Daimler and The Jurisdictional Triskelion

by Zoe Niesel

Twice in the past three years, in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman, the Supreme Court articulated a new landscape of general personal jurisdiction; namely, exercises of dispute-blind jurisdiction will be based on a determination of whether a corporation is “at home” in the jurisdiction, not on whether the corporation had continuous and systematic contacts in the forum state. The Court’s test was further explained in terms of three different fora: where the corporation is incorporated, where it maintains its principal place of business, and where there are unique circumstances suggesting that the corporation is truly “at home.” Unfortunately, the Court failed to articulate an underlying policy that bound together the three bases of general jurisdiction, and it refused to clarify what types of unique situations might give rise to general personal jurisdiction outside the state of incorporation and principal place of business. Thus, although a new test was articulated, its boundaries and theoretical foundations remain woefully unclear.

This Article seeks to elucidate general jurisdiction’s new normal by exploring the jurisdictional triskelion—three interconnected bases of general jurisdiction united by a core underlying policy. While the state of incorporation and principal place of business form the first two bases, this Article suggests that the third basis, now designated only as “unique circumstances,” should be defined by fora in which the corporation maintains (1) a physical office, (2) employees, and (3) corporate decision makers or executives. These considerations have long appeared in the Court’s jurisprudence on general jurisdiction and have the added benefit of being easy to ascertain without significant resource expenditure. Further, defining the third basis in this way lends clarity to the purpose and policy of general jurisdiction. While the Court has never addressed what policy supports the exercise of general jurisdiction, the Daimler Court noted that principles of general jurisdiction stem from traditional conceptions of jurisdictional power. Since pre-International Shoe personal jurisdiction was rooted in the link between sovereign states and their citizens, the three modern bases of general jurisdiction must now emanate from state citizenship.

This Article suggests that a corporation should be considered a citizen in fora that help it further its own corporate existence and overarching directives. The state of incorporation, the principal place of business, and fora, where there is an office, employees, and executives in the state, all illustrate this policy–they all promote the corporation’s direction and control of its own existence. Accordingly, all three bases are paradigmatic of general jurisdiction and emanate from a core policy rooted in state sovereignty. Re-conceptualizing general jurisdiction in this way not only clarifies the “at home” standard adopted in Daimler, but clearly establishes the situations in which an exercise of dispute-blind jurisdiction will comport with due process standards.

 

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