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01/03/2023

Allan Erbsen: Personal Jurisdiction’s Moment of Opportunity
Michael Ramsey

Allan Erbsen (University of Minnesota - Twin Cities - School of Law) has posted Personal Jurisdiction’s Moment of Opportunity: A Reform Blueprint for Originalists and Nonoriginalists (Florida Law Review, forthcoming) (65 pages) on SSRN.  Here is the abstract:

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on ill-defined jargon rather than a coherent account of how to allocate jurisdictional power in a federal system. Yet reform may be possible. In 2021, the Court decided Ford Motor Co. v. Montana Eighth Judicial District Court, which unanimously rejected Ford’s extravagant challenge to jurisdiction in states where it sold thousands of cars. Unanimity masked Justices’ simmering frustration with precedents that made Ford’s challenge more plausible than it should have been. Two Justices went so far as to suggest reconsidering settled precedent from an originalist perspective. Nonoriginalist Justices will be wary of using historical analysis to interpret the Due Process Clause, but may otherwise be open to revisiting foundational assumptions about state jurisdiction.

This Article provides a blueprint for reforming personal jurisdiction doctrine that can appeal to both originalists and nonoriginalists. Finding common ground is essential at a time when the meaning of Due Process is contested and personal jurisdiction precedent is unstable. Part I uses Ford as a case study to explore why current rules governing personal jurisdiction excessively shield defendants from accountability. I argue that precedent underweights state interests and horizontal federalism concerns, overweights the importance of purposeful contacts with the forum, needlessly distinguishes between suit-related and state-related contacts, and relies on a categorical rather than sliding-scale approach to specific and general jurisdiction. Part II explains why some Justices are willing to embrace reform. Part III identifies challenges that confront efforts to rebuild personal jurisdiction doctrine on a more stable and sound foundation. A common theme uniting these challenges is that an originalist inquiry into personal jurisdiction must navigate the same complexities that have undermined nonoriginalist jurisprudence. There is a risk that originalist methods will elide these complexities and create a veneer of reform that obscures doctrinal incoherence. Similarly, there is a risk that nonoriginalists will gloss over these complexities rather than joining with originalists to find a mutually acceptable path toward reform. The Article therefore proposes eight criteria for rebuilding personal jurisdiction doctrine that Justices should consider regardless of the interpretive methodology they employ. This framework can help the Court seize an opportunity to repair a broken field of constitutional law.