James George (Texas A&M University School of Law) has posted Running on Empty: Ford v. Montana and the Folly of Minimum Contacts (George Mason Law Review, Forthcoming) on SSRN. Here is the abstract:
Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.
California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability or proximate cause. In Bristol-Myers Squibb v. Superior Court, California used the sliding scale to support jurisdiction over a class action by mostly nonresident members for a drug not made in California. The Supreme Court reversed, pointedly rejecting the sliding scale as a spurious form of general jurisdiction.
Four years later, the Court found the unconstitutional scale handy in Ford v. Montana, affirming Montana and Minnesota decisions asserting jurisdiction for local accidents involving local residents. Ford objected to suits in those states because the cars were originally sold in other states. The Supreme Court unanimously rejected Ford’s contact-causation argument, holding that Ford’s overall forum contacts—“a veritable truckload”—relate to the claims because plaintiffs would be less likely to buy a used car if it weren’t for Ford’s name and presence. Using these general contacts to find specific jurisdiction, the Court gave up the last semblance of logic in the worn-out minimum contacts test.
Ford is not an outlier but the product of an unworkable maze of a test whose precedents are a patchwork of contradictions. This article reviews the origins, confusion, and doctrinal deviation in the minimum contacts test, then focuses on the particular conceptual breakdown that occurred with the Ford decision. It includes critiques of contacts problems like imputed consent and relatedness, and balancing problems like interest analysis and interstate federalism. While the article covers a number of problems, its focus is Ford as the breaking point. The article concludes with solutions, some proposing a revised test, others arguing the benefits of a statutory scheme, and my proposal to re-focus on the historical emphasis on access to an adequate forum and a de-emphasis on vague political theories.
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Professor George does not address the original meaning of the Due Process of Law Clauses, but an originalist approach would address the important problems that he raises.
The original public meaning (OPM) of the Due Process of Law Clauses of the Fifth and Fourteenth Amendment do not support International Shoe. The OPM of the Fifth Amendment Due Process of Law Clause is quite narrow, extending only to the requirement of "process" in the sense that term has in the phrase "service of process."
The Fourteenth Amendment Due Process of Law Clause may well have a broader OPM that encompasses legal procedures generally, but in my opinion, Justice Black's view of that clause is correct: states must follow legally established procedures (the procedural law of the land) before depriving any person of life, liberty, or property. In the context of personal jurisdiction, that means that state jurisdictional statutes and service of process statutes must be followed, but the content of those statutes is a matter of state law.
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