Justice Black Was Right About International Shoe, But for the Wrong Reason

50 U. Pac. L. Rev. 587 (2019)

Emory Legal Studies Research Paper Forthcoming

18 Pages Posted: 4 Dec 2020

Date Written: December 12, 2019

Abstract

The iconic 1945 case of International Shoe v. Washington injected into personal jurisdiction analysis considerations of "fair play and substantial justice." The appeal to pragmatic fairness was a startling contrast to the rigid, nineteenth-century, power-based regime of Pennoyer v. Neff. But Justice Black, concurring in International Shoe, was troubled by the broad, vague appeal to fairness. He feared that judges would use their personal sense of natural justice to restrict state-court exercise of personal jurisdiction.

Anyone studying the twenty-first century state of personal jurisdiction knows that Justice Black was on to something. The new era, which started in 2011 with J. McIntyre and Goodyear and has continued through Bristol-Myers Squibb, is indeed sclerotic. The Court has restricted general personal jurisdiction radically, and without explanation. At the same time, it has restricted specific jurisdiction with cramped views of how a defendant forges a "contact" with the forum and how "related" a claim must be to support jurisdiction.

But Justice Black's reasoning was wrong. The limited state of modern doctrine is not the result of finding that jurisdiction would offend "traditional notions of fair play and substantial justice." To the contrary, it is the result of the Court's avoiding any consideration of whether jurisdiction would be fair. The state of personal jurisdiction today is cramped not because of the fairness factors, but despite them.

Keywords: personal jurisdiction, due process, access to justice, in personam jurisdiction

JEL Classification: K-10, K-40, K-41

Suggested Citation

Freer, Richard D., Justice Black Was Right About International Shoe, But for the Wrong Reason (December 12, 2019). 50 U. Pac. L. Rev. 587 (2019), Emory Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3729552

Richard D. Freer (Contact Author)

Emory University School of Law ( email )

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