Monday, December 12, 2011
Richard Freer (Emory University) has posted Personal Jurisdiction in the Twenty-First Century: The Ironic Legacy of Justice Brennan to SSRN.
In 2011, the Supreme Court decided two personal jurisdiction cases. They are the Court's first personal jurisdiction decisions in 21 years. More remarkably, they are the first cases since the Eisenhower Administration in which the Court has applied the iconic International Shoe decision without the participation of Justice William J. Brennan. From McGee in 1957 through Burnham in 1990, Brennan was there. No justice wrote more opinions about personal jurisdiction than he. Yet, for all his efforts to explain his position and persuade his colleagues, he commanded a majority only once, in Burger King in 1985.
This article traces Justice Brennan’s personal jurisdiction jurisprudence. Through 1984, he adopted a 'mélange' approach, in which all relevant factors are considered ad hoc under an overarching rubric of fairness. Justice Black pioneered the approach, and Brennan championed it for decades. When it became apparent that the Court was going in another direction – one which gave primacy to considerations of defendant-initiated contact with the forum rather than to fairness – Brennan capitulated. This enabled him to write the majority opinion in Burger King, in which he attempted to convert the regnant contact-focused theory into one engaging broader considerations of fairness. The century (and Brennan’s career) ended with the Court’s lamentable efforts in Asahi and Burnham, in which no view could muster more than four votes on the Court.
Now we have a new century and two new cases. Though Brennan is cited in each opinion in the two cases, this article concludes that the Court has rejected virtually all of Brennan’s positions in personal jurisdiction. But Brennan’s jurisprudence may have an unexpected and ironic legacy, tracing to a little-noticed portion of his Burger King opinion. Brennan created a regime in which it is virtually impossible to defeat the exercise of jurisdiction by appealing to reasonableness or fairness. The only realistic way for a court to reject jurisdiction is to find that the defendant created no contact with the forum. This explains the obsession with contact in the recent cases and the strained efforts of six justices in one of the new cases to resist finding that a manufacturer can be sued in the state in which its machine caused physical injury.