The New Privity

Abstract

Since 2011, the Supreme Court’s personal jurisdiction jurisprudence has turned to a discredited style of legal reasoning which had its heyday in the late nineteenth century. This style of legal reasoning involves resort to abstract concepts and inductive logic that appears rule-like and claims to provide clarity and consistency. In fact, this approach is not a more useful or predictable method deciding concrete cases than the more modern functional approach. The Court has also returned to discredited doctrinal rules from that era. The new personal jurisdiction jurisprudence is inconsistent with state substantive law and threatens to undermine traditional state police powers.
There is an alternative. Instead of trying to come up with a general principle of personal jurisdiction, the Court could adopt rules of personal jurisdiction tailored to the particular substantive law at hand. Different rules could govern products liability, contracts, etc. as appropriate, and these rules should be attentive to the police powers of the states. Either the old balancing test or new conceptual approach will eventually yield such a set of rules anyway, so the Court might as well impose them explicitly and quit the pretense of a general, abstract principle for deciding personal jurisdiction challenges.

Keywords: due process, torts, personal jurisdiction, products liability, jurisprudence, common law reasoning