Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, Duke Univ. Working Paper (2013).
Who among us has not relished the extraordinary gift the Supreme Court gave to civil procedure teachers in the form of J. McIntyre Machinery, Ltd. v. Nicastro, allowing professors to punctuate the already absurd personal jurisdiction case line with the story of the unlucky Mr. Nicastro (he who lost four fingers to a metal shearing machine in New Jersey), with nary a place to sue? (And, no doubt reserving that one remaining finger for . . . personal jurisdiction jurisprudence.) Moreover, to ensure us a near-perfect teaching vehicle, the Court — as Professor Stephen E. Sachs notes in the wonderfully entertaining and thought-provoking How Congress Should Fix Personal Jurisdiction — “bogged down in an incoherent three-way split.”
Rather than make a futile attempt to make sense out of McIntyre, or to rationalize the mess away, Professor Sachs whole-heartedly forges into the personal jurisdiction thicket (which he labels a “dismal swamp”) with his own solution. Actually, an entire array of solutions. Sachs takes up McIntyre’s invitation to Congress to provide a federal forum for cases like Nicastro’s, and he sets forth a detailed federal statutory scheme for authorizing a federal forum based on existing venue rules. In particular, he is keen on securing federal forums to enable plaintiffs such as Nicastro to sue multinational corporations, such as McIntyre, that might otherwise evade responsibility for injuries to U.S. citizens because of existing state personal jurisdiction doctrine. Sachs notes that his proposal to create federal personal jurisdiction based on a venue model is not new, but suggests that other such attempts have been flawed in key respects (which he aims to rectify).
Sachs begins by arguing that those who would reform personal jurisdiction with an expedient doctrine have been looking in the wrong place (the Due Process Clause). Rather, the most plausible rules must be the product of legislative choice. As a threshold matter, Sachs boldly suggests that the solution to the personal jurisdiction mess begins with re-conceptualizing the problem as a question of not where a defendant is subject to suit, but who may hear it: who will determine the parties’ rights and liabilities and set the rules that govern the dispute.
Sachs’s paper endorses a system of nationwide federal personal jurisdiction that effectively erases state lines. Pursuant to his proposed statutory scheme, a district court could exert personal jurisdiction over a defendant so long as there were adequate contacts between the defendant and the United States as a whole. The location of the courthouse (which he claims is irrelevant for constitutional purposes) can be determined through familiar venue considerations of fairness to the parties and the witnesses. Applying these concepts, he offers examples of how his scheme would work and suggests how Nicastro could have pursued McIntyre under his rules.
After setting forth the justifications for his proposed new personal jurisdiction rules ― exploring why a federal forum makes sense ― Sachs acknowledges that creating new personal jurisdiction rules modeled on the venue statutes involves a more complicated problem. (“Of course,” he notes, “the answer isn’t that simple.”). He recognizes that federal litigation, “[i]f not a seamless web,” is “at least a giant tangle, in which pulling on one thread unravels other parts of the system.” And so, as soon as Professor Sachs has pulled at his initial venue thread, his entire federal jurisdictional skein begins to unravel (delightfully so). He tackles, among other problems and considerations, the implications of his proposal for Due Process (would it be constitutional?); the Erie doctrine (consistency between federal and state courts); and common sense (a refreshing and novel approach from an academic). Having canvassed large-scale issues and possible alternative solutions, Sachs returns to his own venue-based proposal, suggesting that getting federal courts out of the doctrinal mess of state court personal jurisdiction requires “thoroughgoing and careful revisions to the U.S. Code.”
It is at this point that Sachs’s paper becomes a veritable procedural tour de force. Beginning with his proposed nationwide personal jurisdiction concepts, Sachs suggests the need for changes to or creation of ― among many issues ― venue transfer rules, removal jurisdiction, the Van Dusen and Ferens rules on applicable law, appellate rules governing transfer denials, sanctions rules for unreasonable forum selection, and default rules for non-appearing defendants. For each of these inter-related procedural issues, Sachs proposes a statutory solution. This whirlwind tour through Title 28 of the U.S. Code and related doctrines is riveting in an “Oh-my-gosh” sort of way. And, toward the end, Sachs makes an obligatory nod to the Rules Enabling Act and potential rulemaking issues raised by his proposals.
Sachs’s article is entirely engaging because of the scope and sheer audacity of its recommendations. The paper is thought-provoking and provides a good vehicle for debate after studying McIntyre and the personal jurisdiction case line. Sachs’s writing style is delightful. He knows he has chewed off a very large mouthful, but he is humble and self-deprecating in the effort. No pomposity here. Sachs’s article is a work-in-progress in the finest tradition of rule reform, and it is entertaining to witness a young scholar become enmeshed in a knotty mess of inter-connected problems, once he has pulled a doctrinal thread and his holiday sweater unravels.