This week, the Supreme Court issued its decision in Daimler AG v. Bauman, holding that a U.S. District Court in California does not have personal jurisdiction over a German corporation to hear a foreign tort claim brought by Argentinian plaintiffs, even when that corporation has U.S. subsidiaries that do frequent business in California and can be said to be “at home” in California. Actually, the Court went much further than that: not only does the U.S. District Court in the Northern District of California not have jurisdiction to hear the claim against Daimler, the Court’s decision leaves the strong implication that neither would any other court in the U.S., whether state or federal. In Bauman, the Court was forced to assume that Daimler’s U.S. subsidiaries – who are incorporated in or have a principal place of business in New Jersey and Delaware – were “at home” in California. Even then, the Court concluded that no jurisdiction over Daimler existed. Since bringing suit in a state where Daimler’s subsidiaries were “at home” was not sufficient to confer jurisdiction, the Bauman plaintiffs’ claims would apparently fail no matter where in the U.S. it had been brought.
What is also of particular interest in Bauman, though, is the majority opinion’s relatively detailed recap of the history of general jurisdiction and specific jurisdiction. In doing so, the Court takes pains to portray Bauman as the natural and predictable progeny of the Court’s 1945 decision in International Shoe Co. v. Washington, as well as an extension of its more recent decisions in J. McIntyre Machinery, Ltd. v. Nicastro (2011) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). The Court’s decision reaffirms that, post-International Shoe, general jurisdiction has become the red-headed stepchild of the Supreme Court’s personal jurisdiction jurisprudence: yes, it does exist, but it’s not particularly significant, and whenever possible we’re going to try to focus on specific jurisdiction instead.
But Bauman’s history of personal jurisdiction neglects one very significant part of the story: the origins of specific jurisdiction. Although Bauman claims that, post-International Shoe, “specific jurisdiction has been cut loose from Pennoyer’s sway,” this metaphor mistakenly assumes that the two were ever pinned together in the first place. Specific jurisdiction was not derived from Pennoyer, nor from common law conceptions of general jurisdiction. Specific jurisdiction is instead the bastard child of corporate law and the Full Faith and Credit Clause, first born out of state legislatures’ needs to regulate the interstate activities of corporate entities, and later transformed by federal courts into a constitutional due process doctrine which imposed federal limits on state regulation of commerce. See, e.g., International Harvester Co. of America v. Kentucky, 234 US 579 (1914); and Whitaker v. Macfadden Publications, Inc., 70 App.D.C. 165 (1939).
Today’s judicial doctrine of specific jurisdiction was created as a statutory scheme to ensure that corporations could be sued even when they were acted outside of the state in which they were incorporated. Well over a century later, International Shoe adopted the doctrine, jettisoned its statutory origins, and announced that it was now a constitutional basis for regulating the reach of state courts via the Due Process clause of the Fourteenth Amendment. Unsurprisingly, the resulting legal concept is neither seamless nor entirely internally coherent. Although International Shoe attempted to shoehorn specific jurisdiction into the Court’s pre-existing framework of personal jurisdiction, but personal jurisdiction’s doctrinal lineage is very different from that of specific jurisdiction. Personal jurisdiction, as an expression of a state’s inherent sovereign authority, is a creature of international law. As result of this mismatch between jurisdictional concepts, nearly 70 years after International Shoe, the Supreme Court is still grappling today with how to resolve this basic conflict between the competing sovereignty-based and due process-based regimes of personal jurisdiction.