Title: The Stealth Revolution in Personal Jurisdiction
Abstract: Since 2011 the Roberts Court has decided six personal jurisdiction cases, each time imposing new constitutional restrictions on the power of courts and limiting plaintiffs’ access to justice. Although many commentators have recognized that the Court is radically altering the ground rules for personal jurisdiction, the Court’s opinions have routinely justified the holdings by claiming to follow precedent and well settled law. On the Court, only Justice Sotomayor, in separate dissenting and concurring opinions, has called attention to the Court’s refashioning of the law.
Focusing on the 2017 decision in Bristol-Myers Squibb Co. v. Superior Court, this Article critically examines the ongoing “stealth revolution.” It shows that the issues in litigation were the result of uncertainties in the law created by prior Supreme Court decisions and that the lower courts made sustained efforts to apply applicable norms. It argues that, by claiming to rely on precedent, the Court avoided the need to offer a clear rule of decision or to explain the policies that motivated its changing approach to personal jurisdiction. It further argues that the Court’s opinion has created unnecessary uncertainties about the scope of its decision. And it contends that the Court’s assertion that the issues are governed by settled law fosters the narrative that lower courts are deliberately evading the law, which both devalues the work of the lower courts and erodes public confidence in the judiciary.
The Article makes a significant contribution to understanding the broader implications of narrowly decided constitutional decisions and will be especially useful for lower courts, litigators, and scholars who are trying to make sense of the gap between the Court’s holdings and its opinions in the area of personal jurisdiction.
Publication Year: 2018
Publication Date: 2018-01-01
Language: en
Type: article
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