The False Promise of General Jurisdiction

28 Pages Posted: 1 Oct 2021 Last revised: 29 Apr 2022

See all articles by Maggie Gardner

Maggie Gardner

Cornell Law School

Pamela K. Bookman

Fordham University School of Law

Andrew Bradt

University of California, Berkeley - School of Law

Zachary D. Clopton

Northwestern University - Northwestern Pritzker School of Law

D. Theodore Rave

University of Texas at Austin - School of Law

Date Written: April 25, 2022

Abstract

The Supreme Court has said that general jurisdiction provides at least one clear and certain forum to sue defendants, and that assumption has begun to shape the Court’s understanding of specific jurisdiction. But that assumption is wrong. General jurisdiction does not provide a guaranteed U.S. forum for foreign defendants or in cases involving multiple defendants. And even when defendants can be sued “at home,” such cases may be (and not infrequently are) dismissed for forum non conveniens, sometimes even when no alternative forum is available.

Nor is a regime reliant on a general jurisdiction backstop desirable. The Court’s narrowed version of general jurisdiction creates incentives for states to favor local defendants—as Michigan has done through choice-of-law rules that give preference to lex fori and substantive laws that favor car manufacturers. Overreliance on general jurisdiction also channels litigation to states that may not want it—a concern already voiced by Delaware courts.

This essay warns against developing the law of personal jurisdiction on the assumption that general jurisdiction will guarantee an available forum in which to sue defendants. Instead, we argue that the primary engine of personal jurisdiction must remain a flexible doctrine of specific jurisdiction. Rather than hunting for new formalisms in specific jurisdiction’s relatedness requirement, the Justices should embrace specific jurisdiction’s reasonableness factors as a ready-made tool for answering their recent worries.

Keywords: civil procedure, personal jurisdiction, general jurisdiction, specific jurisdiction, Roberts Court, forum non conveniens, conflicts of law

Suggested Citation

Gardner, Maggie and Bookman, Pamela and Bradt, Andrew and Clopton, Zachary D. and Rave, D. Theodore, The False Promise of General Jurisdiction (April 25, 2022). 73 Alabama Law Review 455 (2022), Cornell Legal Studies Research Paper No. 21-33, Fordham Law Legal Studies Research Paper No. 3933982, Northwestern Public Law Research Paper No. 22-03, Available at SSRN: https://ssrn.com/abstract=3933982

Maggie Gardner (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Pamela Bookman

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

Andrew Bradt

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Zachary D. Clopton

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

D. Theodore Rave

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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