In six personal jurisdiction decisions over the last nine years, the Roberts Court upended several previously accepted jurisdictional norms. Academic commentaries on these decisions are mostly critical, while corporate business interests and the defense bar largely celebrate the results. Some academic critics suggest the Court’s new jurisdictional revolution masquerades the Justices’ pro-business, anti-consumer, and anti-litigant policy preferences. Others hypothesize that the decisions could stem from the Court’s formalistic respect for state regulatory and territorial boundaries vis-à-vis sovereign sister-state interests and transnational comity concerns.

Two cases currently pending before the Supreme Court may settle this debate. During the October 2020 Term, the Court will consider consolidated products liability cases against Ford Motor Company—one from Minnesota and one from Montana—that raise a question going to the heart of traditional state judicial authority: Do state courts have sovereign judicial power to protect their citizens from allegedly dangerous products by compelling a product manufacturer conducting extensive in-state marketing and sales to answer claims for its products causing injury in the state but not designed, manufactured, or originally sold there?

If the Court ultimately affirms the state courts’ jurisdictional assertions, then the Roberts Court’s personal jurisdiction jurisprudence likely prioritizes horizontal federalism and international comity as independent due process considerations, placing new restrictions on state judicial authority when the forum state’s regulatory authority is minimal compared to that of other sovereigns. If, however, the Court reverses the state court rulings, then the Court will have prioritized policy concerns championed by corporate defendants—limiting litigation exposure and better correlating litigation risks to in-state sales volume—over the traditionally well-accepted adjudicative reach of state courts. The Court’s choice between state judicial power and corporate interests here will foreshadow not only the future of jurisdictional doctrine, but also the broader availability of access to justice under the Roberts Court.

Continue reading Ford‘s Jurisdictional Crossroads.