Waiting for the other International Shoe to Drop
The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate). Justice Alito concurred in the judgment. He suggested that the majority opinion put a new “gloss” on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.
Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).
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).
In a footnote, Justice Gorsuch favorably cites the work of co-blogger Steve Sachs, who writes that Pennoyer was right. And in the same footnote, Gorsuch cites Justice Robert Jackson. Pretty good company to be in.
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, Con
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