Ford's Hidden Fairness Defect

11 Pages Posted: 12 Apr 2021

See all articles by Linda Sandstrom Simard

Linda Sandstrom Simard

Suffolk University Law School

Cassandra Burke Robertson

Case Western Reserve University School of Law

Charles W. (Rocky) Rhodes

South Texas College of Law

Date Written: April 11, 2021


Consolidated cases before the U.S. Supreme Court involving Ford Motor Co. will address whether a strict causal connection between a defendant’s forum contacts and the plaintiff’s claim is necessary for specific personal jurisdiction. The Court’s holding will resolve whether the plaintiffs can access a convenient forum when injured by vehicles that Ford marketed—but did not manufacture, design, or originally sell—within their home states. The decision, though, may also have another significant but less obvious consequence: truncating judicial evaluation of the jurisdictional fairness or reasonableness factors, which are designed to guarantee “fair play and substantial justice.”

These fairness factors extend a jurisdictional due process analysis beyond merely the defendant’s conduct by weighing the defendant’s litigation burdens against the plaintiff’s interest in convenient relief, the forum state’s underlying interest in the controversy, the systemic efficiency of resolving the dispute in the forum court, and the shared substantive interests of the states. These factors ensure that the interests of all the relevant institutional actors will be considered in resolving the ultimate question: Does the assertion of jurisdiction comport with fair play and substantial justice?

While Ford does not directly challenge the fairness factors, its preferred causal test weighs the defendant’s interest in the jurisdictional calculus so strongly that courts will rarely be permitted to reach these other considerations. Under Ford’s proposal, the jurisdictional analysis would end when the defendant’s contacts did not strictly give rise to the plaintiff’s claim, precluding the interests of the plaintiff, the states, and the court system from impacting the allocation of litigation to an appropriate forum. Yet defendants could still raise these other interests to escape jurisdiction when causation exists, allowing the fairness factors to be wielded as a one-way ratchet for defendants’ sole protection.

The Supreme Court’s recent personal jurisdiction jurisprudence has already taken a formalist turn that minimizes the import of the fairness factors. A further retreat into formalism—and thus a continued retreat from the fairness factors—risks undermining the due process foundations of the doctrine. While personal jurisdiction doctrine cannot ensure an ideal forum, it should not needlessly thwart the search for one. And yet that is likely to occur if the Supreme Court continues narrowing the jurisdictional focus, employing a formalist perspective privileging defendants’ interests, and constricting the remaining fairness factors into oblivion.

Keywords: Personal Jurisdiction, Specific Jurisdiction, Due Process Clause, Fairness Factors, Reasonableness Factors, Ford Motor Co. v. Montana Eighth Judicial District Court, Court Access, Formalism

JEL Classification: K00, K13, K41

Suggested Citation

Simard, Linda Sandstrom and Robertson, Cassandra Burke and Rhodes, Charles W. (Rocky), Ford's Hidden Fairness Defect (April 11, 2021). 106 Cornell Law Review Online 45 (2020), Available at SSRN:

Linda Sandstrom Simard

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

Cassandra Burke Robertson

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3302 (Phone)

Charles W. (Rocky) Rhodes (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-2918 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics