Document Type

Working Paper

Publication Date

11-5-2018

SSRN Discipline

Economics Research Network; Legal Scholarship Network; PSN Subject Matter eJournals; Political Theory eJournals; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

After more than twenty years of silence the Supreme Court has addressed personal jurisdiction six times over the last six Terms This Article examines the Court's recent decisions in terms of their effect on access to justice and the enforcement of substantive law The Court's new case law has unquestionably made it harder to establish general jurisdiction"”that is the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation Although this shift has been justifiably criticized meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework namely 1 the basic level of minimum contacts required for specific jurisdiction and 2 the test for determining whether a case can proceed on a specific jurisdiction theory rather than having to satisfy the newly restrictive general jurisdiction standardbrbrThis Article begins with a typology that identifies three situations where personal jurisdiction is most likely to threaten access to justice the homestate scenario the safetynet scenario and the aggregation scenario It then explains why the Court's recent decisions support an approach to minimum contacts that will"”in most cases"”permit a plaintiff who is injured in his or her home state to file suit there Even beyond the homestate scenario a case should be evaluated under the more lenient specific jurisdiction standard as long as there is a rational basis for the forum to adjudicate the availability of judicial remedies in that particular case This rationality standard coheres with the Court's approach to other areas of law governing the permissible reach of a state's sovereign power And it can permit jurisdiction when other courts are inadequate or unavailable the safetynet scenario and when proceeding in a single forum is necessary for effective adjudication of claims arising from a common course of conduct the aggregation scenario

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