ford automobile, designed and manufactured outside the forum state, was initially sold in a state neighboring the forum state, and then resold in a private transaction to a forum-state resident, where it became involved in an accident injuring the plaintiff due to an alleged defect in the vehicle. In each forum state, defendant Ford Motor Co. had substantial business contacts (dealerships, sales of new and used cars, sales of replacement parts, automobile service centers, etc.). However, under the Supreme Court's now-restrictive view of "general jurisdiction" (jurisdiction based on contacts with the forum state unrelated to the claim) the plaintiffs could not establish general jurisdiction in the forum states of Montana and Minnesota, because neither was the principal place of business or the state of incorporation of Ford.

The plaintiffs had to establish "specific jurisdiction," meaning that they had to show that their claims "arose out of or related to" Ford's forum-state activities. Although all eight Justices agreed that there was the necessary relationship between the contacts and the forum states, they divided on what relationship suffices; the majority offered a nebulous "affiliation" test while the other Justices preferred a causation test, whereby the defendant's forum-state activities must be a cause of the events giving rise to the claim..

This article does not closely examine the Supreme Court's minimum contacts analysis. Rather, it accepts the invitation of Justice Gorsuch to examine the historical justification (if any) for the Due Process Clause limiting jurisdiction over corporations. As Justice Gorsuch noted, corporate defendants have fared well under the minimum contacts test. He asked why this is so and whether there is an originalist or textualist justification for the solicitous treatment of them.

This article argues that case for requiring purposeful, related contacts by defendants (including corporate defendants) is ahistorical and unfair in operation. It focuses in particular on New York's "Pope" rule, which in the late 1800's and early 1900's allowed for jurisdiction over corporations if a corporate officer were served in the forum state, even if casually and the corporation lacked substantial business connections with New York. The U.S. Supreme Court refused to strike down "Pope" assertions of jurisdiction until 1915, almost a half century after ratification of the 14th Amendment. Even after that, the Supreme Court continued to allow jurisdiction over corporations under corporate registration statutes that required the corporation to appoint an in-state agent for service of process.

Given the weak historical justification for closely regulating jurisdiction under the Due Process Clause, this article argues for subsuming jurisdictional due process norms under procedural due process. Under the proposed test, an assertion of jurisdiction would be unconstitutional only if the choice of forum imposed costs on the parties or created a risk of an inaccurate resolution disproportionate to the stakes involved in the case.


Leonid Sirota: Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation
Michael Ramsey

Leonid Sirota (University of Reading Law School [U.K.] and Double Aspect blog) has posted Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation ((2021) 47:1 Queen’s Law Journal 78) (34 pages) on SSRN.  Here is the abstract:

Both the Supreme Court of Canada and Canadian scholarship often treat debates about constitutional interpretation as settled. This articles shows that this is not so. While it is commonly assumed that purposivism is the authoritative interpretive method, originalism and textualism continue to influence the Supreme Court's decision-making. This article demonstrates their decisive influence on three recent cases interpreting the Canadian Charter of Rights and Freedoms.

After an overview of the main interpretive approaches present in the Supreme Court's eclectic jurisprudence ― purposivism, living constitutionalism, and originalism―the article critically assesses the majority and minority reasons in R v Stillman, R v Poulin, and Quebec (Attorney General) v 9147-0732 Québec Inc. While all the opinions profess fidelity to purposivism, they are sharply divided about interpretive questions. A close examination of the majority opinions shows that they were, in fact, more textualist or even originalist than they acknowledged. Their endorsement of purposivism and even the ostensible rejection of textualism in Québec Inc are hollow.