Ford Motor Co.: The Murky Doctrine of Personal Jurisdiction

Linda Sandstrom Simard Professor of Law, Suffolk University Law School and Charles W. “Rocky” Rhodes Professor of Law and Charles Weigel II Research Professor of State and Federal Constitutional Law, South Texas College of Law Houston and Cassandra Burke Robertson Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University

Linda Sandstrom Simard[*]

Charles W. “Rocky” Rhodes[†]

Cassandra Burke Robertson[‡]

In Ford Motor Co. v. Montana Eighth Judicial District Court,[4] the U.S. Supreme Court upheld the assertion of personal jurisdiction over Ford by state courts seeking to adjudicate claims brought by forum citizens concerning Ford vehicles purchased secondhand in those states that were involved in accidents on forum roads. In many respects, this holding is unremarkable. Indeed, someone who lacks familiarity with the intricacies of personal jurisdiction doctrine might say the decision is common sense—as the Supreme Court acknowledged, each suit was brought in “the most natural State.”[5] Nevertheless, Ford argued that the assertion of jurisdiction in these cases violated its constitutional right to due process of law. Ford maintained that the long-standing bellwether for specific personal jurisdiction, the minimum contacts test, was not satisfied because Ford’s admittedly substantial forum sales and marketing activities were not the proximate cause of the accidents at issue, since the plaintiffs’ vehicles were not designed, manufactured, or originally sold within the forum states. In rejecting Ford’s argument, the Court did not adopt a new interpretation of due process or articulate a new doctrinal test. It instead repeated its typical formulation that specific jurisdiction requires that “[t]he plaintiff’s claims . . . ‘must arise out of or relate to the defendant’s contacts’ with the forum.”[6] Because “Ford had systematically served” the markets in the forum states for the same models that plaintiffs alleged malfunctioned and injured them, the Court held that the necessary specific jurisdiction “relationship among the defendant, the forum, and the litigation” existed.[7]

Despite its seeming obviousness, the decision is significant on several fronts. From a doctrinal perspective, the Supreme Court, for the first time, explicitly approved the exercise of jurisdiction where the plaintiff’s claim “related to,” as opposed to “arose from,” the defendant’s forum conduct. While some prior decisions had hinted in dicta that a strict causal requirement was not necessary for specific jurisdiction,[8] the Court had previously declined to squarely address this issue, despite two earlier opportunities.[9] Yet, although Ford held “some relationships will support personal jurisdiction without a causal showing,” the Court cautioned that “does not mean anything goes,” as “the phrase ‘relate to’ incorporates real limits, as it must to adequately protect defendants foreign to a forum.”[10] The Court’s opinion, however, was reticent in defining the characteristics of these “some relationships” supporting jurisdiction and the “real limits” imposed, thereby leaving substantial unanswered questions on the decision’s scope that will be the subject of litigation and scholarly debate for years to come.

This debate’s resolution will be critical for access to justice. Prior Roberts Court jurisdictional decisions had all found in favor of the defendants, either tightening prior jurisdictional requirements or discarding accepted interpretations by lower courts. These defendant-friendly holdings had jettisoned decades of lower-court jurisdictional decisions that “continuous and systematic” forum business contacts of a substantial nature sufficed for general jurisdiction,[11] tightened the requirement for purposeful conduct by the defendant itself rather than reliance on the actions of the plaintiff or an intermediary,[12] limited the amenability of foreign manufacturers employing independent distributors to serve the U.S. market,[13] and prohibited nonresident consumers from joining a pharmaceutical-liability action with resident plaintiffs when the drug had not been developed or manufactured in the forum and the nonresidents did not purchase, ingest, or suffer injuries from the drug in the forum state.[14] While Ford halts any additional upheaval in jurisdictional doctrine for now, it is not clear whether the decision merely represents a synthesis of prior decisional law, or if it signals robust forthcoming changes favoring court access.

Part of the difficulty in discerning future jurisdictional roads stems from the Court’s typical divides on constitutional interpretive methodologies. While the eight justices hearing the case (Justice Amy Coney Barrett did not participate) agreed unanimously that Ford was amenable to jurisdiction in the forum states, the justices split on reasoning, rationales, and constitutional approaches. Justice Elena Kagan cobbled together a majority opinion, joined by Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Brett Kavanaugh, which predominantly relied on the Court’s past precedents as defining the rationales underlying and the bounds imposed on a state court’s power to exercise jurisdiction over a nonresident defendant by the Fourteenth Amendment’s Due Process Clause. But this fragile majority—comprised of justices that had been on opposite sides in previous jurisdictional decisions[15]—likely confronted challenges in proffering meaningful guidance for future cases, prompting the minimalist holding that leaves much unanswered. Justice Samuel Alito concurred separately, focusing more on his interpretation of the policies underlying prior decisions and quibbling with the majority’s gloss on language contained in prior opinions. Justice Neil Gorsuch, joined by Justice Clarence Thomas, also concurred separately, lamenting the disconnect between the Court’s modern jurisdictional decisions and the original meaning of the Due Process Clause as a restraint on judicial power but concluding that Ford was amenable to jurisdiction in any event.

This Essay analyzes the various Ford opinions and their doctrinal significance in Part I before highlighting examples of the significant unresolved issues that will arise in the future in Part II. This uncertainty stems both from the minimal guidance provided by the Court for future cases and its potential carve-out of cases involving the internet from its overarching jurisdictional doctrine.

I. The Ford Opinions

The Supreme Court historically has struggled in resolving jurisdictional questions arising in products-liability cases. The Court splintered hopelessly in 1987 on the quantum of in-state conduct necessary to support jurisdiction for allegedly defective products placed in the stream of commerce.[16] And when the Roberts Court returned to those unresolved issues in 2011, it once again failed to produce a majority opinion.[17] Achieving a majority opinion in Ford is thus progress. But the cost of this achievement was an opinion signed onto by five justices with divergent perspectives on the scope of adjudicative power that left unresolved many underlying questions and leaves judges and litigants to guess how the Court might come out in the disputes currently wending through the courts. These complexities are exacerbated by the separate writings of Justices Alito and Gorsuch, which evidence additional fault lines among the justices on the due process limitations on personal jurisdiction.

A. The Ford Majority

In delivering the opinion of the Court, Justice Kagan relied on precedent that has defined the constitutional limits of personal jurisdiction for the last seventy-five years. The opinion highlights the “canonical decision” in International Shoe Co. v. Washington[18] and articulates the constitutional framework for personal jurisdiction: “[A] tribunal’s authority depends on the defendant’s having such ‘contacts’ with the forum State that ‘the maintenance of the suit’ is ‘reasonable, in the context of our federal system of government’ and ‘does not offend traditional notions of fair play and substantial justice.’”[19] Within this constitutional framework, specific personal jurisdiction allows a state to exercise jurisdiction when a plaintiff’s claims arise out of or relate to the defendant’s purposeful contacts with the forum, or, stated differently, when an affiliation exists between the forum and the underlying controversy, which principally involves in-state activities or occurrences subject to state regulation. According to the Court, “[t]hese rules derive from and reflect two sets of values—treating defendants fairly and protecting ‘interstate federalism.’”[20] While International Shoe rooted specific jurisdiction in the concept of reciprocity, later cases supplemented this concept with the idea of fair notice—a defendant should not be subject to jurisdiction without fair warning that particular conduct in a forum state will subject it to a state’s judicial power. These values—treating defendants fairly and protecting interstate federalism—are oftentimes intertwined, such that when a state’s exercise of jurisdiction is reasonable, it will likely also be predictable.

Ford nonetheless argued here that, since it did not design, manufacture, or sell the vehicles at issue in either of the forum states, the exercise of jurisdiction was unconstitutional because the plaintiffs’ claims did not causally arise from its forum conduct. The Court unequivocally rejected Ford’s argument. A “causation-only approach finds no support in this Court’s requirement of a ‘connection’ between a plaintiff’s suit and a defendant’s activities,” as the typical formulation merely “demands that the suit ‘arise out of or relate to the defendant’s contacts with the forum.’”[21] This “relate to” alternative “contemplates that some relationships will support jurisdiction without a causal showing.”[22] A state may therefore have jurisdiction outside the causal chain “because of another ‘activity [or] occurrence’ involving the defendant” taking place within the forum state.[23]

This was satisfied in these cases when Ford was serving the markets for its vehicle models in the forum states, and these models allegedly malfunctioned within these states. The Court emphasized dicta that has “appeared and reappeared” in Supreme Court cases many times over the last four decades[24]:

if the sale of a product . . . is not simply an isolated occurrence, but arises from the efforts of a manufacturer or distributor to serve, directly or indirectly, the market for its product in [several or all] other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.[25]

Here, Ford’s substantial forum business—a “veritable truckload of contacts” —indicated that the exercise of jurisdiction in these cases was fair and reasonable.[26] Notwithstanding the absence of strict causal links between the plaintiffs’ claims and Ford’s forum contacts, the Court found a “strong ‘relationship among the defendant, the forum and the litigation.’” In each case, the resident-plaintiff alleged that a defective Ford vehicle model regularly sold in the forum state caused an accident in the forum. Ford sought to engage in extensive business in the forum states, and as such enjoyed the benefits of government protection if and when needed. In exchange for these benefits, Ford’s reciprocal obligation was to ensure that the models of its vehicles marketed in the forum were safe for forum citizens to use there. In light of this arrangement, it was hardly unreasonable or unpredictable to allow the forum state courts to enforce their state’s safety regulations when those vehicles were allegedly unsafe. Indeed, the assertion of jurisdiction was so reasonable, it was also predictable, as an automaker regularly marketing its vehicles within the forum has clear notice of its amenability to suit. Ford had the ability to structure its conduct to lessen the costs of litigation in the forum state, but it chose to continue its business and accept the risk of litigation.

Yet precisely because the case was, in the Court’s own words, “a paradigm example” of specific jurisdiction’s operation, the Court’s guidance for future cases was wanting. The Court declined to address even slight modifications to the presented facts, such as if Ford had marketed the particular models at issue only in areas or regions outside the forum states. The Court specified that its holding did not support “that any person using any means to sell any good in a State is subject to jurisdiction there if the product malfunctions after arrival,” as its decisions “have long treated isolated or sporadic transactions differently,” and internet transactions may raise unique questions.[27] But the Court never explained the doctrinal sources for any such differential treatment, so it is not clear whether any such divergence arises under the specific jurisdiction prongs for purposeful availment, adequate relationship, fairness check, or perhaps some combination thereof. The only other clues in the opinion are that the relationship requirement incorporates the typical jurisdictional values of “treating defendants fairly and protecting ‘interstate federalism,’”[28] and that, unlike in some of its prior decisions, the Court reasoned that the forum selected by each of the plaintiffs in these cases was “the most natural State” rather than a product of forum shopping.[29] But these hints leave much unsettled regarding the “real limits” the Court insisted the relationship requirement imposes, as both concurring opinions protested.

B. The Separate Concurrences and the Court’s Fault Lines

The two separate writings in Ford provide insights into some of the underlying fault lines among the justices and therefore may assist in predicting the doctrine’s future directions.

Justice Alito penned a short concurrence, not joined by any other justice, while Justice Gorsuch penned a longer one joined by Justice Thomas. Both concurrences quoted Reiter v. Sonotone Corp., within the first pages of their analysis, criticizing the majority opinion for parsing the language of earlier personal jurisdiction case law “as though we were dealing with language of a statute.”[30] Personal jurisdiction, after all, is at its heart a constitutional doctrine that has been developed through more than a century of case-law development. By emphasizing the quote from Reiter, the concurring justices suggest that they are unwilling to be boxed in by the language used in earlier cases and have some discomfort with the majority’s articulation of personal jurisdiction doctrine. At that point, however, the two concurring opinions diverge, with Justice Alito’s opinion underscoring the policy interests supporting personal jurisdiction doctrine, and Justice Gorsuch’s opinion raising questions concerning the original underpinning of the doctrine.

1. Justice Alito’s “Rough Causal Connection”

In Justice Alito’s view, the result in Ford flows naturally from both International Shoe and World-Wide Volkswagen Corp. v. Woodson.[31] He notes that Ford has substantial contacts in both Minnesota and Montana and that both states have a strong interest in the lawsuits, pointing out that “[t]heir residents, while riding in vehicles purchased within their borders, were killed or injured in accidents on their roads.”[32] He rhetorically continues: “Can anyone seriously argue that requiring Ford to litigate these cases in Minnesota and Montana would be fundamentally unfair?” He answers that “Ford makes that argument” and “would send the plaintiffs packing to the jurisdictions where the vehicles in question were assembled (Kentucky and Canada), designed (Michigan), or first sold (Washington and North Dakota) or where Ford is incorporated (Delaware) or has its principal place of business (Michigan).”[33]

Yet Justice Alito’s summation of Ford’s argument here is not quite accurate—Ford conceded that the “fairness factors” were satisfied in the case while arguing that the Court’s own language in earlier cases limited jurisdiction to forums where the defendant’s in-state conduct gave rise to the particular claims at issue. In Justice Alito’s view, however, the fairness analysis cannot wholly be separated from the rest of the jurisdictional analysis. He concludes that “[t]he common-sense relationship between Ford's activities and these suits, in other words, is causal in a broad sense of the concept, and personal jurisdiction can rest on this type of link without strict proof of the type Ford would require.”[34]

In his concluding paragraph, Justice Alito sets out his concern for future cases. That is, although there was a “common-sense” basis for jurisdiction over Ford, he is concerned that requiring a looser standard of connection between the forum state and the defendant could give rise to a “potentially boundless reach” of state courts. Requiring only a loose “related to” standard for jurisdiction would give too much power to trial courts, in his view, because “everything is related to everything else.” He sees a need for “real limits” on jurisdiction over out-of-state defendants and concludes that requiring causation, even a “sort of rough causal connection,” is the best way to ensure such limits.[35]

2. Justice Gorsuch’s Search for the Constitution’s Original Meaning

Justice Gorsuch’s concurring opinion, joined by Justice Thomas, was nearly three times the length of Justice Alito’s. Where Justice Alito offered a narrow path, Justice Gorsuch roamed broadly, openly “struggl[ing] . . . with making sense of our personal jurisdiction jurisprudence.”[36] Justice Gorsuch questioned the entire basis of modern personal jurisdiction doctrine, but ultimately did not set out a clear path to reform, as he ended “with more questions than [he] had at the start.”[37]

Justice Gorsuch traces his dissatisfaction with the Court’s personal jurisdiction doctrine all the way back to International Shoe,[38] where the Court first moved away from a territorial conception of personal jurisdiction (“depend[ing] on the defendant’s presence in, or consent to, the sovereign’s jurisdiction”)[39] and into a more nuanced analysis focused on “traditional notions of fair play and substantial justice.”[40] In a broad sweep, Justice Gorsuch questions whether “all of the Court’s efforts since International Shoe” are at their heart really just restatements of the old “consent” and “presence” evaluations. It is an interesting question, but ultimately one that he does not delve into in any detail, as he handwaves aside the nearly eighty years of doctrinal development—including numerous Roberts Court cases—that ultimately influenced modern doctrine more than International Shoe itself.[41]

But what Justice Gorsuch’s opinion lacks in precision, it makes up for in its willingness to directly confront the difficult questions and to search for firmer constitutional grounding. Justice Gorsuch raises hypothetical questions not answered by the majority opinion. For example, could the plaintiffs in Ford have chosen to sue in the state of first sale (here, North Dakota or Washington)? Those states are undoubtedly part of the causal chain of events, and, as Justice Gorsuch points out, have a “strong interest in ensuring they don’t become marketplaces for unreasonably dangerous products.”[42] On the other hand, the Roberts Court has repeatedly expressed discomfort with plaintiffs’ forum shopping. And of course, as long as multiple potential forums are available, plaintiffs will always seek the most favorable. As a result, the broader the courts’ power to exercise personal jurisdiction, the more possibilities there will be for forum shopping. Historically, personal jurisdiction protected against only the oppressive or vexatious forum—other doctrines, like venue in the federal system, did more to steer litigation to the most convenient forum. As Justice Gorsuch notes, the Ford opinion leaves open questions about just how much “connection” is needed to a potential forum and whether this is a relative analysis when multiple states have a potentially sufficient connection to the lawsuit.

Justice Gorsuch also points out that traditional doctrine struggles to handle modern commerce. He explains that a defendant’s choice to avail itself of a state’s marketplace in the middle of the last century required a great deal of effort, whereas modern technology today makes it easy for sellers to exploit distant markets.[43] Under current doctrine, even a sporadic contact could give rise to jurisdiction if it directly causes harm in the forum. But Justice Gorsuch notes the Court’s discomfort with the idea, discussed at oral argument and mentioned in a footnote to the majority opinion, that a small-time crafter (here, “an individual retiree carving wooden duck decoys in Maine”) could be haled into a distant forum when a product sold into a distant state causes harm.

Of course, perspective matters here—perhaps the justices’ discomfort would evaporate if the perspective was flipped, and the question was whether a family could sue in their home forum when their child was poisoned by the lead paint on a wooden toy they bought online and had mailed to their house. Should they have to travel to Maine to file suit? Or, perhaps even more commonly in today’s world, should they have to sue in China? In any case, Justice Gorsuch is right that under International Shoe’s approach, the family would be allowed to sue in their home state, given that “the plaintiff’s injuries arguably arose from (or were caused by) the product he sold there,”[44] at least as long as the seller purposefully mailed the product into the buyer’s state. The majority’s unwillingness to commit to an answer about whether that is still the case leaves open significant uncertainty about just how far the Court has gone in re-shaping jurisdictional doctrine.

Finally, Justice Gorsuch criticizes the majority opinion for its reluctance to engage with “the Constitution’s original meaning,” suggesting that the Court’s failure to do so stems from a fear that “corporations might lose special protections.”[45] Justice Gorsuch has a valid point. Current personal jurisdiction doctrine, especially as interpreted by the Roberts Court, has restricted courts’ ability to exercise jurisdiction over out-of-state corporate defendants. A decision in favor of Ford would have gone even further down the road of “limit[ing] corporate accountability and undercut[ting] the well-accepted traditional understandings of the adjudicative authority of sovereign states,” but even though the Court did not go that far, it had already traveled a good way down that road.[46] Although Justice Gorsuch joined some of those earlier opinions, it appears that he is now reconsidering the Court’s constitutional authority to limit state courts’ authority over out-of-state corporate defendants doing business in the forum state. He acknowledges that he is left with more questions than answers after the Ford case, thus giving litigants plenty of room to craft arguments in future cases.

C. The Post-Ford Doctrinal Landscape

Ford’s impact on jurisdictional doctrine going forward is uncertain. The case is undoubtedly significant as the first time the Supreme Court has expressly upheld the exercise of specific personal jurisdiction where a plaintiff’s claim is related to, but does not arise from, the defendant’s forum conduct.[47] Ford’s position was that its jurisdictional exposure only extended to claims that were causally related to its forum conduct, as a causal test both “furthers fairness” and is “linked to the State’s interest in regulating the defendant’s actions,”[48] such that no balancing of the state’s interest and the defendant’s interest was required under the fairness factors.[49] In this manner, Ford sought to bypass the state’s and the plaintiff’s strong interests by arguing that causation is a sine qua non for jurisdiction and, without it, any additional factors are irrelevant. In rejecting Ford’s argument, Justice Kagan employed a holistic analysis that included the state’s interest and the plaintiff’s interest into the relatedness question, thus defining the scope of specific jurisdiction more broadly than a strict causal standard would have allowed and obviating the doctrinal bottleneck that Ford had sought to exploit. This has expanded jurisdiction in this context, albeit in a manner comporting with earlier dicta, but it is uncertain what it means for jurisdictional doctrine more broadly.

One perspective is that Ford did not change much else in the familiar three-part jurisdictional test for specific jurisdiction. Specific jurisdiction still requires three separate elements: (1) the defendant’s purposeful forum activities, (2) an affiliation or relationship between the defendant’s forum activities and the lawsuit, and (3) the fairness or reasonableness check to ensure that the jurisdictional assertion does not violate traditional notions of fair play and substantial justice. Under this view, all Ford did was to confirm what has long been hinted at—that a nonresident defendant’s substantial efforts to serve the market in the forum state for its products are sufficiently connected to a lawsuit in the forum based on an in-state injury suffered from one of its allegedly defective products. To the majority, this was because “relate to” was a separate method to establish the required affiliation, while Justice Alito believed a rough causal connection existed between the defendant’s activities and the plaintiff’s claims. Yet, other than the Court’s explicit clarification of the scope of the affiliation requirement in this context, specific jurisdiction’s typical three-prong analysis might be thought to proceed largely as before, which appears at this very early juncture to be the prevailing position of the lower courts.[50]

But there are possible readings of Ford that might signal a new jurisdictional direction, with a greater emphasis on the “fairness” of the jurisdictional assertion to the defendant in light of the state’s comparative interest in adjudicating the dispute. The majority opinion tells us that the relationship requirement incorporates the values of “treating defendants fairly and protecting ‘interstate federalism,’”[51] and the majority, when distinguishing its prior decisions, considered that the forum selected by each of the plaintiffs in these cases was “the most natural State” rather than a product of forum shopping, which arguably was a key factor in evaluating whether the relationship requirement was satisfied.[52] The Court could readily build on this analysis and retreat from the formalism that has infused its recent jurisdictional decisions. The Roberts Court’s past decisions have strictly categorized jurisdictional power into either general or specific jurisdiction, with inflexible prerequisites that do not account for the overall reasonableness of the plaintiff’s forum choice in light of the defendant’s burdens.[53] Such a refashioning might perhaps include eliminating a separate consideration of the fairness factors as a check only after the plaintiff establishes the formal jurisdictional prerequisites, instead incorporating the state’s interest (which oftentimes subsumes the plaintiff’s interest, state substantive social policies, and litigation efficiency) into the analysis of purposeful availment and the required connection or affiliation for jurisdiction.

Or maybe not. Ford repeatedly referred to specific jurisdiction as requiring some “affiliation” between the forum and the lawsuit’s underlying controversy, which principally is an in-state activity or occurrence subject to the state’s regulation.[54] This might be a formalistic prerequisite that must be satisfied before turning to the underlying jurisdictional policies. Such a perspective interprets Ford as turning to these policies only after finding the appropriate affiliation when a Ford vehicle malfunctioned in the forum state. But such policies would not assist a forum resident attempting to sue at home when there was no such affiliation with the state, such as in a case where the resident did not purchase the vehicle new in the state, the injury did not occur in the state, and the vehicle was not designed or manufactured in the state.[55] Such a reading would be informed by the Roberts Court’s prior formalism in jurisdictional doctrine—as well as in constitutional law more generally. Although three members of the Ford majority, including the opinion’s author, have often decried this formalism, in both jurisdictional and other areas of constitutional doctrine, Chief Justice Roberts and Justice Kavanaugh have embraced it. Consequently, unless Justice Gorsuch finds that a balancing approach was part of the original meaning of the due process limitations on personal jurisdiction (a highly doubtful proposition in light of the formalism of that era and Justice Gorsuch’s methodological preferences), five votes may not be there for such a recalibration. Also, such a move would at least undercut some of the Roberts Court’s jurisdictional precedents, which may not even accord with Justice Kagan’s uber-adherence to principles of stare decisis in recent constitutional cases.

As a result, the future roads of jurisdictional doctrine after Ford are simply unclear; indeed, the three of us all have slightly different takes. Although we all would prefer a less formalistic and more policy-based approach, we differ on the extent to which Ford marks a step in this direction outside its particular factual context.

But one thing is clear—this doctrinal and normative uncertainty has deleterious consequences in achieving the predictability that is so vital to a defendant’s “fair warning” regarding its amenability to suit in a forum. We now turn to the difficulties that will plague the lower courts in ascertaining the permissible scope of personal jurisdiction “on the ground” in future cases.

II. The Uncertain Future Jurisdictional Roads

In the aftermath of Ford, lower courts will be challenged to resolve the many ambiguities left unanswered. These ambiguities stem both from the minimal guidance provided by the Court for future cases, as well as the Court hinting at the possibility of a carve-out for cases involving the internet. We first explore a relatively simple hypothetical case that illustrates the numerous questions that will likely be the subject of future litigation. We then proceed to address the Court’s reluctance to announce that its typical jurisdictional rules apply to internet activities.

A. A Simple Hypothetical—and Many Unanswered Questions

To illustrate some of the questions that are likely to be the subject of future litigation, imagine a small, closely held business that sells diamond engagement rings. The business is incorporated in New York, has its principal place of business in Manhattan and has a second retail location in Paramus, New Jersey. A New Jersey consumer purchases a diamond ring from the jeweler in Manhattan and returns to his home in New Jersey where he later learns that the diamond is a fake. If the consumer files suit against the corporation in New Jersey, Ford will provide both sides fertile ground to argue both for and against the exercise of specific jurisdiction.

The plaintiff will argue that the exercise of jurisdiction is constitutional because the plaintiff’s claim relates to the defendant’s ongoing and continuous conduct in New Jersey. The defendant purposefully avails itself of the privilege of conducting business in New Jersey and, in exchange for enjoying the benefits and protection of New Jersey law, the defendant submits to the state’s power to “hold the company to account for related misconduct.”[56] Relying upon Ford, the plaintiff will assert that this litigation is related to the defendant’s New Jersey jewelry business because the defendant sells diamond engagement rings in New Jersey that are similar in all material respects to the ring that is the subject of the litigation. While diamond rings are not categorized according to a standard model or design, the defendant should not be shielded from jurisdiction merely because each product has some unique qualities. Most products, even those that share a common design, incorporate unique features. For example, Ford Explorers share many defining characteristics, but they vary in many respects as well, i.e., color, engine size, and add-on packages. Similarly, diamond engagement rings share defining characteristics even though every diamond has unique qualities. The plaintiff will contend that the issues in this litigation do not concern the features that distinguish one diamond from another diamond; rather, the suit concerns the difference between a real diamond and a fake diamond. The plaintiff will argue this suit is not an example of forum shopping, as he filed suit in his home forum where he suffered injury upon discovering the alleged fraud. While the defendant’s forum contacts may not equal the “veritable truckload of contacts” in Ford, they are far more than “isolated or sporadic contacts” that the Court has suggested would be insufficient to ground specific jurisdiction.[57]

The exercise of jurisdiction, the plaintiff here would continue, is fair and reasonable notwithstanding the fact that the diamond ring at issue in this litigation is not identical to the many diamond rings sold by the defendant in New Jersey. The State of New Jersey has a strong interest in adjudicating this dispute to protect its citizens from fraud and to provide a convenient forum for its citizens to seek redress. The defendant had fair warning that it could be haled into court in New Jersey to defend an action alleging fraud in the sale of a diamond engagement ring.

The defendant, on the other hand, will argue that the exercise of jurisdiction is unconstitutional because the plaintiff’s claim does not arise from or relate to any conduct that occurred in New Jersey. Although the defendant purposefully avails itself of the privilege of conducting activities in New Jersey and enjoys the benefits and protection of New Jersey laws, the allegation of fraud in this case arises from a sale that occurred in New York, not New Jersey. This claim, the defendant will maintain, does not have the necessary “affiliation” with New Jersey, as the relevant activities or occurrences alleged in the lawsuit all occurred in New York—the ring was not purchased, assembled, or delivered in the forum state.

The defendant will also seek to distinguish Ford, where the Court emphasized that the same model vehicles that were the subject of the lawsuits were sold by Ford in both forum states and suggested that this gave the defendant fair warning that it could be sued in the forum if these products malfunctioned there. Although the Court declined to address the jurisdictional consequences if Ford had not sold the same model vehicle in the forum states, the Court highlighted such a case was distinguishable.[58] Here, unlike automobiles of the same model that are virtually indistinguishable from one another, diamonds are inherently unique. No two diamond rings are the same because each client chooses their preferred setting for their unique diamond, creating a custom product that is unlike any other in the world. The defendant does not sell the same product in New Jersey and therefore there is no relationship among the defendant, the forum, and the litigation that supports the exercise of jurisdiction.

Moreover, the defendant will argue that, unlike in Ford, the product did not malfunction in the forum state or subject any other forum citizens to potential harm. Rather, the alleged injury occurred in New York at the place of sale. The defendant may argue that Walden v. Fiore held that the mere fact the plaintiff resides in the forum is insufficient to justify the exercise of jurisdiction where the plaintiff’s claim does not arise out of or relate to the defendant’s purposeful forum conduct,[59] and that Bristol-Myers Squibb Co. v. Superior Court requires that the lawsuit concerns some activity or occurrence subject to the state’s regulation.[60] The defendant would urge that it would be unreasonable to anticipate being haled into court in New Jersey to defend an action based on a product that it sold in New York. Allowing jurisdiction in this case would be unfair because the defendant has far fewer contacts with New Jersey than the “veritable truckload of contacts” that Ford had in Montana and Minnesota,[61] and any reciprocal obligations that arise from its sale of jewelry in New Jersey are unrelated to the sale of this particular ring in New York. The state’s interest in adjudicating this dispute, the defendant would continue, is de minimis because there is no affiliation between the litigation and the forum state that is based on an activity or occurrence in New Jersey subject to the state’s regulation.[62] Finally, the defendant would maintain that principles of interstate federalism do not support jurisdiction in this case. Even if New Jersey has an interest in providing its citizen with a convenient forum for redressing alleged fraud inflicted by out-of-state actors, in this case the state’s interest is overshadowed by the comparatively stronger interests of the State of New York, where the incident occurred.

How the lower courts will resolve these many ambiguities is yet to be determined. In the meantime, many cases will challenge the contours of specific personal jurisdiction when a plaintiff’s claims allegedly relate to a defendant’s purposeful forum conduct. These cases are likely to involve all types of disputes, not just disputes involving defective products, and will require lower courts to extrapolate the reasoning of Ford to very different factual and legal contexts. But a further complexity for the lower courts is that many of these cases will also involve the internet—and the Court once again has left open the possibility that different jurisdictional rules apply in the virtual world.

B. The Court Again Dodges Internet Jurisdiction

The Supreme Court dodged questions of how internet-based contacts fit into the justices’ doctrinal model of personal jurisdiction, explaining only in a footnote that “we do not here consider internet transactions, which may raise doctrinal questions of their own.”[63]

Unlike the Supreme Court, litigants and lower courts will not be able to avoid these issues. After all, internet communications and commerce permeate modern society and are therefore enmeshed in the disputes that arise from everyday business and life. Defamation cases arise from social media communications and online forums.[64] Intellectual-property infringement actions and trade-secret cases may involve online sales, contracts, and communications.[65] Disputes over data management and privacy will arise almost exclusively online, perhaps involving databases maintained in the cloud.[66] Without guidance from the Supreme Court, state and federal courts have struggled to apply jurisdictional doctrine to cases involving internet contacts.[67]

It is possible that the Court prefers to leave questions of internet jurisdiction to percolate in the lower courts, benefitting from factual development and argument before the Court addresses issues arising from online communication and commerce.[68] But while this percolation approach works well to carve out discrete questions of law that can be separately litigated, it is more problematic when the Court attempts to carve out a major factual context that necessarily flows into the overarching doctrine.[69]

Even in the short time since the Ford decision was released, courts have already had to apply its holding to internet-based conduct. In one case also involving a large car manufacturer (here, General Motors), plaintiffs alleged that the car company’s website “captures website visitors’ mouse clicks, keystrokes, names, zip codes, phone numbers, email addresses, IP addresses, and locations at the time of the visit.”[70] They sued for “violations of the California Invasion of Privacy Act, for invasion of privacy under the California Constitution, for violation of the Federal Wiretap Act.”[71] The plaintiffs argued that Ford supported personal jurisdiction in the case—after all, there was no doubt that General Motors “extensively marketed its products and services to Californians,” that the plaintiffs suffered the alleged harm in California, that California had a strong regulatory interest in the data privacy of its citizens, and that it would not be unduly burdensome for a company as large as General Motors to defend the case in California.

In spite of these connections to California, the federal district court denied personal jurisdiction over General Motors. It relied on the fact that the Supreme Court had excluded internet contacts from its test, and it distinguished Ford’s physical injuries from the plaintiffs’ more intangible harms.[72] The court held that the “relevant events and alleged injury all occurred online” and thus could not be tied to the defendant’s in-state contacts; as a result, “GM's operation of broadly accessible websites does not constitute the type of minimum contacts with the forum needed for specific personal jurisdiction.”[73] Because the case was filed in federal court, the court was able to transfer the case to the District of Delaware (where General Motors would be subject to general personal jurisdiction) rather than dismissing the case. Nonetheless, the case resulted in an anomaly: Alleged violations of California’s privacy laws could not be addressed by California courts. This result suggests that a state’s legislative jurisdiction could frequently exceed its judicial jurisdiction, at least where internet activity is concerned.

The Supreme Court’s decision to carve out internet contacts left room for the General Motors court to apply a much more restrictive personal jurisdiction standard that weighs state regulatory interests differently when addressing online activity. It is certainly reasonable for the Court to want to avoid speculating on cases or issues not currently before it. But by setting out a doctrinal model of personal jurisdiction only to acknowledge at the same time that the model may not fit common fact patterns, the Court undercut its own interest in doctrinal consistency. As other scholars have pointed out, “[t]he Internet is not exceptional for personal jurisdiction—it is a vital exemplar of deeper fissures in the doctrine that courts and scholars should address holistically.”[74] A test for personal jurisdiction that is not robust enough to incorporate common business and personal activity offers little guidance either for parties or for courts.

*            *            *

Oliver Wendell Holmes said, “hard cases make bad law.”[75] But the Ford case suggests that the corollary—that easy cases make good law—may not be true. This case was easy. The justices were unanimous in holding that the exercise of personal jurisdiction by Montana and Minnesota did not violate Ford’s due process rights. Indeed, for the first time, a Court majority explicitly approved the exercise of jurisdiction where the plaintiff’s claim “related to,” as opposed to “arose from,” the defendant’s forum conduct. Yet, the majority and concurring opinions illustrate the fault lines among the justices’ perceptions of where the doctrine should go from here. Time will tell if Ford signals a robust change in the landscape of personal jurisdiction that places greater emphasis on the “fairness” of the jurisdictional assertion to the defendant in light of the state’s comparative interest in adjudicating the dispute or if Ford is merely a temporary halt in the march toward a tighter, defendant-friendly personal jurisdiction doctrine that has been the hallmark of the Roberts Court up to this point.  What is clear is that this case has piqued the interest of scholars, litigators, and judges because it evokes a multitude of unanswered questions that will surely be the subject of litigation in coming years, quite possibly decades.

[*] Professor of Law, Suffolk University Law School.

[†] Professor of Law and Charles Weigel II Research Professor of State and Federal Constitutional Law, South Texas College of Law Houston.

[‡] John Deaver Drinko - BakerHostetler Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve University School of Law.

[4] Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017 (2021).

[5] Id. at 1031; cf. id. at 1033 (Alito, J., concurring in the judgment) (describing the “common-sense relationship” between Ford’s activities and plaintiffs’ suits).

[6] Id. at 1025 (quoting Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017)).

[7] Id. at 1028 (quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).

[8] See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

[9] See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); Helicopteros, 466 U.S. at 415 n.10.

[10] Ford, 141 S. Ct. at 1026.

[11] See BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549 (2017); Daimler AG v. Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).

[12] See Walden v. Fiore, 571 U.S. 277 (2014).

[13] See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011).

[14] See Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

[15] In Nicastro, Chief Justice Roberts joined Justice Kennedy’s plurality opinion, Justice Breyer concurred separately joined by Justice Alito, and Justices Sotomayor and Kagan joined Justice Ginsburg’s dissenting opinion. Nicastro, 564 U.S. at 876. Justice Sotomayor had also disagreed with several other of the Court’s jurisdictional holdings in separate concurrences and dissents. See Bristol-Myers, 137 S. Ct. at 1784 (Sotomayor, J., dissenting); BNSF, 137 S. Ct. at 1560 (Sotomayor, J., concurring in part & dissenting in part); Daimler, 571 U.S. at 142 (Sotomayor, J., concurring in the judgment).

[16] Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102 (1987).

[17] Nicastro, 564 U.S. at 876.

[18] Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).

[19] Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017, 1025 (2021).

[20] Id.

[21] Id. at 1026 (emphasis in original) (quoting Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1776, 1780, (2017) and Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)).

[22] Id.

[23] Id. (quoting Bristol-Myers, 137 S. Ct. at 1780–81, and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

[24] Id. at 1027.

[25] World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980).

[26] Ford, 141 S. Ct. at 1030–31.

[27] Id. at 1028 n.4.

[28] Id. at 1025 (quoting World-Wide Volkswagen, 444 U.S. at 293).

[29] Id. at 1031.

[30] Id. at 1033 (Alito, J., concurring in the judgment); id. at 1034 (Gorsuch, J., concurring in the judgment) (both quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)).

[31] World-Wide Volkswagen, 444 U.S. at 286.

[32] Ford, 141 S. Ct. at 1032 (Alito, J., concurring in the judgment) (emphasis in original).

[33] Id.

[34] Id. at 1033.

[35] Id. at 1033–34.

[36] Id. at 1039 (Gorsuch, J., concurring in the judgment).

[37] Id.

[38] Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).

[39] Ford, 141 S. Ct. at 1036 (Gorsuch, J., concurring in the judgment).

[40] Id. at 1038.

[41] See Charles W. “Rocky” Rhodes, The Roberts Court’s Jurisdictional Revolution within Ford’s Frame, 51 Stetson L. Rev ___, n. 152 (forthcoming 2021) (explaining that “International Shoe and its progeny, at least as interpreted by the lower federal and state courts before the Roberts Court’s revolution, are the wrong villain for his musings.”).

[42] Ford, 141 S. Ct. at 1035 (Gorsuch, J., concurring in the judgment).

[43] Id. at 1038.

[44] Id.

[45] Id. at 1039 n.5.

[46] See Charles W. "Rocky" Rhodes, Cassandra Burke Robertson, & Linda Sandstrom Simard, Ford's Jurisdictional Crossroads, 109 Geo. L.J. Online 102, 114 (2020).

[47] The cases in which the Court has previously upheld specific jurisdiction did not involve challenges to the scope of specific jurisdiction, apparently because the plaintiff’s claims clearly arose from the defendant’s forum conduct. See, e.g., Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945); McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957); Burger King Corp. v. Rudzewicz, 471 U.S. 462 2174 (1985).

[48] Brief for Petitioner at 24–26, Ford, 141 S. Ct. 1017 (No. 19-368).

[49] Burger King, 471 U.S. at 476–77 (“Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ Thus courts in ‘appropriate [cases]’ may evaluate ‘the burden on the defendant,’ the forum State’s interest in adjudicating the dispute,’ the plaintiff’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’”) (citations omitted).

[50] See, e.g., Rogers v. City of Hobart, Ind., 996 F.3d 812 (7th Cir. 2021); Ex parte TitleMax of Ga., Inc., No. 1200128, 2021 WL 2024678 (Ala. May 21, 2021); Luciano v., LLC, 65 S.W.3d 1 (Tex. 2021).

[51] Ford, 141 S. Ct. at 1025 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)).

[52] Id. at 1031.

[53] See, e.g., Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011).

[54] See Ford, 141 S. Ct. at 1025, 1026–27, 1031.

[55] Cf. Bristol-Myers, 137 S. Ct. at 1781.

[56] Ford, 141 S. Ct. at 1025.

[57] Id. at 1028 & n.4.

[58] Id. at 1028.

[59] Walden v. Fiore, 571 U.S. 277 (2014).

[60] Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

[61] Ford, 141 S. Ct. at 1029 (“In conducting so much business in Montana and Minnesota, Ford ‘enjoys the benefits and protections of [their] laws’—the enforcement of contracts, the defense of property, the resulting formation of effective markets.”).

[62] Id. at 1025.

[63] Id. at 1028 n.4.

[64] Cassandra Burke Robertson, The Inextricable Merits Problem in Personal Jurisdiction, 45 UC Davis L. Rev. 1301, 1349–50 (2012) (“Recent defamation suits over online consumer reviews evidence just such an attempt to crack down on allegedly wrongful speech. But if such speech is chilled, the public forum will suffer.”); Sarah H. Ludington, Aiming at the Wrong Target: The "Audience Targeting" Test for Personal Jurisdiction in Internet Defamation Cases, 73 Ohio St. L.J. 541 (2012).

[65] Marketa Trimble, Copyright and Geoblocking: The Consequences of Eliminating Geoblocking, 25 B.U. J. Sci. & Tech. L. 476, 497 (2019) (“Faced with the inevitability of global licensing and with no backing from large corporations, some copyright owners might decline to make their works available to the public on the internet (or at all) . . . .”); Robin J. Effron, Trade Secrets, Extraterritoriality, and Jurisdiction, 51 Wake Forest L. Rev. 765, 777 (2016) (“[I]t is unclear. . . that downloading computer information from a corporation in a given jurisdiction is, without other contacts, enough to constitute an express targeting of the corporation where it is located. If a corporation's servers or computers are located in a different forum, or if the defendant does not know where the corporation is located, the case for personal jurisdiction is markedly weaker.”).

[66] Damon C. Andrews & John M. Newman, Personal Jurisdiction and Choice of Law in the Cloud, 73 Md. L. Rev. 313, 361 (2013) (“In the cloud, however, torts do not have to occur through any sort of website-host-consumer interaction.”).

[67] Derek E. Bambauer, The MacGuffin and the Net: Taking Internet Listeners Seriously, 90 U. Colo. L. Rev. 475, 493 (2019) (“[S]ome courts have created Internet-specific (or, perhaps, Internet-peculiar) personal jurisdiction doctrine that is at best benighted and at worst unconstitutional.”).

[68] See, e.g., United States v. Mendoza, 464 U.S. 154, 160 (1984) (declining to adopt nonmutual offensive collateral estoppel in cases against the government, as such a holding “would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari.”).

[69] Michael Coenen & Seth Davis, Percolation's Value, 73 Stan. L. Rev. 363, 388–89 (2021) (“Postponing Supreme Court resolution of a legal issue creates unpredictability for those seeking to comply with their legal duties. Moreover, the percolation process increases the costs of such compliance as well as the administrative costs of running the judicial system, particularly insofar as the percolation process by definition demands additional litigation.”).

[70] Massie v. Gen. Motors Co., No. 1:20-CV-01560-JLT, 2021 WL 2142728, at *1 (E.D. Cal. May 26, 2021).

[71] Id.

[72] Id. (“[I]n Ford, the Supreme Court stated that its holding, which involved physical purchases of cars, did not bear on the ‘doctrinal questions’ associated with personal jurisdiction in the online context.”).

[73] Id. at *6.

[74] Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the "Interwebs", 100 Cornell L. Rev. 1129, 1190 (2015).

[75] N. Securities Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting) (“Great cases like hard cases make bad law.”).

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