It has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington, yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Roberts Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court, a case decided in 2021 that addressed an issue related to specific jurisdiction. What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation’s registration to do business constitutes consent to personal jurisdiction in that state. This consent issue is particularly divisive in states like Georgia and Pennsylvania—where jurisdiction via registration is expressly provided for by statute. Indeed, over the past two years the Supreme Court of Georgia upheld the exercise of consent jurisdiction in Cooper Tire & Rubber Co. v. McCall, while the Supreme Court of Pennsylvania struck down its statute as unconstitutional in Mallory v. Norfolk Southern Railway Company. The conflicting decisions in McCall and Mallory have now teed up the consent-by-registration question for the U.S. Supreme Court.
Under International Shoe’s bifurcated test, personal jurisdiction over nonresident defendants comports with due process when the defendants have sufficient minimum contacts with the state and the exercise of jurisdiction is fair or reasonable. Until recently, the Roberts Court’s personal jurisdiction jurisprudence relegated the fairness prong of this test to, at most, an afterthought. However, Ford bucks that trend, providing hope that courts will once again turn to fairness considerations when making tough calls on jurisdiction. Using Ford as a launching pad, this Article argues that fairness—specifically, the fairness factors first articulated in World-Wide Volkswagen Corp. v. Woodson—should be part of every jurisdictional calculus, whether the plaintiff is relying on specific jurisdiction, general jurisdiction, or one of the traditional grounds for personal jurisdictional such as consent by registration. Applying a uniform methodology to the flexible due process standard will improve the consistency and predictability of personal jurisdiction determinations over time, while still allowing courts to decide these questions on a case-by-case basis.
Megan M. La Belle, Personal Jurisdiction and the Fairness Factor(s), 72 Emory L. J. 781 (2023).