My new Cato post applauds the Supreme Court for its 8-1 decision yesterday in Bristol-Myers Squibb v. Superior Court of California correcting the Ninth Circuit on the permissible extent to which California can reach out to hear lawsuits arising from controversies and litigants in other states. A couple of weeks ago a companion 8-0 decision from the court addressed similar issues from Montana in BNSF v. Tyrrell.
…in both instances — with only Justice Sonia Sotomayor still balking — the Justices made clear that some states’ wish to act as nationwide regulators does not allow them to stretch the constitutional limits on their jurisdiction that far. …
…the contemporary Court is keenly aware of the danger that the tactical use of forum-shopping will eclipse the merits in many categories of high-stakes litigation, turning potentially losing cases into winners through the chance to file them in a more friendly court.
That insight might prove significant at a time when forum-shopping has come to play a prominent role in high-profile ideological litigation—with conservatives running to file suit in the Fifth Circuit, liberals in the Ninth.
(& welcome readers from SCOTUSBlog, which rounds up other commentary on the decision)
3 Comments
Justice Sotomayor dissented because of the overriding Constitutional principle: “It’s not fair.”
In fairness, it’s closer to the inverse of that. Sotomayor views the exposure of a national business to California jurisdiction as generally fair and (to simplify) sees many jurisdictional claims of this sort as passing muster so long as they are not unfair. One reason to think this is not a frivolous argument is that in some landmark past cases on personal jurisdiction the Court did lean pretty heavily on a vague “fairness” inquiry. I much prefer its current approach, but Sotomayor is not making up the idea of applying a fairness inquiry.
While I agree that Justice Sotomayor’s position in this area is not ungrounded in past practice, past practice has had the less than desirable effect of allowing just a few states to dictate policy and business practices to the whole of the Nation in many regards, particularly in pharmaceuticals and labeling. I appreciate the S.C.’s willingness to reconsider the policy effects of their past musings on theory, and to clarify their vague “fairness” inquiry to re-establish some limits of a particular Court’s (or Judge’s) reach.