Personal Jurisdiction at SCOTX
Justice Busby pens a concurrence calling for the Supreme Court to revisit its personal jurisdiction jurisprudence to provide greater clarity.
This week’s orders included the Court’s decision in BRP-Rotax GmbH v. Shaik. As Justice Young’s majority opinion notes, the Court breaks no new jurisprudential ground in this straightforward application of Texas’s “stream of commerce plus” test. The Court concludes that Texas has no personal jurisdiction over an Austrian manufacturer of aircraft engines that did not intentionally target Texas for its products. The Court also disposed of a suit against a South Korean auto manufacturer in Hyundam Industrial Co., Ltd v. Swacina for the same reasons as BRP-Rotax—there was no evidence that the out-of-state defendant purposefully targeted Texas.
Justice Busby, joined by Justice Devine, concurred. I’ve previously written about the value of concurrences, particularly for their useful insight into the Justices’s desire to revisit the law in certain areas. And my friends over at Texas Legal Roundup are now keeping track of concurrences where Justices identify Texas law they would like to revisit. In BRP-Rotax, Justice Busby calls for the U.S. Supreme Court to revisit its personal jurisdiction jurisprudence. His concurrence sounds in the same register as Justice Young’s concurrence last term in Texas Department of Insurance v. Stonewater Roofing, which criticized the Supreme Court’s muddled and unoriginalist First Amendment jurisprudence. In Stonewater, a case about professional licensure and regulation, Justice Young called for the Supreme Court to revisit the tiers of scrutiny and to provide greater clarity in determining what is protected speech. He may get his wish next term when the Supreme Court decides Chiles v. Salazar, which calls on the Court to decide whether a state can limit what therapists say to patients. Specifically, Chiles asks the the Court to address whether a law prohibiting therapists from engaging in conversion therapy is a content-based regulation on speech and violates the First Amendment.
In BRP-Rotax, Justice Busby sets his sights on the Supreme Court’s muddled, unpredictable, and unoriginalist personal jurisdiction jurisprudence that he argues has, over the years, strayed from an original understanding of the state’s sovereign power to exercise jurisdiction over a defendant to a constitutionalized mandate of “fairness” to out-of-state defendants. We’ll see whether Justice Busby gets his wish. Things don’t look terribly promising. On the same day BRP-Rotax was decided, the Supreme Court decided Fuld v. PLO, which leans into the Court’s practice of rooting personal jurisdiction in the Due Process Clause. In Fuld, the question presented was whether the exercise of personal jurisdiction over the PLO under the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) violates the Due Process Clause of the Fifth Amendment. Answering the question in the negative, the Supreme Court distinguished between the fairness and interstate federalism concerns animating the Fourteenth Amendment due process limitations on state courts exercising personal jurisdiction and the Fifth Amendment’s limitations. In Fuld, the Supreme Court concluded that “[b]ecause the state and federal governments occupy dramatically different sovereign spheres, the Court declines to import the Fourteenth Amendment minimum contacts standard into the Fifth Amendment. Rather, the Fifth Amendment permits a more flexible jurisdictional inquiry commensurate with the Federal Government’s broader sovereign authority.” With few changes in the Court’s composition likely in in the very near future, it seems hard to see a radical course change. (In contrast, since NIFLA v. Becerra—the last time SCOTUS decided professional speech limitations—before granting Chiles, three Justices have been replaced). At least one personal jurisdiction aficionado, however, sees the Supreme Court overturning International Shoe in his lifetime.
J. Busby’s BRP-Rotax Concurrence
Justice Busby carefully walks through the evolution of personal jurisdiction from Pennoyer v. Neff to Mallory v. Norfolk Southern, recognizing that “fairness” has become the north star of personal jurisdiction since International Shoe. Purportedly, this is so—and the doctrine moored to the Due Process Clause—to promote predictability and consistency. But the implementation of a “fairness” doctrine—at best a nebulous concept—is responsible for widespread unpredictability and inconsistency. Put simply, fairness is an abstraction without easy application that leads to inconsistency both among the federal courts and between federal and state courts. Setting aside the myriad decisions based on divergent weighing of facts, different states’ courts are divided on the correct standard to apply in deciding whether a corporate defendant has minimum contacts with the forum, as are federal circuit courts across the country. “Even more troubling, state courts and the federal circuits that include those States have split on what standard to apply, as this case shows.” Indeed, that is the situation in Texas—the Fifth Circuit applies the “stream-of-commerce” test, which permits jurisdiction based on foreseeability of the product ending up in the forum, and Texas applies the more-stringent “stream-of-commerce-plus” test, which requires an intent or purpose to serve the forum.
Perhaps most problematic, from Justice Busby’s perspective, is simply that this chaos is unnecessary—the current jurisdictional framework is a stark departure from the original understanding of personal jurisdiction. At the time of the founding, indeed for more than 100 years after, jurisdiction was about respecting a state’s sovereignty in exercising power over persons or property within its territory. Justice Busby notes that Pennoyer recognized the importance of sovereignty considerations. The Supreme Court’s decision was rooted not in due process, which simply the provided the vehicle for federal court review of the state court’s decision. Rather, the decision was based on the customary law that had existed for centuries. But Justice Busby suggests that the Supreme Court has lost its way.
As Justice Busby recounts, in the wake of Pennoyer, the Court has issued a series of confusing pluralities that replaced considerations of sovereignty with a “potpurri of catchphrases and buzzwords” that lower courts simply do not know how to apply. The Supreme Court has not only permitted confusion, it has fostered confusion by failing to provide clear guidance—each successive case has been a plularity opinion for which even the Justices cannot agree on the meaning. For example, “in Ford Motor Co. v. Montana Eighth Judicial District Court (one of the Court’s recent attempts at untangling the doctrine) there was fair-minded disagreement on what the majority’s opinion meant.” As Judge Oldham has noted, “[i]t is a perilous project [for lower courts] to interpret a Supreme Court [doctrine] that the Justices themselves interpret differently.” Ethridge v. Samsung SDI Co., 137 F.4th 309, 317 (5th Cir. 2025) (Oldham, J.). And this leads to peculiar results, including that a party may be able to file suit against the same defendant in federal court in the forum state while being unable to file in the state court.
Justice Busby notes a particularly interesting peculiarity (discontinuity) of the due-process based jurisprudence: “Constitutional limits on personal jurisdiction would not apply if the corporation were charged criminally or if a foreign individual sent a harmful product into the country, and such a corporation cannot claim other important constitutional protections. Yet every relevant Supreme Court decision has assumed that foreign corporations are protected from undesirable litigation in the United States as a matter of due process—without offering any reason why.” That is, the Constitution (and due process) are intended to protect those within the United States. Yet foreign defendants are claiming rights while steadfastly insisting that they are not subject to the laws of the forum. So there is a “contradiction between demanding the right to stay at home abroad while claiming the due process rights that belong to those at home in the United States.”
One of Justice Busby’s concluding points is prescient:
One benefit of not constitutionalizing substantive limits on personal jurisdiction, as Justice Story recognized long ago, is that they can be adjusted by the politically accountable branches as times change. Should Congress and the President conclude that customary limits on courts’ jurisdiction to adjudicate are out of step with the modern world, they would retain the power to change the applicable rules by statute.
The Court’s jurisprudence has had to adapt to a significantly different world. For example the internet spurred its own test—Zippo—which requires courts to consider the interactivity and commercial nature of the defendant’s website to decide whether personal jurisdiction exists. Constitutionalizing the doctrine makes that tricky and results in many contortions to make it all work.
Justice Busby’s thoughtful and incredibly thoroughly researched and footnoted opinion (it includes a deep dive into the academic literature on personal jurisdiction) has a strong point. And he’s surely right that personal jurisdiction has been a morass that fails to live up to the promise of predictability and consistency. But it overlooks a little (just a tiny bit!) the extent to which Pennoyer’s recognition that sovereignty animates personal jurisdiction still plays a role, albeit a subsidiary one, in courts’ assessments.
One of the many considerations in personal jurisdiction today is the forum’s interest in regulating the defendant’s conduct and adjudicating the dispute. We see sovereignty play some role in decisions like J. McIntyre Machinery v. Nicastro. Indeed, there the Supreme Court recognized that “[t]he conclusion that jurisdiction is in the first instance a question of authority rather than fairness explains, for example, why the principal opinion in Burnham ‘conducted no independent inquiry into the desirability or fairness’ of the rule that service of process within a State suffices to establish jurisdiction over an otherwise foreign defendant.” The Supreme Court continued that “were general fairness considerations the touchstone of jurisdiction, a lack of purposeful availment might be excused where carefully crafted judicial procedures could otherwise protect the defendant's interests, or where the plaintiff would suffer substantial hardship if forced to litigate in a foreign forum. That such considerations have not been deemed controlling is instructive.” And “if another State were to assert jurisdiction in an inappropriate case, it would upset the federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by other States. Furthermore, foreign corporations will often target or concentrate on particular States, subjecting them to specific jurisdiction in those forums.”
For now, trial lawyers (and their appellate support like me) are left to parse the facts (“additional” and “actionable” conduct in Texas) in complaints (petitions), affidavits, and motions to establish personal jurisdiction. And courts are left to make sometimes murky decisions about which of those facts really matter. Until the Supreme Court actually creates a more predictable personal jurisdiction framework, appellate lawyers and courts are unlikely to run out of work in the area.