Four Specific Problems with the New General Jurisdiction

30 Pages Posted: 2 Sep 2014 Last revised: 12 Feb 2015

Date Written: September 1, 2014

Abstract

General in personam jurisdiction allows a court to enter judgment against a defendant regarding a claim that did not arise in the forum. Traditionally, based upon International Shoe (1945), courts have exercised general jurisdiction over corporations based upon their "continuous and systematic" activities in the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) and Daimler AG v. Bauman (2014), the Supreme Court has restricted general jurisdiction by making it available only where the defendant is "at home" (a notion apparently never adopted by any state court as a proxy for general jurisdiction).

Goodyear and Daimler were easy cases. The lower courts' exercise of general jurisdiction in each was risible. Instead of simply reversing the efforts, the Court decided several issues it did not need to decide and upset accepted understanding of activities-based general jurisdiction. Because the Court has never explained why we have general jurisdiction, it failed to explain why the new restriction is needed or appropriate.

This article focuses on four specific problems created by the new jurisprudence: (1) the Court unnecessarily prohibits general jurisdiction based upon sales into a forum, which will hamper growth of jurisdictional doctrine in Internet cases; (2) by ignoring corporate activities, the Court ignores the sorts of corporate contact that would be analogous to human domicile, which, the Court says, is the paradigm of "at home"; (3) by rendering activities-based general jurisdiction practically impossible and (4) by inexplicably jettisoning the "fairness factors" of International Shoe in general jurisdiction cases, the Court exacerbates its parsimonious view of specific jurisdiction by denying judicial access to American plaintiffs injured by foreign corporations.

Though some restriction of general jurisdiction may have been appropriate, it should have been measured and well-tailored to the underlying purpose of general jurisdiction. The Court's recent effort is not.

Keywords: Personal jurisdiction, general jurisdiction, courts, practice and procedure, SCOTUS

JEL Classification: K10, K40, K41

Suggested Citation

Freer, Richard D., Four Specific Problems with the New General Jurisdiction (September 1, 2014). 15 Nevada Law Journal/2014-15, Forthcoming; Emory Legal Studies Research Paper No. 14-327. Available at SSRN: https://ssrn.com/abstract=2490034

Richard D. Freer (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
(404) 727-6838 (Phone)
(404) 727-6820 (Fax)

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