The False Promise of General Jurisdiction

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