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Access to Justice, Rationality, and Personal Jurisdiction

Posted by on Friday, October 19, 2018 in Articles, Volume 71, Volume 71, Number 5.


After more than twenty years of silence, the Supreme Court has
addressed personal jurisdiction six times over the last six Terms. This
Article examines the Court’s recent decisions in terms of their effect on
access to justice and the enforcement of substantive law. The Court’s new
case law has unquestionably made it harder to establish general
jurisdiction—that is, the kind of jurisdiction that requires no affiliation
at all between the forum state and the litigation. Although this shift has
been justifiably criticized, meaningful access and enforcement can be
preserved through other aspects of the jurisdictional framework, namely
(1) the basic level of minimum contacts required for specific jurisdiction,
and (2) the test for determining whether a case can proceed on a specific
jurisdiction theory rather than having to satisfy the newly restrictive
general jurisdiction standard.

This Article begins with a typology that identifies three situations
where personal jurisdiction is most likely to threaten access to justice:
the home-state scenario, the safety-net scenario, and the aggregation
scenario. It then explains why the Court’s recent decisions support an
approach to minimum contacts that will—in most cases—permit a
plaintiff who is injured in his or her home state to file suit there. Even
beyond the home-state scenario, a case should be evaluated under the
more lenient specific jurisdiction standard as long as there is a rational
basis for the forum to adjudicate the availability of judicial remedies in
that particular case. This rationality standard coheres with the Court’s
approach to other areas of law governing the permissible reach of a
state’s sovereign power. And it can permit jurisdiction when other courts
are inadequate or unavailable (the safety-net scenario) and when
proceeding in a single forum is necessary for effective adjudication of
claims arising from a common course of conduct (the aggregation

Adam N. Steinman