Be Careful What You Wish for: Goodyear, Daimler, and the Evisceration of General Jurisdiction

64 Emory Law J. Online (2014), Forthcoming

Emory Legal Studies Research Paper No. 14-324

16 Pages Posted: 8 Oct 2014 Last revised: 27 Apr 2015

See all articles by Thomas C. Arthur

Thomas C. Arthur

Emory University School of Law

Richard D. Freer

Emory University School of Law

Date Written: June 15, 2014

Abstract

International Shoe and its progeny permit states to assert general jurisdiction over nonresidents that have "continuous and systematic" contacts with the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown decided in 2011, and Daimler AG v. Bauman decided in early 2014, the Supreme Court made a sharp break from these cases, stating that general jurisdiction based on minimum contacts now exists only where a defendant is "at home." The opinions in these cases are unpersuasive. While the Court purported to follow International Shoe and its two prior decisions on general jurisdiction, this simply is not so. Nor does the Court justify its use of an analogy to the traditional basis of domicile to determine to legitimate scope of contacts based jurisdiction. Arguably, an analogy to presence would be more apt. Worse, these two cases, when added to the Court’s grudging approach to specific jurisdiction, put some plaintiffs at risk of being unable to bring a defendant to justice in an American court. Goodyear and Daimler could have been decided on far narrower grounds; the Court should read them in the future to be limited to those grounds. It should restrict the novel "at home" test to cases that have no relation at all, not even the plaintiff’s residence, to the forum state. For all other cases of general jurisdiction the Court should provide a "floor" of appropriate" systematic and continuous" contacts necessary in every case. And it should further direct the lower courts to employ the "fairness factors" developed in its specific jurisdiction cases to ensure that jurisdiction will be available in those cases in which it is still needed.

Keywords: personal jurisdiction, general jurisdiction, adjudicatory jurisdiction, courts, practice and procedure, SCOTUS

JEL Classification: K10, K40, K41

Suggested Citation

Arthur, Thomas C. and Freer, Richard D., Be Careful What You Wish for: Goodyear, Daimler, and the Evisceration of General Jurisdiction (June 15, 2014). 64 Emory Law J. Online (2014), Forthcoming; Emory Legal Studies Research Paper No. 14-324. Available at SSRN: https://ssrn.com/abstract=2506665 or http://dx.doi.org/10.2139/ssrn.2506665

Thomas C. Arthur

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-5792 (Phone)
404-727-6820 (Fax)

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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