A guest post by Lawrence Friedman
Among the potential nominees for the U.S. Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s passing was Barbara Lagoa, currently a judge on the U.S. Court of Appeals for the Eleventh Circuit. Like the eventual nominee, Seventh Circuit Judge Amy Coney Barrett, press reports labeled Lagoa a “conservative jurist,” supported by statements from progressive organizations like Alliance for Justice, which asserted that Lagoa’s decisions “raise concerns that she will side with the wealthy and powerful at the expense of everyday Americans.”
One problem with this statement is its premise—namely, that cases in which corporate interests prevail necessarily are the result of a judicial predisposition, rather than the application of controlling legal principles to the facts at hand. Though the results in some cases may reflect motivated reasoning, it remains that judges, both state and federal, in the main seek to honor their oaths to apply the law to the facts without fear or favor. There may be no better example of this commitment to the evenhanded administration of justice than Justice Ginsburg herself, as she was responsible for a series of civil procedure decisions over the past decade that effectively benefited corporate interests at the expense of individuals.
To be sure, it is unlikely you will find Ginsburg’s decisions on the principle of general jurisdiction in any compilation of her most important work as a judge. For example, a new collection curated by Corey Brett Schneider for his Penguin Liberty imprint, Decisions and Dissents of Justice Ruth Bader Ginsburg, features her majority opinions, dissents, and appellate briefs from cases involving gender equality and women’s rights, reproductive freedom, and voting and civil rights—with nary a mention of the pathmarking decisions on federal civil procedure she consistently wrote during her time on the high court.
That Ginsburg would play a prominent role in the development of the court’s civil procedure jurisprudence was no surprise to those who knew her. Following a federal clerkship after her graduation from Columbia Law School, Ginsburg joined the faculty at Rutgers University Law School and later moved to Columbia; at both schools, she taught and wrote about civil procedure, a subject that has been described, after equality, as her “other legal passion.” Readers of Ginsburg’s opinions on civil procedure could scarcely doubt this description, as she led the court in numerous cases addressing the diverse issues raised by the statutes and rules governing civil procedure in the federal courts. She turned her attention to general jurisdiction near the end of her time on the court with a trilogy of decisions designed to set straight lawyers and lower court judges about the concept’s boundaries.
“General jurisdiction”—or, as Justice Ginsburg put to it, “all-purpose jurisdiction”—stems from International Shoe Co. v. Washington, the seminal case in which the court established the standard to be applied when civil defendants challenge, on due process grounds, a court’s exercise of jurisdiction over them. Language in International Shoe suggests that, when a defendant had “continuous and systematic” contacts with the form state, it could be subject to suit there on any ground. This concept is known as general jurisdiction, in contrast to specific jurisdiction, which applies in the mine run of cases and requires that a plaintiff’s claims arise out of or relate to a defendant’s forum-state activities.
Over time, many lower state and federal courts liberally construed the language regarding “continuous and systematic” contacts—and not without reason: the court decided just two significant general jurisdiction case between International Shoe, in 1952, and the first case in the modern trilogy, Goodyear Dunlop Tires Operations, S.A. v. Brown, in 2011. In Goodyear, Ginsburg made clear that general jurisdiction should be used when a defendant is considered to be “at home” in the forum. In 2014, in Daimler AG v. Bauman, she elaborated, reasoning that a corporate defendant—for these cases inevitably involve corporate defendants—is “at home” only when the forum is either its state of incorporation or its principal place of business. While Ginsburg, and the majority for which she wrote, declined to say no other forum would qualify for general jurisdiction, Goodyear and Daimler signaled to lawyers and lower courts that they should regard the availability of general jurisdiction as exceptional. In the last decision in the trilogy, BNSF Railroad Co. v. Tyrrell, in 2017, Ginsburg explained that the court had not sought to limit Goodyear or Daimler either to its facts or to the particular causes of action the plaintiffs had raised. To invoke all-purpose jurisdiction, in other words, a plaintiff would be required in all instances to show that a defendant was essentially at home in the forum.
As a result of the modern general jurisdiction cases, in some instances plaintiffs may have to sue corporate defendants in the states where they are at home, however inconvenient that may be. Such a result might be considered unfair, given the typical disparity in financial means between individuals and corporations—but Justice Ginsburg recognized that our system of civil dispute resolution does not have as its sole goal a plaintiff’s convenience. As she observed in Daimler, “exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants” to reasonably foresee where their conduct might make them liable to suit. By cabining the breadth of circumstances in which general jurisdiction is available, Ginsburg sought to ensure that the virtues of consistency and predictability in the law are not sacrificed simply because the defendant happens to be a corporation.
When reviewing general jurisdiction with my first-year civil procedure students, I make a point to use Ginsburg’s trilogy to show them that the political labels so often attached to the justices – conservative or liberal, Republican or Democratic – fail in many instances to provide a reliable guide to understanding a decision’s outcome. The trilogy confounds the popular narrative of Justice Ginsburg’s jurisprudence—and serves to remind us that, in the end, it is legal reasoning, and not political labeling, that decides actual cases and controversies.
The Interdependent Third Branch 