The Volokh Conspiracy

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Did Justice Kagan place a "new gloss" on the Court's personal jurisdiction case law?

Justice Alito thinks so. Ditto Justices Gorsuch and Thomas.


Over the past decade, Justice Ginsburg had a lock on most personal jurisdiction cases. The former law professor wrote the majority opinions in Goodyear Dunlop Tires v. Brown (2011), Daimler AG  v. Bauman (2014), and BNSF Railway Co. v. Tyrrell (2017). And RBG also wrote the dissent in J. McIntyre Machinery, Ltd. v. Nicastro (2011). (The Chief assigned Justice Alito the majority in Bristol Myers Squibb v. Superior Court of California (2017)).

Now, that torch has been passed to a fellow law professor. On Thursday, Justice Kagan wrote the majority opinion in Ford Motor Co. v. Montana Eighth Judicial Dist. It is a joy to read. Part II.A summarizes the past century of personal jurisdiction caselaw in the span of three pages. Truly, masterful work. I expect, and hope, that Dean Kagan becomes the new designated hitter for all CivPro cases. She writes with such clarity and ease. Her opinions can be transplanted to a casebook with minimal editing. Really, she should write the FedCourts opinions as well. Last term, I praised her exegesis of 11th Amendment doctrine in Allen v. Cooper.

But did Kagan merely restate doctrine in Ford, or did she do something more? Justice Alito charges that something else is afoot.

My only quibble is with the new gloss that the Court puts on our case law. Several of our opinions have said that a plaintiff's claims "'must arise out of or relate to the defendant's contacts'" with the forum. See ante, at 6 (citing cases). The Court parses this phrase "as though we were dealing with language of a statute," Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979), and because this phrase is cast in the disjunctive, the Court recognizes a new category of cases in which personal jurisdiction is permitted: those in which the claims do not "arise out of " (i.e., are not caused by) the defendant's contacts but nevertheless sufficiently "relate to" those contacts in some undefined way, ante, at 8–9.

What exactly did Kagan say?

None of our precedents has suggested that only a strict causal relationship between the defendant's in-state activity and the litigation will do. As just noted, our most common formulation of the rule demands that the suit "arise out of or relate to the defendant's contacts with the forum." Id., at ___ (slip op., at 5) (quoting Daimler, 571 U. S., at 127; emphasis added; alterations omitted); see supra, at 6. The first half of that standard asks about causation; but the back half, after the "or," contemplates that some relationships will support jurisdiction without a causal showing.That does not mean anything goes. In the sphere of specific jurisdiction, the phrase "relate to" incorporates real limits, as it must to adequately protect defendants foreign to a forum. But again, we have never framed the specific jurisdiction inquiry as always requiring proof of causation—i.e., proof that the plaintiff 's claim came about because of the defendant's in-state conduct. So the case is not over even if, as Ford argues, a causal test would put jurisdiction in only the States of first sale, manufacture, and design. A different State's courts may yet have jurisdiction, because of another "activity [or] occurrence" involving the defendant that takes place in the State. Bristol- Myers, 582 U. S., at ___, ___ (slip op., at 6, 7) (quoting Goodyear, 564 U. S., at 919).

Justice Alito flags some serious practical concerns with Kagan's "gloss" on personal jurisdiction:

Recognizing "relate to" as an independent basis for specific jurisdiction risks needless complications. The "ordinary meaning" of the phrase "relate to" "is a broad one." Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383 (1992). Applying that phrase "according to its terms [is] a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everythingelse." California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 335 (1997) (Scalia, J., concurring). To rein in this phrase, limits must be found, and the Court assures us that "relate to," as it now uses the concept, "incorporates real limits." Ante, at 9. But without any indication what those limits might be, I doubt that the lower courts will find that observation terribly helpful. Instead, what limits the potentially boundless reach of "relate to" is just the sort of rough causal connection I have described.

I would leave the law exactly where it stood before we took these cases, and for that reason, I concur in the judgment.

Kagan did not respond this charge from Alito; though she responded to other aspects of Alito's concurrence. Plus, Roberts and Kavanaugh said nothing. I suspect Alito is right. He usually is.

Justice Gorsuch also addressed this issue in his concurrence. He wrote that the phrase "arise out of or relate to" has been understood as a "unit" that require causation.

Today's case tests the old boundaries from another direction. Until now, many lower courts have proceeded on the premise that specific jurisdiction requires two things. First, the defendant must "purposefully avail" itself of the chance to do business in a State. Second, the plaintiff 's suit must "arise out of or relate to" the defendant's in-state activities. Typically, courts have read this second phrase as a unit requiring at least a but-for causal link between the defendant's local activities and the plaintiff 's injuries. E.g., Tamburo v. Dworkin, 601 F. 3d 693, 708–709 (CA7 2010)(collecting cases); see also Burger King, 471 U. S., at 475 (discussing "proximate[] results"). As every first year law student learns, a but-for causation test isn't the most demanding. At a high level of abstraction, one might say any event in the world would not have happened "but for"events far and long removed.

May I digress for a moment? The last two sentences in this paragraph encapsulate why Bostock is wrong. This capacious reading of "but for" led Gorsuch astray on Title VII. Digression over.

Gorsuch then makes almost the exact same argument Alito did. Gorsuch cites  including Reiter, and flags the disjunctive conjunction:

Now, though, the Court pivots away from this understanding. Focusing on the phrase "arise out of or relate to"that so often appears in our cases, the majority asks us toparse those words "as though we were dealing with language of a statute." Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). In particular, the majority zeros in on the disjunctive conjunction "or," and proceeds to build its entire opinion around that linguistic feature. Ante, at 8–9. The majority admits that "arise out of " may connote causation. But, it argues, "relate to" is an independent clause that does not. 

What gives? Why didn't Gorsuch simply cite Alito? In many cases, he refuses to cite anyone else. There is something strange going on with Justice Gorsuch. I can't quite put my finger on it. He consistently seems to be broadcasting on his own frequency. Sometimes Justice Thomas tunes in. When a progressive result can be had, Kagan dials in. But otherwise, Justice Gorsuch is singing solo.