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.

NEXT: Today in Supreme Court History: March 26, 2012

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “She writes with such clarity and ease. Her opinions can be transplanted to a casebook with minimal editing.”

    I like to follow (some) Supreme Court decisions, not so much Supreme Court Justices, so…do the justices really write their own opinions?

    I would have guessed some clerk does that with the Justices acting as final reviewers/approvers.

    1. Good writing is good editing as they say. And while the clerks undoubtedly write the first drafts in most cases (Stevens was a notable exception: he wrote the draft and then let the clerks tear it apart), the justice is going to heavily edit until it’s their own voice. That’s why even over decades of different clerks you can tell that a justice has a distinct style.

  2. Hi, Hon. The modern view of accidents is that they are caused by factors coming together. Like 12. The prevention of any one prevents the mishap. There is no but for. There is no chain of causation. Those are all lawyer supernatural, dumbass, evil fraudulent ideas. Your views are supernatural and violate the Establishment Clause. Dumbass, Ivy indoctrinated, Commie feminist. Is there anything stupider than an Supreme Court Justice?

    1. Geez,
      You are a master of using many words to say nothing but anodyne insults.

      1. Anodyne = “not likely to provoke dissent or offense; inoffensive, often deliberately so.”

        Isn’t “anodyne insults” self contradictory?

  3. Here, Hon. Please read this Wikipedia article. When you cite each other, one dumbass citing an even stupider dumbass, it makes people want to bang their head on the wall to stop the pain of reading your legal utterance. This article is written at the 8th grade reading level, you can handle it, Hon.


    Of all the lawyer dumbasses, none is stupider than a Supreme Court Justice.

    As a Jew, Hon, do you know one effect of appeal to authority? The Holocaust, you dumbass lawyer feminist.

    1. Your ‘raving lunacy’ lock is on.

      1. You are the one who believes cars over 20 years old have a manufacturing defect. You are just silly, and trying to steal our money. Stop defending the indefensible.

        1. You’re a raving loon.

        2. How about the ignition switch on a 19-year-old Chevy?
          GM admits it is defective and has recalled the vehicle.

          1. Ed,
            Wise up.
            When you defend a crazy like Behar, you only make yourself look bad.

      2. Queenie, what was the gender marked on your birth certificate, Hon?

    2. “As a Jew, Hon, do you know one effect of appeal to authority? The Holocaust, you dumbass lawyer feminist.”
      That has to be one of the most hateful comments that I have ever read in this blog.

      Ban Behar.

      1. “That has to be one of the most hateful comments that I have ever read in this blog.”

        Welcome, newbie.

  4. The issue here was actually debated among the Circuits. There are many opinions that hold that it is enough if the contacts “relate to” the claim, and others that hold that they contacts must be the cause of the claim. So, yes, it was an unclear point of law before this.

    This decision has to be viewed as a reaction to the Goodyear/Daimler line of cases, which upended decades of understanding about general jurisdiction. Ginsburg was not as smart as she thought she was, and those cases, IMO, were a diaster. Before them, Ford would have been subject to general jurisdiciton, and the whole issue would be moot.

    I think this new Ford opinion is, to some extent, a concession that if we have cut back on general jurisdiction, we have to be more generous on specific jurisdiction. (Which perhaps makes sense in the overall fairness scheme of things.)

    1. Wasn’t that what sotomayor was basically saying in her Daimler concurrence?

  5. Hi, Bored. Do you think there is jurisdiction, specific or general, when you drive cars over 20 years old and ram them into each other? What is wrong with you?

    1. Hi Daivd, do you know the difference between “defective” and “old”?

      1. Ed,
        He does not know the difference because he is both and conflates the two.

    2. Hi, guy who couldn’t get admitted to the bar: you are confusing merits and jurisdiction.

  6. Everyone agreed on the correct result. To the extent that the concurrers have an issue with this fine point or that in the International Shoe analysis, nothing they propose will lead to different results in 90-odd percent of imaginable cases. All Gorsuch is up to is changing the terminology and lecturing his peers.

    1. Like I said on the other thread: it’s pointless contrarianism.

    2. I dunno, I think he was driving at something that would mark a pretty significant change in the law, though he ended up noncommittal. He flagged corporate registration jurisdiction and applying Burnham “tag” jurisdiction to corporations as two theories that may have been consistent with the 14th Amendment as ratified. If the court fully endorsed either of those theories, that would be a pretty big deal (the latter is downright radical). Both do away with the requirement that the suit relate to the corporation’s actions within the forum (specific jurisdiction), and would thus make it much easier to bring mass actions. Either would do a lot to undo the damage of the Bauman decision.

  7. Interesting projection by Prof. Blackman, inferring a progressive motive for Justice Kagan similar to his own conservative result-oriented approach.

Please to post comments