A Tale of Two Jurisdictions

The Supreme Court has recently clarified one corner of personal jurisdiction—a court’s power to hale a defendant into court—and pointed the way toward a coherent theory of the rest of the doctrine. For nearly seventy years, the Court has embraced two theories of when jurisdiction over a defendant is permissible. The traditional theory, general jurisdiction, authorizes jurisdiction when there is a tight connection between the defendant and the forum. The modern theory, specific jurisdiction, focuses more on the connection between the lawsuit itself and the forum. Although the two theories should have developed in tandem, the doctrine has become a morass. This Article makes three contributions. First, it elucidates the unsettling disjunction that has developed between general and specific jurisdiction. Second, from a doctrinal perspective, it demonstrates that the Court has severely constrained the reach of general jurisdiction in a way that would have been surprising just four years ago. In all likelihood, a corporation is subject to general jurisdiction only in its state of incorporation and where it maintains its principal place of business. This doctrinal development sensibly has restricted general jurisdiction to what I call the saturation point—the place (or very limited number of places) where a defendant cannot have more significant contacts anywhere else. Third, it posits that the concept of a saturation point for general jurisdiction logically suggests a saturation point for specific jurisdiction—that is, a place where the lawsuit itself could not have more significant ties to any other forum. The latter saturation point winds up being more of a thought experiment, but one that bookends a coherent vision of the entire doctrine. The constitutional test for the exercise of jurisdiction at either saturation point is exceedingly demanding, but personal jurisdiction can exist along a continuum. Between the two saturation points, when a particular forum has some connection to both the defendant and also the lawsuit, the constitutional test is quite lax. In other words, the notion of saturation points and the continuum between them can sensibly integrate the two forms of personal jurisdiction, which until now have had an uneasy relationship

Precedent and Preclusion

Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a “day in court” before she is bound by preclusion but not when she is bound—regarding the exact same matter—through precedent? The doctrinal tension exposes a deeper and unresolved theoretical conundrum that cuts to the heart of what due process protects. This Article argues that two coherent, but distinct, visions of due process underpin the doctrines. Preclusion is rooted in a participation-oriented theory that values participation as an inherent good, whereas precedent reflects an outcome-oriented theory that emphasizes accuracy and reliance interests. This Article argues that the outcome-oriented theory is already the dominant approach in most areas of civil procedure and outside of the litigation context. Moreover, it is a normatively superior approach that holds the potential to resolve enduring problems of serial litigation in which real parties in interest have multiple opportunities to litigate the same matter

Isolating Litigants: A Response to Pamela Bookman

In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation. And it makes an important contribution to a growing literature on how the United States, once a magnet for transnational litigation, has increasingly closed its doors to such cases. My first and principal contention is that litigation isolationism is not necessarily a coherent or volitional project. Instead, it arose through the confluence of two different strands of jurisprudence—doctrinal coherence and domestic litigation avoidance. Second, I suggest that the effect of such isolationism is perhaps more muted than Bookman suggests. For example, U.S. courts seem far more willing to embrace public law cases with a transnational valence even as they eschew increasing numbers of purely private transnational disputes. Thus, the “foreignness” of the cases that Bookman discusses might— counterintuitively—not be the driving force behind the isolationism

Jurisdictional Sequencing

Jurisdictional sequencing taps into fundamental questions about the nature and role of subject matter jurisdiction and what, if anything, a court may do before it has established jurisdiction. Because the Supreme Court has not rooted the doctrine in a clear theory, jurisdictional sequencing has engendered confusion among judges and scholars, who have been at a loss to explain it. Although a number of courts have embraced the leeway that the doctrine offers—the ability to dismiss a case on easier grounds before taking up harder jurisdictional questions—most scholars have criticized it as illegitimate or incoherent. This Article is the first to offer a theory that both explains the case law and grounds jurisdictional sequencing in a novel vision of subject matter jurisdiction’s precise role. Specifically, I develop a theory of jurisdiction as a surprisingly narrow structural limitation on courts’ power to declare substantive law. According to this view, subject matter jurisdiction protects only institutional values, including separation of powers and federalism, but not personal liberty interests

The Constitutionality of Nationwide Injunctions

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t. This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms of according relief only to the actual parties to a lawsuit. Thereafter, the Essay situates nationwide injunctions within several twentieth century remedial innovations that fundamentally altered how citizens hold government accountable. In short, nationwide injunctions are not remedial anomalies and are consistent with constitutional limits on judicial power

The Cabining of \u3cem\u3eRosenberger\u3c/em\u3e: \u3cem\u3eLocke v. Davey\u3c/em\u3e and the Broad Nondiscrimination Principle That Never Was

In Rosenberger (1995), the Supreme Court decided that the University of Virginia could not exclude religious organizations from an activities fund that subsidized student organizations. Nine years later, the Court in Locke v. Davey held that Washington could exclude students of devotional theology from a generally available scholarship program; there was, in the Court’s words, “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires. The cases seemed to contradict one another. This Note explores whether Rosenberger announced a broad principle of nondiscrimination with respect to religion and whether Davey reneged on that promise. There is a strong, though by no means dispositive, argument that Rosenberger embodies a nondiscrimination principle. Assessing whether the principle has applicability in a wider array of cases, such as Davey, requires analysis of three lines of precedent—“play in the joints” cases, governmental funding cases, and public forum cases. Davey essentially inaugurated a new era of Religion Clauses jurisprudence by reinvigorating the theory of “play in the joints.” Consequently, hardly any scholarship has addressed the theory. Scholars have also neglected how Davey affected public forum cases (like Rosenberger). Most significantly, no analysis to date has explored the interaction of these three lines of precedent. My analysis is generally positive in nature, although it has important normative implications, particularly in light of the tension between Rosenberger and Davey. Finally, I consider how courts have treated Rosenberger. Culminating with Davey, courts consistently have refused to recognize a broad nondiscrimination principle, thereby sounding the death knell for Rosenberger

Transactionalism Costs

Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion doctrine on the back end of litigation). But frequently it is neither. I propose abandoning the transactional approach in favor of one that actually achieves transactionalism’s goals. In essence, the parties must put forward all of their claims and then, with the court, negotiate the appropriate structure of the lawsuit. Preclusion will apply only to the claims that the parties and the court choose to include in the litigation package (and that the parties failed to plead initially). The proposal will achieve three main goals. First, it will give parties and courts true flexibility to determine the most efficient structure of their specific lawsuit. Second, it will give parties new autonomy—the power to shape preclusion doctrine. Finally, it will offer certainty and predictability that parties never have had before—knowing exactly how broadly preclusion will apply