September 12, 2011
Personal jurisdiction (for defendants without the state, at least) requires minimum contacts and a judicial assessment that the assertion of personal jurisdiction be reasonable. The absence of the latter is the thing upon which Asahi was resolved; it was unreasonable to hale Asahi into California state court.
Yet, in the recent Nicastro case, as Howard Wasserman pointed out, neither Justice Kennedy (writing for the plurality) nor Justice Breyer (writing a concurrence with Justice Alito) mentioned the reasonableness prong of the modern PJ test. And that's a bit puzzling, because both cited hypos (if memory serves -- Florida farmers, Appalachian potters, Kenyan coffee makers) where the reasonableness part of the PJ test would have been very relevant in determining PJ. Speculations as to why reasonableness went unmentioned by Kennedy and Breyer?
September 12, 2011 | Permalink
Justice Breyer did not need to reach fairness because he determined that, under existing precedent, plaintiff did not establish defendant's purposeful availment of New Jersey. He does seem to agree with Justice Ginsburg, however, that fairness is an important part of the inquiry (he mentions fairness to defendant three or four times).
Justice Kennedy appears to do away with the balancing test for fairness by making it redundant: “In products-liability cases like this one, it is the defendant’s purposeful availment that makes jurisdiction consistent with ‘traditional notions of fair play and substantial justice.’” Thus, if there is purposeful availment because defendant has manifested an intention to submit to the forum State’s sovereign authority, it cannot offend traditional notions of fair play and substantial justice for the forum State’s court to exercise jurisdiction over the defendant? That conclusion is consistent with his statement that "Justice Brennan’s [Asahi] concurrence, advocating a rule based on general notions of fairness and foreseeability, is inconsistent with the premises of lawful judicial power."
I'll have more to say about these issues in an article about Nicastro I am working on, but that is my take on answering your question.
Chapman University School of Law
Posted by: Henry Noyes | Sep 12, 2011 11:22:09 AM