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Further Thinking About Vicarious Jurisdiction: Reflecting on Goodyear Dunlop Tires Operations, S.A. v. Brown and Looking Ahead to DaimlerChrysler Ag v. Bauman

A question that arises with surprising frequency in civil litigation turns out to be as important as it is poorly understood: should a defendant ever be subject to jurisdiction based on what someone else did? Building on my prior work, I contend in this paper that while the attribution of contacts is a necessary part of modern doctrine, jurisdictional analysis would be improved significantly if courts stopped looking to substantive legal theories that were not designed for setting constitutional limits on judicial power. Instead of relying on veil piercing, alter ego, single business enterprise and other substantive law doctrines to justify the exercise of jurisdiction, courts should keep a more disciplined focus on the defendant’s own connection to the forum. I argue that this alternative approach, which is amply supported by the Court’s prior decisions, gains added purchase after Goodyear’s articulation of its refined, narrower test for exercising general jurisdiction. Bauman will be the Court’s next occasion to address arguments for these vicarious exercises of jurisdiction and its opportunity to try to lesson some existing doctrinal uncertainties in how judicial power is measured.