The New Privity
71 Pages Posted: 2 Jul 2019 Last revised: 4 Jul 2019
Date Written: July 2, 2019
This Article describes and critiques the arc of judicial reasoning in personal jurisdiction doctrine over the last 100 years with respect to tort claims, from MacPherson v. Buick to J. McIntyre Machinery v. Nicastro. In the early 1900s, state courts rejected the privity doctrine, a step in the products liability revolution which rejected privity as a limitation on the ability of victims of defective products to sue manufacturers and allowed the exercise of jurisdiction over a distant manufacturer. Today, the Supreme Court is reinstating a privity doctrine through the due process clause, barring suits against foreign manufacturers in many cases. The reasoning of the Court’s recent personal jurisdiction decisions echoes those of the late 1800s when privity was the rule: a reliance on abstract categories and inductive logic, unmoored from reality. The narrowing of due process — what I describe as the new privity — is problematic as a substantive matter because it is in direct conflict with the structure of state products liability law. The way the Court has arrived there is problematic because of its poor legal reasoning. Understanding these developments both allows us to predict the outcome of cases likely to come before the Court in the near term, and to better understand the relationship between form and substance in common law constitutional interpretation.
Keywords: due process, torts, personal jurisdiction, products liability, jurisprudence, common law reasoning
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