Ford Motor Co. v. Montana Eighth Judicial Dist.

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the judgment.¶

Since International Shoe Co. v. Washington , 326 U. S. 310 (1945), this Court’s cases have sought to divide the world of personal jurisdiction in two. A tribunal with “general jurisdiction” may entertain any claim against the defendant. But to trigger this power, a court usually must ensure the defendant is ''at home'' in the forum State. Daimler AG v. Bauman , 571 U. S. 117, 137 (2014). Meanwhile, “specific jurisdiction” affords a narrower authority. It applies only when the defendant ''purposefully avails'' itself of the opportunity to do business in the forum State and the suit ''arise[s] out of or relate[s] to’ ” the defendant’s contacts with the forum State. Burger King Corp. v. Rudzewicz , 471 U. S. 462, 472, 475 (1985).¶

While our cases have long admonished lower courts to keep these concepts distinct, some of the old guardrails have begun to look a little battered. Take general jurisdiction. If it made sense to speak of a corporation having one or two “homes” in 1945, it seems almost quaint in 2021 when corporations with global reach often have massive operations spread across multiple States. To cope with these changing economic realities, this Court has begun cautiously expanding the old rule in ''exceptional case[s].'' BNSF R. Co. v. Tyrrell , 581 U. S. ___, ___ (2017) (slip op., at 10).¶

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.¶

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 to parse 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.¶

Where this leaves us is far from clear. For a case to “relate to” the defendant’s forum contacts, the majority says, it is enough if an “affiliation” or “relationship” or “connection” exists between them. Ante, at 6, 12, 16. But what does this assortment of nouns mean ? Loosed from any causation standard, we are left to guess. The majority promises that its new test “does not mean anything goes,” but that hardly tells us what does. Ante, at 9. In some cases, the new test may prove more forgiving than the old causation rule. But it’s hard not to wonder whether it may also sometimes turn out to be more demanding. Unclear too is whether, in cases like that, the majority would treat causation and “affiliation” as alternative routes to specific jurisdiction, or whether it would deny jurisdiction outright.¶

For a glimpse at the complications invited by today’s decision, consider its treatment of North Dakota and Washington. Those are the States where Ford first sold the allegedly defective cars at issue in the cases before us. The majority seems to suggest that, if the plaintiffs had sought to bring their suits in those States, they would have failed. The majority stresses that the “only connection” between the plaintiffs’ claims and North Dakota and Washington is the fact that former owners once bought the allegedly defective cars there. Ante, at 15. But the majority never tells us why that “connection” isn’t enough. Surely, North Dakota and Washington would contend they have a strong interest in ensuring they don’t become marketplaces for unreasonably dangerous products. Nor is it clear why the majority casts doubt on the availability of specific jurisdiction in these States without bothering to consider whether the old causation test might allow it. After all, no one doubts Ford purposefully availed itself of those markets. The plaintiffs’ injuries, at least arguably, “arose from” (or were caused by) the sale of defective cars in those places. Even if the majority’s new affiliation test isn’t satisfied, don’t we still need to ask those causation questions, or are they now to be abandoned?¶

Consider, too, a hypothetical the majority offers in a footnote. The majority imagines a retiree in Maine who starts a one-man business, carving and selling wooden duck decoys. In time, the man sells a defective decoy over the Internet to a purchaser in another State who is injured. See ante , at 13, n. 4. We aren’t told how. (Was the decoy coated in lead paint?) But put that aside. The majority says this hypothetical supplies a useful study in contrast with our cases. On the majority’s telling, Ford’s “continuous” contacts with Montana and Minnesota are enough to establish an “affiliation” with those States; by comparison, the decoy seller’s contacts may be too “isolated” and “sporadic” to entitle an injured buyer to sue in his home State. But if this comparison highlights anything, it is only the litigation sure to follow. For between the poles of “continuous” and “isolated” contacts lie a virtually infinite number of “affiliations” waiting to be explored. And when it comes to that vast terrain, the majority supplies no meaningful guidance about what kind or how much of an “affiliation” will suffice. Nor, once more, does the majority tell us whether its new affiliation test supplants or merely supplements the old causation inquiry.¶

Not only does the majority’s new test risk adding new layers of confusion to our personal jurisdiction jurisprudence. The whole project seems unnecessary. Immediately after disavowing any need for a causal link between the defendant’s forum activities and the plaintiffs’ injuries, the majority proceeds to admit that such a link may be present here. Ante, at 14. The majority stresses that the Montana and Minnesota plaintiffs before us “might” have purchased their cars because of Ford’s activities in their home States. They “may” have relied on Ford’s local advertising. And they “may” have depended on Ford’s promise to furnish in-state servicers and dealers. If the majority is right about these things, that would be more than enough to establish a butfor causal link between Ford’s in-state activities and the plaintiffs’ decisions to purchase their allegedly defective vehicles. Nor should that result come as a surprise: One might expect such causal links to be easy to prove in suits against corporate behemoths like Ford. All the new euphemisms—“affiliation,” “relationship,” “connection”—thus seem pretty pointless. 1¶

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With the old International Shoe dichotomy looking increasingly uncertain, it’s hard not to ask how we got here and where we might be headed.¶

Before International Shoe , it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court’s competency normally depended on the defendant’s presence in, or consent to, the sovereign’s jurisdiction. But once a plaintiff was able to “tag” the defendant with process in the jurisdiction, that State’s courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State. Pennoyer v. Neff , 95 U. S. 714, 733 (1878); Burnham v. Superior Court of Cal. ,¶

------ County of Marin , 495 U. S. 604, 610–611 (1990); J. Story, Commentaries on the Conflict of Laws 912–913 (3d ed. 1846); Massie v. Watts , 6 Cranch 148, 157, 161–162 (1810). 2¶

1 The majority says personal jurisdiction should not turn on a plaintiff’s ability to “allege” or “establish” his or her reasons for doing business with the defendant. Ante , at 14. But the implicit assumption here—that the plaintiff bears the burden of proving personal jurisdiction—is often mistaken. Perhaps because a lack of personal jurisdiction is a waivable affirmative defense, some States place the burden of proving the defense on the defendant. Even in places where the plaintiff bears the burden, I fail to see why it would be so terrible (or burdensome) to require an individual to plead and prove his or her reasons for purchase. Frequently, doing so may be simple—far simpler than showing how the defendant’s connections with the jurisdiction satisfy a new and amorphous “affiliation” test.¶

International Shoe ’s emergence may be attributable to many influences, but at least part of the story seems to involve the rise of corporations and interstate trade. See Honda Motor Co. v. Oberg , 512 U. S. 415, 431 (1994). A corporation doing business in its State of incorporation is one thing; the old physical presence rules for individuals seem easily adaptable to them. But what happens when a corporation, created and able to operate thanks to the laws of one State, seeks the privilege of sending agents or products into another State?¶

Early on, many state courts held conduct like that renders an out-of-state corporation present in the second jurisdiction. And a present company could be sued for any claim, so long as the plaintiff served an employee doing corporate business within the second State. E.g. , Pennsylvania Lumbermen’s Mut. Fire Ins. Co. v. Meyer , 197 U. S. 407, 413–415 (1905). Other States sought to obviate any potential question about corporate jurisdiction by requiring an out-ofstate corporation to incorporate under their laws too, or at least designate an agent for service of process. Either way, the idea was to secure the out-of-state company’s presence or consent to suit. E.g. , Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co. , 243 U. S. 93,¶

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2 Some disagree that due process requires even this much. Recent scholarship, for example, contends Pennoyer ’s territorial account of sovereign power is mostly right, but the rules it embodies are not “fixed in constitutional amber”—that is, Congress might be able to change them. Sachs, Pennoyer Was Right, 95 Texas L. Rev. 1249, 1255 (2017). Others suggest that fights over personal jurisdiction would be more sensibly waged under the Full Faith and Credit Clause. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 3 (1945). Whether these theories are right or wrong, they at least seek to answer the right question—what the Constitution as originally understood requires, not what nine judges consider “fair” and “just.”¶

95–96 (1917).¶

Unsurprisingly, corporations soon looked for ways around rules like these. No one, after all, has ever liked greeting the process server. For centuries, individuals facing imminent suit sought to avoid it by fleeing the court’s territorial jurisdiction. But this tactic proved “too crude for the American business genius,” and it held some obvious disadvantages. See Jackson, What Price “Due Process, ” 5 N. Y. L. Rev. 435, 436 (1927). Corporations wanted to retain the privilege of sending their personnel and products to other jurisdictions where they lacked a charter to do business. At the same time, when confronted with lawsuits in the second forum, they sought to hide behind their foreign charters and deny their presence. Really, their strategy was to do business without being seen to do business. Id ., at 438 (“No longer is the foreign corporation confronted with the problem ‘to be or not to be’—it can both be and not be!”).¶

Initially and routinely, state courts rejected ploys like these. See, e.g., Pullman Palace Car Co. v. Lawrence , 74 Miss. 782, 796–799, 22 So. 53, 55–56 (Miss. 1897). But, in a series of decisions at the turn of the last century, this Court eventually provided a more receptive audience. On the one hand, the Court held that an out-of-state corporation often has a right to do business in another State unencumbered by that State’s registration rules, thanks to the so-called dormant Commerce Clause. International Textbook Co. v. Pigg , 217 U. S. 91, 107–112 (1910). On the other hand, the Court began invoking the Due Process Clause to restrict the circumstances in which an out-of-state corporation could be deemed present. So, for example, the Court ruled that even an Oklahoma corporation purchasing a large portion of its merchandise in New York was not “doing business” there. Rosenberg Bros. & Co. v. Curtis Brown Co. , 260 U. S. 516, 517–518 (1923). Perhaps advocates of this arrangement thought it promoted national economic growth. See Dodd, Jurisdiction in Personal Actions, 23 Ill.¶

L. Rev. 427, 444–445 (1929). But critics questioned its fidelity to the Constitution and traditional jurisdictional principles, noting that it often left injured parties with no practical forum for their claims too. Jackson, 5 N. Y. L. Rev., at 436–438.¶

In many ways, International Shoe sought to start over. The Court “cast . . . aside” the old concepts of territorial jurisdiction that its own earlier decisions had seemingly twisted in favor of out-of-state corporations. Burnham , 495 U. S., at 618. At the same time, the Court also cast doubt on the idea, once pursued by many state courts, that a company “consents” to suit when it is forced to incorporate or designate an agent for receipt of process in a jurisdiction other than its home State. Ibid . 3 In place of nearly everything that had come before, the Court sought to build a new test focused on ''traditional notions of fair play and substantial justice.'' International Shoe , 326 U. S., at 316 (quoting Milliken v. Meyer , 311 U. S. 457, 463 (1940)).¶

It was a heady promise. But it is unclear how far it has really taken us. Even today, this Court usually considers corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can be found. Burnham , 495 U. S., at 610–611. 4 Nearly 80¶

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3 It is unclear what remains of the old “consent” theory after International Shoe ’s criticism. Some courts read International Shoe and the cases that follow as effectively foreclosing it, while others insist it remains viable. Compare Lanham v. BNSF R. Co. , 305 Neb. 124, 130–136, 939 N. W. 2d 363, 368–371 (Neb. 2020), with Rodriguez v. Ford Motor Co. , 2019-NMCA-023, ¶12–¶14, 458 P. 3d 569, 575–576 (N. M. Ct. App. 2018).¶

4 Since Burnham , some courts have sought to revive the tag rule for artificial entities while others argue that doing so would be inconsistent¶

years removed from International Shoe , it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.¶

Maybe, too, International Shoe just doesn’t work quite as well as it once did. For a period, its specific jurisdiction test might have seemed a reasonable new substitute for assessing corporate “presence,” a way to identify those out-ofstate corporations that were simply pretending to be absent from jurisdictions where they were really transacting business. When a company “purposefully availed” itself of the benefits of another State’s market in the 1940s, it often involved sending in agents, advertising in local media, or developing a network of on-the-ground dealers, much as Ford did in these cases. E.g., International Shoe , 326 U. S., at 313–314, 320. But, today, even an individual retiree carving wooden decoys in Maine can “purposefully avail” himself of the chance to do business across the continent after drawing online orders to his e-Bay “store” thanks to Internet advertising with global reach. Ante , at 12–13, n. 4. A test once aimed at keeping corporations honest about their out-of-state operations now seemingly risks hauling individuals to jurisdictions where they have never set foot.¶

Perhaps this is the real reason why the majority introduces us to the hypothetical decoy salesman. Yes, he arguably availed himself of a new market. Yes, the plaintiff ’s injuries arguably arose from (or were caused by) the product he sold there. Yes, International Shoe ’s old causation test would seemingly allow for personal jurisdiction. But maybe the majority resists that conclusion because the old test no longer seems as reliable a proxy for determining corporate presence as it once did. Maybe that’s the intuition¶

------ lying behind the majority’s introduction of its new “affiliation” rule and its comparison of the Maine retiree’s “sporadic” and “isolated” sales in the plaintiff ’s State and Ford’s deep “relationships” and “connections” with Montana and Minnesota. Ante, at 13, n. 4.¶

with International Shoe . Compare First Am. Corp. v. Price Waterhouse LLP , 154 F. 3d 16, 20–21 (CA2 1998), with Martinez v. Aero Caribbean , 764 F. 3d 1062, 1067–1069 (CA9 2014).¶

If that is the logic at play here, I cannot help but wonder if we are destined to return where we began. Perhaps all of this Court’s efforts since International Shoe , including those of today’s majority, might be understood as seeking to recreate in new terms a jurisprudence about corporate jurisdiction that was developing before this Court’s muscular interventions in the early 20th century. Perhaps it was, is, and in the end always will be about trying to assess fairly a corporate defendant’s presence or consent. International Shoe may have sought to move past those questions. But maybe all we have done since is struggle for new words to express the old ideas. Perhaps, too, none of this should come as a surprise. New technologies and new schemes to evade the process server will always be with us. But if our concern is with '' traditional notions of fair play and substantial justice,'' International Shoe , 326 U. S., at 316 (emphasis added), not just our personal and idiosyncratic impressions of those things, perhaps we will always wind up asking variations of the same questions. 5¶

None of this is to cast doubt on the outcome of these cases.¶

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5 The majority worries that the thoughts expressed here threaten to “transfigure our specific jurisdiction standard as applied to corporations” and “return [us] to the mid-19th century.” Ante , at 7, n. 2; ante , at 9, n. 3. But it has become a tired trope to criticize any reference to the Constitution’s original meaning as (somehow) both radical and antiquated. Seeking to understand the Constitution’s original meaning is part of our job. What’s the majority’s real worry anyway—that corporations might lose special protections? The Constitution has always allowed suits against individuals on any issue in any State where they set foot. Supra, at 8–9. Yet the majority seems to recoil at even entertaining the possibility the Constitution might tolerate similar results for “nationwide corporation[s],” whose “business is everywhere.” Ante , at 2; ante , at 9, n. 3.¶

The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts. No one seriously questions that the company, seeking to do business, entered those jurisdictions through the front door. And I cannot see why, when faced with the process server, it should be allowed to escape out the back. Jackson, 5 N. Y. L. Rev., at 439. The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe ’s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution’s text and the lessons of history.¶