Tuesday, January 21, 2014

Did Personal Jurisdiction Just Get Personal?

By Mike Dorf

Last week, in Daimler AG v. Bauman, the Supreme Court unanimously reversed a 9th Circuit ruling that had permitted a victim of the Argentine dirty war to sue Daimler AG in federal district court in California on the ground that Mercedes Benz (the predecessor corporation to the parent company of a subsidiary doing business in California) cooperated with human rights abuses by the Argentine junta.  The 9th Circuit had ruled that Daimler AG was an agent of the parent company, and thus its continuous and systematic contacts with California should be attributed to the parent; those continuous and systematic contacts were enough, the 9th Circuit said, to support "general jurisdiction", i.e., to permit lawsuits against the corporate defendant even when the alleged grounds for liability have no connection to the corporation's business in the forum state. The Supreme Court said that even attributing the sub's contacts to the parent company, that's not enough to sustain general (or "all-purpose") jurisdiction.  The Court said that a company is only subject to general jurisdiction in a forum in which it is "at home", and since Daimler AG is not incorporated in California nor does it have its principal place of business there, it is not any more "at home" in California than in any other state where it does a large volume of business.

Justice Ginsburg wrote for herself and seven other Justices.  The Court was unanimous in its bottom line but Justice Sotomayor concurred only in the judgment. She thought that the Court should have held that personal jurisdiction over the defendant was unreasonable (and thus impermissible), given the nature of the case and the parties.  Because reasonableness is a separate prong of the personal jurisdiction inquiry, Justice Sotomayor would not have reached the issue that her colleagues resolved but she made clear that if she were to reach it, she would disagree with the majority.  In her view, the prior cases are best read to establish that a corporation can be subject to general jurisdiction in multiple fora, so long as it has systematic and continuous contacts with each forum.

Think of the dispute between Justice Sotomayor and her colleagues as turning on whether a corporation can have more than two homes (for personal jurisdiction purposes).  Justice Sotomayor says yes; the rest of the Court very strongly implies no.  (For the majority, it appears that a corporation is only at home in its state of incorporation and the place where it has its principal place of business, but the majority doesn't strictly rule out the possibility of another "home").

Are you bored yet?  I certainly am.  But wait.  This could get juicy.  The ruling produced a rather testy exchange between, on the one hand, Justice Sotomayor and, on the other hand, Justice Ginsburg and the rest of the Court.  Given that the two of them typically agree in ideologically charged cases, and that they in fact agreed on the outcome of this case, one might wonder whether the testiness of the exchange suggests some personal animosity between Justice Sotomayor and at least Justice Ginsburg but possibly other Justices.  For example, Josh Blackman nicely captures the substance and tone of the exchange--including dueling accusations that the other side is dishonestly reading either prior cases or the record--and also notes a prior occasion when other Justices have made similar accusations against Justice Sotomayor.

Moreover, the testiness is most testy over how to read the somewhat cryptic 1952 case of Perkins v. Benguet.  It's hard to see why anyone would get especially exercised about such an arcane question, unless there was some pre-existing animosity.

So, what's the deal?  Are eight Justices ganging up on Justice Sotomayor because of her tendency at oral argument to interrupt lawyers before they are finished answering questions posed by her colleagues?  Did Justice Sotomayor take more than her fair share of nuts from the communal candy dish at the Court's holiday party?

Before everyone gets too excited, let me suggest a more banal explanation. The most pointed digs in the respective opinions appear in footnotes.  The footnotes in the Ginsburg majority opinion that respond to the Sotomayor opinion would have likely been added after the other Justices had joined in Ginsburg's opinion. And although the Ginsbug footnotes are hard-hitting, they don't exactly come right out and say "Justice Sotomayor is a liar", so it's not surprising that the seven Justices who joined Ginsburg's opinion did not thereafter beseech her to remove the tough footnotes.

Put differently, Justice Sotomayor probably "started it", and did so entirely on the merits:  she was worried that the majority opinion was constraining plaintiffs' rights to sue.  Meanwhile, Justice Ginsburg may well have taken some offense at the accusation, both as a civil procedure expert and as someone who sees herself as sympathetic to plaintiffs.  From there, things could have easily escalated as each of the Justices' respective law clerks looked for any ammunition they could find.  Of course, each Justice bears responsibility for accepting what her respective law clerks may have proposed adding to the footnotes, but it is easy to imagine that no one was paying all that much attention to the tone of the footnotes.

So yes, it's possible that some of the snark reflects underlying personal tensions, but the case is no smoking gun.

4 comments:

Joe said...

It is a bit unseemly how repeatedly judicial opinions up to the Supreme Court level has these little snark fests. Scalia is obviously a fan but he isn't alone.

Sotomayor does seem to rub people the wrong way from time to time. To me, it comes out in oral arguments, though it does seem she toned down her style the last year or two. I can't recall exact details, do recall Ginsburg making some comment at orals in response to something she said.

Seems the NY/NJ justices have that flavor -- Alito and obviously Scalia have an edge. Kagan does too but she expresses herself somewhat differently. Ginsburg can hold her own and shows her annoyance at times though she doesn't have the snark of the first three. Clerks might have something to do with it too.

Justices get excited about these things, I would add -- I assume in your profession, some professors can get pretty worked up about some rather obscure stuff. Your analysis near the ends seems quite possible. Still, it had notable bite -- doubt they really care much, but they shouldn't be surprised that some people took notice.

Evin Terna said...
This comment has been removed by the author.
Evin Terna said...

Alito and obviously Scalia have an edge. Kagan does too but she expresses herself somewhat differently. Ginsburg can hold her own and shows her annoyance at times though she doesn't have the snark of the first three. Clerks might have something to do with it too.http://fifa14.mmo18.com/ | lol.mmo18.com

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