Tag: Personal Jurisdiction

Commentators describe recent Supreme Court decisions as changing the law, to require courts to examine the propriety of personal jurisdiction as to all joined plaintiffs’ claims against a defendant. Nevertheless, many of those commentators argue that courts remain free to ignore unnamed plaintiff class members’ claims for personal jurisdiction purposes. After demonstrating that many lower courts already applied this requirement to mass actions before the Supreme Court’s recent decisions, this Article argues to the contrary that consideration of unnamed class plaintiffs’ claims is constitutionally required for state courts, and generally required under current subconstitutional law for federal courts. It then considers possible workarounds to mitigate the effects of the requirement, including invoking national personal jurisdiction and extracting consent from corporations in return for permission to conduct business.

INTRODUCTION

Say that a company based in Rhode Island manufactures a product that numerous consumers across the country allege caused them injury. While the economics suggest that it would be difficult, if not impossible, for any one consumer to pursue a lawsuit, a class action would be eminently feasible.¹The advent of the modern class action enabled parties allegedly suffering injuries by virtue of a corporation’s product to sue that corporation in the form of a class action. The popularity of class actions has waxed and waned over the years. See, e.g., Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2013); David Marcus, The History of the Modern Class Action, Part I: Sturm und Drang, 1953–1980, 90 Wash. U. L. Rev. 587 (2013); David Marcus, The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981–1994, 86 Fordham L. Rev. 1785 (2018).

Of course, any such suit would require a showing a proper personal jurisdiction.²See infra Part I. Assuming the corporation availed itself of the forum in which a plaintiff was injured, each plaintiff could probably file an individual action in that forum.³It seems that there would be specific personal jurisdiction over such a claim. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024–32 (2021) (taking a broad approach to specific jurisdiction); infra notes 96–102 and accompanying text; see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879–87 (2011) (plurality opinion) (no personal jurisdiction in New Jersey forum over a foreign corporation whose product allegedly injured plaintiff within the forum, where the corporation did not purposefully avail itself of the particular state forum). And the Supreme Court’s consistent holding that (absent consent) a court must have personal jurisdiction over a plaintiff’s claim against an out-of-state defendant clearly requires the court to have proper personal jurisdiction as to the named class representatives’ claims against the corporation.⁴See Pennoyer v. Neff, 95 U.S. 714 (1878); Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). For further discussion, see infra notes 114–119 and accompanying text. But can a lead plaintiff pursue a class action in the forum in which she was injured—say, Idaho—even if other members of the putative plaintiff class were injured elsewhere—indeed, have no connection whatsoever to the forum? To put the question another way, must a court consider the claims of unnamed plaintiff class members in determining the propriety of personal jurisdiction?

The answer to this question is of great moment. As the foregoing example suggests, if a court must have proper personal jurisdiction as to each unnamed plaintiffs’ claim against the corporation, then the number of available forums to host a multistate class action may drop precipitously. After all, to the extent that personal jurisdiction is required only for the class representatives, then named representatives who were allegedly injured in their home state can likely obtain proper personal jurisdiction to sue in a court in their home state (and perhaps also in federal court if the requisites for some form of federal subject matter jurisdiction is met), with the rest of the class—that is, other individuals who were allegedly injured in other states—free to come along for the ride. But, on the other hand, if all members of the class must have viable personal jurisdiction as to their own claims, then presumably (absent the defendant’s consent) suit must proceed in a forum where the defendant is subject to the court’s general jurisdiction—that is, where the defendant is subject to suit on all claims, irrespective of whether the claims arise out of the defendant’s contacts with the forum state.⁵See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984); infra notes 39–40 and accompanying text.

The issue has long gone unresolved.⁶See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 445 (7th Cir. 2020) (noting that the issue “has not been examined closely”). For many years, the issue was largely unexamined because of a then-prevalent broad understanding (overly broad, it turned out, in light of subsequent Supreme Court rulings) of general jurisdiction, the subset of personal jurisdiction that applies when a defendant is subject to suit on all claims, irrespective of whether the claims arise out of the defendant’s contacts with the forum state. Indeed, for a nationwide corporation, the longstanding governing regime for general jurisdiction allowed (at least as it was understood across the lower courts) for personal jurisdiction in virtually every state and federal district.⁷See Jonathan Remy Nash, The Rules and Standards of Personal Jurisdiction, 72 Ala. L. Rev. 465, 485–87 (2020). This broad conception of general jurisdiction as to corporations means that defendants generally did not challenge, and thus courts had no occasion to address, the propriety of personal jurisdiction as to unnamed plaintiffs’ claims.⁸Personal jurisdiction is waivable. Thus, a failure to object to personal jurisdiction leaves the court with no reason to examine the issue. See infra notes 34, 164, and accompanying text.

Supreme Court decisions from the previous decade have brought to the fore the issue of personal jurisdiction as to unnamed class plaintiffs. The 2010s witnessed the Court effecting an avulsive change to the law of personal jurisdiction.⁹See Nash, supra note 7, at 467–68. In particular, the Court greatly trimmed the availability of general jurisdiction, limiting general jurisdiction over a corporation to its place of incorporation and principal place of business.¹⁰See Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011); Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). This change in the law elevates the importance of the need to establish personal jurisdiction with respect to the claims of all class members, or only for the named class representatives. To the extent that personal jurisdiction is required for all class members, then presumably either (i) a multistate class will generally only succeed in the corporate defendant’s home state(s) under general jurisdiction, or (ii) the named plaintiffs will have to settle for a statewide class action in their own state, with putative plaintiffs in other states free to pursue their own class actions in their own states.

The Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court¹¹Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773 (2017). confirmed the likelihood that indeed personal jurisdiction is required as to all class members’ claims. Bristol-Myers did not involve a class action, but it did involve a ‘mass tort action’—that is, the aggregation of numerous plaintiffs’ tort claims—in a forum not the ‘home’ of the defendant drug manufacturer. Specific jurisdiction—that is, the subset of personal jurisdiction applicable where the plaintiffs’ claims arise out of the defendant’s contacts with the forum¹²See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984); infra notes 41–43 and accompanying text. —as to the in-state plaintiffs was not challenged, insofar as the injuries there resulted from purchases and ingestion of the drug in question in the forum.¹³Bristol-Myers Squibb, 137 S. Ct. at 1781 (noting that the California plaintiffs “were prescribed, obtained, and ingested Plavix in California”). But the defendant did challenge the California Supreme Court’s holding that specific jurisdiction was proper as to the out-of-state plaintiffs based on a “sliding scale approach to specific jurisdiction.”¹⁴Bristol-Myers Squibb Co. v. Superior Ct., 377 P.3d 874, 889 (Cal. 2016), rev’d,137 S. Ct. 1773 (2017). Under that approach, “‘the more wide ranging the defendant’s forum contacts, the more readily is shown a connection between the forum contacts and the claim.’”¹⁵Id. (quoting Vons Cos., Inc. v. Seabest Foods, Inc., 926 P.2d 1085, 1098 (Cal. 1996)).

The Supreme Court’s primary holding was that the state’s attempt to relax “the strength of the requisite connection between the forum and the specific claims at issue . . . if the defendant has extensive forum contacts that are unrelated to those claims” was an invalid effort to craft specific jurisdiction into “a loose and spurious form of general jurisdiction.”¹⁶Bristol-Myers Squibb, 137 S. Ct. at 1781. But, in so holding, the Court also made clear that the out-of-state plaintiffs could not rely on the personal jurisdiction of the in-state plaintiffs’ claims. Rather, each plaintiff had to establish proper personal jurisdiction as to her own claim.¹⁷Id. (“The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims.”).

This secondary holding of Bristol-Myers was in many ways not surprising. In fact, as we shall see, some lower courts already understood that each plaintiff in a case that joined together their claims had to establish independent personal jurisdiction as to her own claim. Still, many courts and commentators reacted with surprise at the decision, especially at its clear implication that independent personal jurisdiction might be required even as to unnamed class action plaintiffs.¹⁸See, e.g., Mussat v. IQVIA Inc., 953 F.3d 441, 445 (7th Cir. 2020) (“Before the Supreme Court’s decision in Bristol-Myers, there was a general consensus that due process principles did not prohibit a plaintiff from seeking to represent a nationwide class in federal court, even if the federal court did not have general jurisdiction over the defendant.”); Adam N. Steinman, Beyond Bristol-Myers: Personal Jurisdiction over Class Actions, 97 N.Y.U. L. Rev. 1215, 1264 (2022) (“The Supreme Court’s decision in Bristol-Myers has raised the disturbing possibility that personal jurisdiction will restrict nationwide class actions, which are often necessary means of access and enforcement.”); Andrew D. Bradt & D. Theodore Rave, Aggregation on Defendants’ Terms: Bristol-Myers Squibb and the Federalization of Mass-Tort Litigation, 59 B.C. L. Rev. 1251, 1256–57 (2018) (“Essentially, with some exceptions that we will discuss, after Bristol-Myers, mass-tort plaintiffs can either (1) assemble a nationwide group to sue together in state court in the defendant’s home state or potentially a state where it directed nationwide conduct; (2) sue individually or in smaller groups in their own home states’ courts if they can find a way to avoid removal; or (3) sue in, or allow removal to, federal court (either in their home states or the defendant’s) where their cases will be aggregated for pretrial proceedings in an MDL.”); Daniel Wilf-Townsend, Class Action Boundaries, 90 Fordham L. Rev. 1611, 1618 (2022) (“The Court’s decision in [Bristol-Myers] immediately raised questions about how the rules of specific jurisdiction apply in the class action context to the claims of absent class members.”); David Marcus & Will Ostrander, Class Actions, Jurisdiction, and Principle in Doctrinal Design, 2019 BYU L. Rev. 1511, 1520 (2019) (describing the issue of “whether the claims of absent class members matter to the determination of whether a defendant comes with the court’s personal jurisdiction” as “a question prompted by the 2017 [Bristol-Myers] decision”).

Despite the apparent clarity with which the requirement that unnamed class plaintiffs’ claims matter for personal jurisdiction purposes now shines, the vast majority of authority has endorsed the view that unnamed class plaintiffs’ claims are irrelevant for personal jurisdiction purposes. In an opinion for a Seventh Circuit panel by Judge Diane Wood—and joined by then-Circuit Judge Amy Coney Barrett—the court in Mussat v. IQVIA, Inc., held that, “[o]nce certified, the class as a whole is the litigating entity, . . . and its affiliation with a forum depends only on the named plaintiffs.”¹⁹Mussat, 953 F.3d at 445 (citation omitted). The Sixth Circuit in Lyngaas v. Curaden AG, over a dissent on the point by Judge Thapar, followed suit, characterizing the argument in favor of considering unnamed class plaintiffs’ claims as one that “[t]he vast majority of lower courts have rejected.”²⁰Lyngaas v. Curaden AG, 992 F.3d 412, 434 (6th Cir. 2021); see Daniel Wilf-Townsend, Did Bristol-Myers Squibb Kill the Nationwide Class Action?, 129 Yale L.J.F. 205, 207 (2019) (cataloguing cases, and finding at the time that “a substantial majority of district courts have not read [Bristol-Myers] to prohibit those class members’ participation and have instead permitted class actions to proceed largely as they would have before [Bristol-Myers] was decided”). But see Molock v. Whole Foods Market Group, Inc., 952 F.3d 293, 305-10 (D.C. Cir. 2020) (Silberman, Sr. J., dissenting) (reaching the contrary result, while the majority did not resolve the issue).

Commentators have added scholarly heft to this position.²¹As Professor Wilf-Townsend notes, few commentators “have grappled with the question of whether the argument [that state boundaries should matter in considering unnamed class members’ claims] should be adopted.” Wilf-Townsend, supra note 18, at 1624. Instead, most scholarly commentary has instead focused on the effects such a position “would have for aggregate litigation.” Id. In a 2018 article in the Northwestern Law Review, Professor Scott Dodson offered a tentative argument that, as he put it, “might be enough to take some class actions out from underneath Bristol-Myers Squibb.”²²Scott Dodson, Personal Jurisdiction and Aggregation, 113 Nw. U. L. Rev. 1, 31 (2018). In a 2019 Brigham Young Law Review article, Professor David Marcus and student coauthor Will Ostrander expressed skepticism about some arguments in favor of ignoring unnamed class members for personal jurisdiction purposes, but ultimately signed onto that view.²³See Marcus & Ostrander, supra note 18, at 1520–49. In a recent Fordham Law Review article, Professor Daniel Wilf-Townsend was more full-throated about his support for this view,²⁴See Wilf-Townsend, supra note 18, at 1625–64. as was Professor Adam Steinman in an article in the New York University Law Review.²⁵See Steinman, supra note 18. These commentators agree with the majority of courts—and both courts of appeals to have addressed the issue—that unnamed class plaintiffs can be ignored when determining the propriety of personal jurisdiction.

In this Article, I argue to the contrary that, under current law, courts must consider the propriety of personal jurisdiction as to each unnamed plaintiff’s class member’s claim against a defendant. State courts—my focus here—must do so as a matter of constitutional law, and federal courts must do so because they are in general—and certainly with respect to claims brought under state law—obligated under common understandings of current subconstitutional law to exert no greater personal jurisdictional authority than the courts of the state in which they sit.

In advancing the arguments here, I make four contributions. First, I offer a detailed defense of the need to consider unnamed class plaintiffs’ claims—a defense that goes beyond the syllogism that Goodyear, Daimler, and Bristol-Myers require it. I delve into, and refute, arguments in favor of ignoring unnamed class plaintiffs’ claims.²⁶See infra Part IV.

     Other commentators have taken the position I take here but have not refuted the counterarguments that others have made. Professors Andrew Bradt and Theodore Rave do survey some of the ground that I consider and reach similar conclusions, but their focus is more broadly on the impact of the Court’s Bristol-Myers decision on various types of litigation. See Bradt & Rave, supra note 18, at 1282–91. Moreover, Professors Bradt and Rave wrote before many courts and scholars took the position that unnamed class members’ claims should be ignored. Their analysis is thus but a part of a broader project, and their discussion of class actions is more cursory and predictive than what unfolds below.

     Dean Benjamin Spencer addresses the need to consider unnamed class members’ claims, but his focus, unlike mine, is on federal courts. See A. Benjamin Spencer, Out of the Quandary: Personal Jurisdiction over Absent Class Members Explained, 39 Rev. Litig. 31, 34 (2019). Given that focus, moreover, Dean Spencer’s attention falls more on subconstitutional than constitutional issues. See id. at 35–51. Moreover, he, like Professors Bradt and Rave, wrote before the onslaught of authority in the other direction developed.

Second, I demonstrate that it is Goodyear and Daimler that have brought the importance of personal jurisdiction over unnamed class plaintiffs’ claims to the fore. Claims that Bristol-Myers’ secondary holding (confirming the need to consider other named plaintiffs’ claims in the personal jurisdiction calculus)²⁷See supra notes 17–18 and accompanying text. necessitates this conclusion—advanced even by some who agree with my ultimate legal conclusion²⁸See supra note 26. —are overstated.

Third, I explain the impact of the requirement that courts consider unnamed class plaintiffs’ claims in assessing the propriety of personal jurisdiction. The impact as to domestic and foreign corporate defendants is quite different. The impact as to domestic corporate defendants is to limit the number of viable legal forums for multistate class actions. While that effect is hardly insubstantial, it pales in comparison to the impact on foreign corporate defendants, which may often be to deny any domestic forumin which a multistate class action can be heard.

Fourth, I consider and evaluate ways (short of reverting to a broader conception of general jurisdiction) to remedy the situation. Expanding the use of national minimum contacts in the personal jurisdiction calculus, and extracting consent from corporate defendants to general jurisdiction (at least as to class actions) are two options. The federal government is better positioned to deploy these strategies as to federal courts (and indeed states may lack the authority altogether to do so). Finally, as a normative matter, a remedy is far more important for class actions against foreign, as opposed to domestic, corporate defendants.

This Article proceeds as follows. Part I presents the basics of personal jurisdiction, with some emphasis on Supreme Court precedent speaking to class actions. Part II highlights the stakes of requiring consideration of unnamed class plaintiffs’ claims as part of the personal jurisdiction inquiry.

Part III addresses the intermediate step of whether, outside the class action context, personal jurisdiction calculus requires consideration of the claims of joined plaintiffs. It argues that, while Bristol-Myers confirmed this requirement, many lower courts already understood that to be the law.

Part IV tackles the central question of whether personal jurisdiction calculus requires consideration of the claims of unnamed class plaintiffs. It argues that simple logic indicates that it does, and it then refutes arguments to the contrary. Part V then considers and assesses possible workarounds.

I. THE BASICS OF CONSTITUTIONAL PERSONAL JURISDICTION

This Part presents an overview of the Supreme Court’s jurisprudence governing the assertion of personal jurisdiction by state courts—and federal courts, insofar as applicable law generally directs federal district courts to follow personal jurisdiction limitations imposed on state courts—with respect to out-of-state litigants. While a state court exercise of personal jurisdiction must comply with the governing state long-arm statute, the overview here focuses on federal constitutional limits on the exercise of personal jurisdiction. Finally, after examining state court exercise of personal jurisdiction (which is my focus here, and has provided the fodder for all of the Supreme Court’s exegesis of personal jurisdiction²⁹See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedures § 1067.1 (4th ed. 2022) (collecting cases).), the overview concludes with a brief discussion of federal court exercise of personal jurisdiction (which, insofar as applicable law generally directs federal district courts to follow personal jurisdiction limitations imposed on state courts, largely—but not entirely—mirrors state court practice).

The Supreme Court has long recognized a limitation on a state court’s ability to assert personal jurisdiction over an out-of-state defendant.³⁰See Pennoyer v. Neff, 95 U.S. 714, 727 (1878). The Court has attributed this limitation to the Fourteenth Amendment’s Due Process Clause.³¹See, e.g., Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773, 1779 (2017) (“It has long been established that the Fourteenth Amendment limits the personal jurisdiction of state courts.”); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (“The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant.”).

     The Court’s language has occasionally also suggested that the personal jurisdictional limitation emanates out of the Constitution’s incorporation of international law. There are arguments that the ratification of the Constitution itself incorporated background principles of international law that put limits on extraterritorial assertions of personal jurisdiction. See Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1252 (2017) (“Personal jurisdiction . . . [is] a matter of general law—that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system and that continues to govern unusual corners of the system today.”); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217, 1220–21 (1992) (federal long-arm statutes may be limited by the Fifth Amendment and international law); Wendy Collins Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered, 62 Wash. L. Rev. 479, 499–500 (1987) (describing the Pennoyer Court’s consideration of the Fourteenth Amendment as “startling”). Indeed, the Court’s famous announcement of territorial limits on state jurisdiction in Pennoyer dealt with a case that predated the Fourteenth Amendment. See Burnham v. Superior Ct., 495 U.S. 604, 616–17 (1990) (plurality opinion) (noting that the Pennoyer Court’s “statement of the principle that the Fourteenth Amendment prohibits [the exercise of discretion] . . . set[] forth only as dictum”). It has variously described the limitation as a recognition of (i) a personal liberty interest enjoyed by defendants,³²See Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). and (ii) the limits of the sovereignty of a state beyond its borders.³³See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 883–84 (2011) (plurality opinion). The Court in Bristol-Myers again identified sovereignty and fairness as the keys to the Fourteenth Amendment calculus. See 564 U.S. at 1780. The Court elevated fairness as the more dominant factor, though it also noted that, “at times, th[e] federalism interest may be decisive.” Id.

Over time, the Court has identified a few ways by which a state can proceed with respect to claims against an out-of-state defendant. First, any defendant can consent to a court’s personal jurisdiction (or waive any objection to personal jurisdiction).³⁴See Ins. Corp. of Ireland, 456 U.S. at 703 (“Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived . . . . A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court.”). Second, under so-called “tag jurisdiction,” personal jurisdiction is proper over an out-of-state individual who is served with process while within the state in which the cause of action has been brought.³⁵See Burnham, 495 U.S. at 610–12 (plurality opion) (reaffirming Pennoyer v. Neff, 95 U.S. 714 (1878) on this point). But cf. Martinez v. Aero Caribbean, 764 F.3d 1062, 1069 (9th Cir. 2014) (asserting that Burnham does not apply to corporations). Third, and most importantly, the Supreme Court held in International Shoe Co. v. Washington³⁶Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). and its progeny that a state can (consistent with its long-arm statute) exercise personal jurisdiction over an out-of-state defendant where the defendant has sufficient “minimum contacts” with the forum state and the exercise of jurisdiction would not be unfair.³⁷See id. at 316–20. In Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113 (1987), the Court elucidated several factors to weigh in determining the extent of unfairness and inconvenience imposed by exertions of personal jurisdiction.

Over the years, the Court elucidated that “minimum contacts”-based personal jurisdiction came in two varieties: general jurisdiction and personal jurisdiction.³⁸See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & nn.8–9 (1984). General jurisdiction is personal jurisdiction that inheres notwithstanding any relationship (and even in the absence of any relationship) between the plaintiff’s claim and the defendant’s contacts with the forum.³⁹Id. at 414 n.9 (“When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant.”). In other words, it turns entirely on the defendant’s (substantial) contacts with the forum, not the nature of the plaintiff’s claim; it is “all-purpose” jurisdiction.⁴⁰Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). In contrast, specific jurisdiction is personal jurisdiction that inheres where the plaintiff’s claim arises out of the defendant’s contacts with the forum.⁴¹Helicopteros Nacionales, 466 U.S. at 414 n.8 (“[W]hen a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum, the State is exercising ‘specific jurisdiction’ over the defendant.”). It is personal jurisdiction that turns on “relationship among the defendant, the forum, and the litigation”;⁴²Shaffer v. Heitner, 433 U.S. 186, 204 (1977). it is “case-linked” jurisdiction.⁴³Goodyear, 564 U.S. at 919.

Before the last decade, with the Supreme Court having had little to say about general jurisdiction,⁴⁴See Nash, supra note 7, at 483–89 (cataloguing the Court’s very limited twentieth-century holdings on general jurisdiction). lower courts offered broad interpretations.⁴⁵See id. at 485–87. Lower courts variously considered a corporate defendant’s sales and physical presence (or a combination of the two, sometimes in addition to other factors) in assessing assertations of general jurisdiction.⁴⁶See id. at 485–86. In the end, though, the variants of the tests almost always resulted in the recognition of general jurisdiction for nationwide corporations in virtually every state and federal district.⁴⁷See id. at 486–87.

Then came the decisions in Goodyear Dunlop Tire Operations, S.A. v. Brown⁴⁸Goodyear, 564 U.S. 915. and Daimler AG v. Bauman,⁴⁹Daimler AG v. Bauman, 571 U.S. 117 (2014). where the Supreme Court narrowed the availability of general jurisdiction over a corporation essentially to its place of incorporation and principal place of business.⁵⁰See Goodyear, 564 U.S. at 924; Daimler, 571 U.S. at 137; accord BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558–59 (2017). The factors of fairness and convenience that otherwise enter into the personal jurisdictional calculus do not factor in here and cannot deprive a court of otherwise proper general jurisdiction. See Daimler, 571 U.S. at 139 n.20. The Court in Daimler specifically noted that the bases for general jurisdiction generated by the new test “afford plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims.”⁵¹Daimler, 571 U.S. at 137. But for nationwide corporations, the new test had the effect of greatly restricting the options plaintiffs previously enjoyed.⁵²See, e.g., Dodson, supra note 22, at 23–24.

The one remaining opening for more expansive general jurisdiction over multistate corporations is the possibility that a state can exact blanket consent to general jurisdiction in return for permission to conduct business in the state. The Court recently decided that such consent is sufficiently voluntary as to satisfy the Due Process Clause, though other questions may remain.⁵³See Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028 (2023). For discussion, see infra notes 247–251 and accompanying text. For discussion of the possibility that the decision in Mallory, which involves a domestic corporation consenting to general jurisdiction in a state forum, might not resolve definitively the propriety of the United States extracting consent to general jurisdiction from a foreign corporation in return for permission to conduct business in the United States, see infra notes 253–254 and accompanying text.

The Court has had much more to say about specific jurisdiction over the years, although without great success in describing its contours. Indeed, the Court has applied different tests to cases involving different types of legal claims.⁵⁴See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (products liability claims); Calder v. Jones, 465 U.S. 783 (1984) (defamation claims); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (contract claims). At its essence, however, the Court has explained that specific jurisdiction requires an out-of-state defendant to have “purposeful[ly] avail[ed]” itself of the forum state,⁵⁵Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (quoting Burger King, 471 U.S. at 475). and that the plaintiff’s claim arise out of the defendant’s contacts with the forum.⁵⁶Id. at 1025.

The Court’s reformulation of general jurisdiction has put more weight on specific jurisdiction: consider that, whereas many plaintiffs could easily have relied upon the lower courts’ broad construction of general jurisdiction to sue in many forums other than a defendant corporation’s place of incorporation or principal place of business, now plaintiffs wishing to sue in such forums must turn to specific jurisdiction.⁵⁷See Nash, supra note 7, at 500–01. In the 2017 case of Bristol-Myers Squibb Co. v. Superior Court,⁵⁸Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773 (2017). the Supreme Court highlighted how specific jurisdiction was not malleable enough to make up for the great extent to which general jurisdiction had been shrunk. The plaintiffs in the case claimed injury as a result of ingesting a drug manufactured by the defendant Bristol-Myers Squibb Company.⁵⁹Id. at 1778. Suit was brought in California state court.⁶⁰Id. There were over 600 plaintiffs (though the case was not brought as a class action), most of whom were not California residents, and did not purchase or ingest the drug in California.⁶¹Id. The California Supreme Court had upheld personal jurisdiction; it employed a “sliding scale approach to specific jurisdiction,”⁶²Bristol-Myers Squibb Co. v. Superior Ct., 377 P.3d 874, 889 (Cal. 2016), rev’d, 137 S. Ct. 1773 (2017). under which “the more wide ranging the defendant’s forum contacts, the more readily is shown a connection between the forum contacts and the claim.”⁶³Id. (quoting Vons Cos., Inc. v. Seabest Foods, Inc., 926 P.2d 1085, 1098 (Cal. 1996)). The Supreme Court rejected that approach, which it found “resemble[d] a loose and spurious form of general jurisdiction.”⁶⁴Bristol-Myers Squibb, 137 S. Ct. at 1781. Thus, while the California residents could proceed with the suit in California, the nonresidents could not.

All of what I have discussed to this point about the Court’s personal jurisdiction jurisprudence relates to personal jurisdiction over defendants. In some sense, that is not surprising. After all, to whatever extent personal jurisdiction over a plaintiff is required, the plaintiff in a typical case presumably consents to the jurisdiction of the court in which she files suit.⁶⁵For example, the Court in Adam v. Saenger, 303 U.S. 59 (1938), explained:

There is nothing in the Fourteenth Amendment to prevent a state from adopting a procedure by which a judgment in personam may be rendered in a cross-action against a plaintiff in its courts, upon service of process or of appropriate pleading upon his attorney of record. The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence. It is the price which the state may exact as the condition of opening its courts to the plaintiff.

Id. at 67–68. A plaintiff-side class action, however, raises a distinct concern, since members of the plaintiff class other than the named class representatives will not have affirmatively filed suit. In Phillips Petroleum Co. v. Shutts⁶⁶Phillips Petroleum Co., v. Shutts, 474 U.S. 797 (1985). —a class action brought against a corporation for nonpayment of royalties in the Kansas state courts⁶⁷See id. at 799–801. —the Supreme Court explained that the ordinary opt-out procedures associated with class actions provide a sufficient base on which to rest personal jurisdiction.⁶⁸It was the defendant who raised on appeal the issue of the propriety of personal jurisdiction over the non-class representatives. The Supreme Court allowed the defendant to make this argument on the ground that it was the defendant who might suffer injury if personal jurisdiction was subsequently found to be absent such that the non-class representative plaintiffs would not be bound by the court’s judgment. See id. at 805–06. The Court explained that its usual test for personal jurisdiction (as elucidated above) was designed for the purpose of “protect[ing] a defendant from the travail of defending in a distant forum, unless the defendant’s contacts with the forum make it just to force him to defend there.”⁶⁹Id. at 807.

However, the Court explained, the justifications for erecting a high barrier for personal jurisdiction over defendants do not translate to the setting of non-class representative plaintiffs, since “[t]he burdens placed by a State upon an absent class-action plaintiff are not of the same order or magnitude as those it places upon an absent defendant.”⁷⁰Id. at 808. A defendant hailed into an out-of-state forum faces the prospect of hiring counsel and traveling to defend itself (or else of suffering a default judgment), the possibility of liability for fees, and costs, and eventually the possibility of judgment being entered against it.⁷¹Id. In contrast, court procedures are solicitous of absent plaintiffs’ rights (for example, by requiring the class representative to act in the interests of the entire class, and by requiring court approval of any settlement).⁷²Id. at 808–10. And, ultimately, absent plaintiffs are highly unlikely to be liable for fees or costs, “need not hire counsel or appear,” and “are not subject to coercive or punitive remedies.”⁷³Id. at 810. Indeed, an adverse judgment will not typically bind an absent plaintiff to pay any damages; at most “a valid adverse judgment may extinguish any of the plaintiff’s claims which were litigated.”⁷⁴Id.

The Court concluded that the Fourteenth Amendment’s Due Process Clause affords absent class plaintiffs some “minimal procedural due process protection,”⁷⁵Id. at 811–12. See id. at 811 (“The Fourteenth Amendment does protect ‘persons,’ not ‘defendants,’ . . . so absent plaintiffs as well as absent defendants are entitled to some protection from the jurisdiction of a forum State which seeks to adjudicate their claims.”). but nowhere near as much as it affords defendants.⁷⁶Id. at 811. Specifically, the Court held that personal jurisdiction over the plaintiffs was proper so long as the plaintiffs “receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel,” and are “provided with an opportunity to remove himself from the class by executing and returning an “opt out” or “request for exclusion” form to the court.”⁷⁷Id. at 812. The Court also noted that “the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members.” Id.

It bears emphasis that the Phillips Petroleum case did not raise, nor did the Court there address, any question about the susceptibility of the defendant corporation to personal jurisdiction in the Kansas state courts.⁷⁸Diane P. Wood, Adjudicatory Jurisdiction and Class Actions, 62 Ind. L.J. 597, 613 (1987) (“Because no one had raised the point, the Supreme Court’s decision in Shutts paid no attention to the question why Phillips had to answer in Kansas for its policy about interest on suspense royalties.”); Bradt & Rave, supra note 18, at 1284 (“Phillips Petroleum made no argument that the Kansas court lacked jurisdiction over itself, even with respect to claims by plaintiffs with no connection to Kansas.”). Indeed, the Court has never considered the propriety of personal jurisdiction over an out-of-state corporate defendant with respect to claims brought under a class action belonging to non-class representatives.⁷⁹See Mussat v. IQVIA, Inc., 953 F.3d 441, 445 (7th Cir. 2020) (noting that the issue “has not been examined closely”).

A final note is appropriate as to the exercise of personal jurisdiction by the federal courts. The Fourteenth Amendment imposes no restriction on the federal courts; though the Supreme Court has never resolved the question definitively,⁸⁰The Court has repeatedly reserved judgment on the question. See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality opinion); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 102 n.5 (1987); Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 113 n* (1987) (plurality opinion). logic and precedent strongly suggest that the Fifth Amendment’s Due Process Clause⁸¹U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”). imposes analogous limits on the federal courts but with national contacts (rather than contacts with any state) the proper measure.⁸²Nash, supra note 7, at 522–43.

That said, subconstitutional law seems generally not to authorize jurisdiction based on national contacts. Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure is seen to limit the personal jurisdictional reach of the federal district courts to defendants who are “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”⁸³Fed. R. Civ. P. 4(k)(1)(A). Based on that rule, the common understanding is that federal courts are required to apply the same limitations as those that constrain the courts of the state in which it sits—i.e., the strictures of the Fourteenth Amendment and the governing long-arm statute.⁸⁴See Wright & Miller, supra note 29, § 1075 (“To satisfy Rule 4(k)(1)(A), jurisdiction in a federal district court must comply with state laws regarding the jurisdictional reach of that state’s courts. It also requires an inquiry into the federal question of whether that state’s courts could constitutionally exercise personal jurisdiction consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”); see also A. Benjamin Spencer, Substance, Procedure, and the Rules Enabling Act, 66 UCLA L. Rev. 654, 714–15 (2019) (arguing that while Rule 4 may run be inconsistent with the Rules Enabling Act in that they are jurisdictional, not procedural rules, the provisions limiting federal courts’ jurisdiction to state courts’ reach are valid since, because they “restrict the jurisdictional reach of federal district courts by limiting personal jurisdiction to a subset of the circumstances that the Fifth Amendment’s Due Process Clause would otherwise permit,” they do not alter substantive rights); Patrick Woolley, Rediscovering the Limited Role of the Federal Rules in Regulating Personal Jurisdiction, 56 Hous. L. Rev. 565, 588–633 (2019) (arguing that, in the absence of congressional legislation, federal courts are restricted to the jurisdictional reach of the courts of the state in which they sit). That said, some scholars have raised questions about the validity of Rule 4 in this regard. See Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 1743–66 (2020) (arguing that the federal courts should look to nationwide contacts and that constraints to the contrary in the Federal Rules are invalid); Leslie M. Kelleher, Amenability to Jurisdiction as a “Substantive Right”: The Invalidity of Rule 4(k) Under the Rules Enabling Act, 75 Ind. L.J. 1191, 1226 (2000) (arguing that Rule 4’s limitations are valid in diversity cases, but not federal question cases).

Rule 4(k) does include provisions for broader exercises of personal jurisdiction, including where Congress has authorized broader jurisdiction by statute,⁸⁵Fed. R. Civ. P. 4(k)(1)(C). and as to a federal claim where no state court would have personal jurisdiction.⁸⁶Id. 4(k)(2). These exceptions have proven to be narrow: congress has extended the federal courts’ personal jurisdictional reach under only a few statutes,⁸⁷See, e.g., 28 U.S.C. § 2361 (statutory interpleader); 15 U.S.C. §§ 77v(a), 78aa(b) (securities laws); 15 U.S.C. § 22 (antitrust laws); 29 U.S.C. § 1132(e)(2) (2012) (pension plan regulatory law). and it can be difficult to establish that no state court would have personal jurisdiction over a defendant. Moreover, neither of these exceptions applies in the setting of cases raising purely state-law claims.⁸⁸Rule 4 does allow more extensive assertions of personal jurisdiction in all cases—including diversity cases—as to “a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued.” Fed. R. Civ. P. 4(k)(1)(B).

II. ASSESSING THE STAKES

The Supreme Court has yet to rule definitively on whether examination of unnamed plaintiff class members’ claims is required for personal jurisdiction purposes, while lower courts have mostly declined to impose such a requirement. But what would the impact be if such an examination were required? The answer to this question is important, not least because, as we shall see, some who argue against the requirement emphasize—and sometimes overstate—the impact that the requirement would impose.

The constraint on personal jurisdiction in class actions has an impact on litigation in state court, and a related, but distinct, impact on litigation in federal court. In state court, the constraint on personal jurisdiction is constitutional.⁸⁹See supra notes 30–33 and accompanying text. Thus, absent consent, and leaving to the side the rare case where an entire plaintiff class can establish specific jurisdiction against the defendant, a multistate class action against a defendant can only take place in a state where general jurisdiction against the corporate defendant can be had.

In federal court, the limitation on personal jurisdiction is subconstitutional; it applies by virtue of Rule 4 of the Federal Rules of Civil Procedure.⁹⁰For discussion, see supra notes 79–88 and accompanying text. However, at least with respect to class actions raising only state-law claims, current law—insofar as it instructs federal district courts to adhere the limitations to which state courts of the state in which they sit are subject⁹¹See supra notes 83–84 and accompanying text. —should limit class actions against corporate defendants precisely as laid out above with respect to actions brought in state court.

Moving beyond the state court-federal court distinction, it is critical to appreciate how personal jurisdictional constraints have a greater impact where the defendant corporation is incorporated outside the United States, as opposed to inside the United States. Assuming an absence of consent, and assuming that (as will only rarely be the case) the entire plaintiff class cannot establish specific jurisdiction against the defendant in any one forum, a multistate class action against a defendant can proceed in a jurisdiction where general jurisdiction against the corporate defendant can be had. For a corporation incorporated outside the United States, this well may mean that there is no state in which a multistate class action can be maintained. After all, such a corporation’s place of incorporation is by assumption not any U.S. state or territory, and its principal place of business may be outside the United States as well. It bears noting, however, that this restriction applies equally to actions that join together numerous plaintiffs’ claims, and even to prototypical individual claim litigation.⁹²See Bradt & Rave, supra note 18, at 1255 n.16. But it is also worth noting that a foreign jurisdiction may not allow for a class action, even where there is proper personal jurisdiction as to all plaintiffs’ claims, whereas a state in the United States would.

In contrast, for a corporation incorporated in the United States, a class action can still be maintained in the state of the defendant’s place of incorporation or in the state of the defendant’s principal place of business.⁹³See Wood, supra note 78, at 615 (“For a multistate class action, it should not be difficult to find a named plaintiff from a state with valid general jurisdiction over the defendant.”). To be sure, some commentators highlight additional negative impacts that can apply in cases involving corporations that are incorporated in the United States. For example, personal jurisdiction constraints may frustrate the ability of a plaintiff to bring a single class action against two corporate defendants who are ‘at home’ in different states.⁹⁴See Bradt & Rave, supra note 18, at 1255 n.16; Wilf-Townsend, supra note 18, at 1620 (“[I]f two defendants are indispensable parties to a lawsuit and are not both subject to general jurisdiction in the same state, specific jurisdiction may be the only path forward for the suit to proceed.”). Once again, however, it bears noting that this restriction applies equally to cases consisting of numerous joined claims and even prototypical individual claim litigation.⁹⁵See Bradt & Rave, supra note 18, at 1255 n.16.

It bears emphasis that a case decided by the Supreme Court this past Term—Ford Motor Co. v. Montana Eighth Judicial District Court⁹⁶Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021). —may provide greater leeway for nationwide (or at least regional) plaintiff class actions based upon specific jurisdiction. Ford reversed the trend of Court cases constricting personal jurisdiction,⁹⁷See Patrick J. Borchers, Richard D. Freer & Thomas C. Arthur, Ford Motor Company v. Montana Eighth Judicial District Court: Lots of Questions, Some Answers, 71 Emory L.J. Online 1, 11 (2021) (“The Ford majority opinion reads like the ‘old era’ (pre-2011) general jurisdiction cases . . . .”). and in particular, in contrast with Bristol-Myers, took a more expansive view of specific jurisdiction.⁹⁸See id. at 7–12 (arguing that Ford is in tension with Bristol-Myers). It recognized the viability of specific jurisdiction in a state over a claim against Ford by a plaintiff injured in that Ford neither designed nor manufactured the automobile in that state.⁹⁹See 141 S. Ct. at 1023. The Court reasoned that Ford’s conduct in “systematically serv[ing] a market in [the state] for the very vehicles that the plaintiffs allege malfunctioned and injured them in th[e] State[]” was sufficient to justify the exercise of specific jurisdiction.¹⁰⁰Id. at 1028.

Even if the Ford decision leaves Bristol-Myers intact,¹⁰¹See Borchers, Freer & Arthur, supra note 97, at 10 (noting that, while the two cases seem in tension, “[o]ne should not assume that Ford overruled [Bristol-Myers] sub silentio”). it surely signals acceptance of broader assertions of specific jurisdiction. And class action plaintiffs, and their lawyers, may be able to take advantage of that rediscovered breadth in fashioning regional and nationwide class actions.¹⁰²See Bradt & Rave, supra note 18, at 1285 (acknowledging that “[t]here may be some cases where all of the conduct that causes the class members’ injuries nationwide occurred in a single state that is not the defendant’s ‘home’ under Goodyear and Daimler (perhaps a state where the defendant has its manufacturing operations or conducted critical research or clinical trials), and thus that state would have specific jurisdiction over all of the class members’ claims”).

Some commentators point to other effects resulting from the constraint of personal jurisdiction—effects that would apply to cases with domestic corporate defendants as well as foreign ones—but these effects are often exaggerated. For one thing, Professor Wilf-Townsend contends that some states “may lack a sufficient population base to justify class actions for a wide variety of small-value claims.”¹⁰³Wilf-Townsend, supra note 18, at 1656. This issue, however, is not as troubling as Professor Wilf-Townsend suggests. First it bears noting that some comparatively small states are home to a substantial number of business—Connecticut and Delaware, for example—and such states reasonably can be expected to host class actions based on general jurisdiction. Second, the fact remains that multistate (and indeed nationwide) class actions—including plaintiffs from these smaller states—can go forward in the jurisdiction(s) where the relevant defendant is subject to general jurisdiction. Thus, Professor Wilf-Townsend’s suggestion—that “a number of claims might simply never be brought to begin with,”¹⁰⁴Id.; see also id. at 1662. —is vastly overstated. To be sure, some states “will be unlikely to ever get a chance to adjudicate” a large class action,¹⁰⁵Id. at 1656. but these states may also be unlikely to adjudicate many cases involving claims brought under corporate law; it is hardly clear that personal jurisdiction doctrine should be fashioned so to empower state judiciaries.

Professor Wilf-Townsend also posits that residents of states that have insufficiently few in-state residents to form a viable class action “have only two hopes: (1) that their state will become the forum state in a multistate class action, enabling them to benefit from the economies of scale generated by including more class members; or (2) that another state will hear a class action in which they are included in the class definition.”¹⁰⁶Id. at 1662. But there is a third option: the residents can file a class action in one of the defendant’s “home” jurisdictions—with themselves as (some of) the class representatives. The situation, in other words, is not as hopeless as Professor Wilf-Townsend suggests.

Closer to the line is the argument advanced by Professors Andrew Bradt and Theodore Rave, and by Professor Wilf-Townsend, that the narrowing of personal jurisdiction empowers defendants to select a forum—by means of consenting to suit—in which a more favorable settlement can be had.¹⁰⁷See Bradt & Rave, supra note 18, at 1289–91; Wilf-Townsend, supra note 18, at 1663. In selecting a forum, the defendant is also selecting a lead counsel from that forum—one who is “willing to take the smallest sum for the largest class and then shop around for a state court willing to certify the class and approve the settlement (even if a federal court in its home state would not have).”¹⁰⁸Bradt & Rave, supra note 18, at 1289. As Professors Bradt and Rave explain, the constriction of personal jurisdiction “creates an asymmetry in opportunities for forum shopping that may come at the expense of absent class members.”¹⁰⁹Id. at 1290. Further augmenting the defendant’s power, the Class Action Fairness Act, which ordinarily provides a path to federal court for class actions, “does not permit absent class members to intervene and remove the case to federal court to short circuit this sort of settlement forum shopping.”¹¹⁰Id.

While this concern is a real one, the question arises whether the best remedy to a problem arising out of defendants having too wide a choice of forums is to afford a similar range of choices to plaintiffs and their attorneys by opening up jurisdiction in virtually all jurisdictions (at least with respect to national corporations), as ignoring unnamed class plaintiffs’ claims would do.¹¹¹To put matters in a slightly different way, there are some effects that may flow from the choice of a rule for personal jurisdiction that, to paraphrase Professor Dodson, “the law rightly denies . . . [as] a legitimate basis” to evaluate the rule. Dodson, supra note 22, at 13. Greatly increasing plaintiff forum choice should not in and of itself be a goal of personal jurisdiction, much as inordinately restricting plaintiff forum choice should not be. Indeed, it is not the constriction of personal jurisdiction (compared to what it was seen to be before) alone that creates the issue, but also the freedom of defendants to consent to jurisdiction as they see fit. One might think that a more measured, better tailored response would be to facilitate access to the federal courts and put in place closer judicial scrutiny of class settlements.¹¹²But cf. Elizabeth Chamblee Burch & Margaret S. Williams, Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, 107 Cornell L. Rev. 1835, 1889–97 (2022) (presenting evidence that plaintiffs in multidistrict litigation are not pleased with their judicial experiences).

To sum up, the rule that calls for examination of unnamed class plaintiffs’ claims in the personal jurisdiction calculus would be a constitutional requirement in state court, but not in federal court. And, while some of the effects of that rule could (in particular cases) have some bite in cases with defendant corporations that are incorporated in the United States, the effects will be felt most starkly in cases with defendant corporations that are incorporated outside the United States.¹¹³Professor Steinman also identifies as costs arising out of limits on personal jurisdiction in plaintiff class actions the fact that courts must determine the proper time (vis-à-vis class certification) to determine the propriety of jurisdiction, and that personal jurisdictional limits in state and federal court may differ. See Steinman, supra note 18, at 29–34, But Professor Steinman overstates the difficulties here: while Professor Steinman describes the timing issues as “bullets” to be “dodged,” id. at 29, they seem more aptly described as ancillary issues that can and will eventually be sorted out rather easily. And the need to treat state courts and federal courts differently is hardly novel.

III. AN INTERMEDIATE STEP: THE NEED FOR JURISDICTION OVER EACH PLAINTIFF’S CLAIM OUTSIDE CLASS ACTIONS

In this Part, I discuss a question that lies along the path to considering the need to examine unnamed class plaintiffs’ claims in determining the propriety of personal jurisdiction: the question of whether, in a state court case with claims by multiple named plaintiffs against the same defendant (i.e., not a class action), each plaintiff must establish personal jurisdiction independently. I assume here that the defendant has not consented to suit.¹¹⁴Even where the defendant consents to suit by one plaintiff, courts have held that the consent does not extend to other co-plaintiffs. See In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., No. 3:12-MD-2391, 2019 WL 1077291, at *2 (N.D. Ind. March 7, 2019) (“The plaintiffs view the Cuckler defendants’ concession in the Collier County cases as consent to be sued in a plaintiffs’ home state, whatever state that might be. The plaintiffs cite no authority for that argument, and I can’t imagine what rule of law any such authority might support.”).

Let us begin with two uncontroversial points. First, to the extent that a defendant is subject to a forum’s general jurisdiction, there is (assuming the state has authorized it) proper personal jurisdiction to bring any and all claims against that defendant. General jurisdiction is all-purpose jurisdiction, and so personal jurisdiction is proper regardless of the identity of the plaintiffs or the nature of their claims.¹¹⁵See supra notes 39–40 and accompanying text. (To be sure, the contours of general jurisdiction have changed over the years,¹¹⁶See supra notes 44–52 and accompanying text. but the legal conclusion remains intact once one takes into account the governing definition of general jurisdiction.)

Second, to the extent that a defendant is not subject to a forum’s general jurisdiction, then personal jurisdiction will not lie if there is no plaintiff who brings a claim that arises out or relates to that defendant’s contacts with the forum.¹¹⁷This point follows directly from the Court’s holdings in Goodyear and Daimler. See Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011); Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). In such a case, the defendant would be at most subject to specific jurisdiction in the forum, and if no plaintiff has a claim that arises out of or relates to the defendant’s contacts, then there is no claim that meets that specific jurisdiction’s case-linked requirement. (Again, the precise contours of specific jurisdiction may have shifted over the years,¹¹⁸See Dodson, supra note 22, at 24–28 (discussing the narrowing of specific jurisdiction by the Supreme Court). but the legal conclusion remains intact taking into account the governing definition of specific jurisdiction.) Thus, for example, in a products liability lawsuit, it seems likely that (absent the defendant’s consent) personal jurisdiction will be lacking in a suit by a plaintiff against a defendant in a forum in which neither the plaintiff nor the defendant manufacturer is “at home,” and in which the plaintiff did not suffer injury.¹¹⁹See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (defendant car manufacturers did not contest jurisdiction in Oklahoma as to products liability suit where plaintiffs, who were residents of one state in process of moving to another state, were injured in Oklahoma).

Next, let us remain with the setting where the defendant is subject at most to specific jurisdiction, and there are two plaintiffs who have joined their claims against the defendant. The first plaintiff’s claim arises out of or relates to the defendant’s forum contacts, but the second plaintiff’s claim does not. (Recalling our products liability suit example from just above, let us say that the first plaintiff is a resident of the forum state, bought the product there, and was injured there, while the second plaintiff resides, bought the product, and was injured, elsewhere.) There clearly would be personal jurisdiction for the first plaintiff to pursue her claim against the defendant, but what about the second plaintiff?

Before the Court’s decision in Bristol-Myers, there were some courts that evidently accepted claims by out-of-state plaintiffs against a defendant provided merely that an in-state plaintiff brought a properly joined claimed over which the court had specific jurisdiction.¹²⁰See Estate of Fox v. Johnson & Johnson, 539 S.W.3d 48, 51 (Mo. Ct. App. 2017) (“Missouri courts historically have exercised personal jurisdiction over defendants as to joined non-residents’ claims so long as jurisdiction exists as to the residents’ claims.”). For these courts, the Supreme Court’s decision in Bristol-Myers upended prior precedent on this point.

But for many courts this was not the case. These courts did require a separate showing of specific jurisdiction with respect to out-of-state plaintiffs under such circumstances.¹²¹See M.M. ex rel. Meyers v. GlaxoSmithKline LLC, 61 N.E.3d 1026, 1036–39 (Ill. App. Ct. 2016) (performing analysis to verify that “the out-of-state plaintiffs made a prima facie showing that Illinois has specific jurisdiction over defendant”), abrogated by Rios v. Bayer Corp., 178 N.E.3d 1088 (Ill. 2020); Bristol-Myers Squibb Co. v. Superior Ct., 377 P.3d 874, 888 (Cal. 2016) (after noting that “[t]he California plaintiffs’ claims . . . certainly arise from [the defendant]’s purposeful contacts with this state,” turning to nonresident plaintiffs’ claims, and concluding that “the nonresident plaintiffs’ claims bear a substantial connection to [the defendant]’s contacts in California”), rev’d, 137 S. Ct. 1773, 1781–84 (2017) (reversing the California Supreme Court not because it failed to require nonresident plaintiffs to show proper personal jurisdiction, but because the supreme court’s specific jurisdiction analysis was flawed). Admittedly, the standard for specific jurisdictionthat these courts employed was likely an outdated one. But for these courts, if the Bristol-Myers decision was a “bombshell,”¹²²Dodson, supra note 22, at 4–5. it was not because it introduced the requirement that each plaintiff needed to establish proper personal jurisdiction with respect to her claims against the defendant,¹²³See supra note 121. See Wood, supra note 78, at 617 (suggesting that “simple aggregation of claims” should not be enough to extend an in-state plaintiff’s specific jurisdiction to out-of-state plaintiffs’ claims against the same defendant). but rather that the case narrowed the scope of specific jurisdiction (and especially so in the wake of earlier cases vastly narrowing the scope of general jurisdiction).¹²⁴See id.; Dodson, supra note 22, at 4.

     Not everyone would agree even that the Supreme Court’s rejection of the California courts’ interpretation of specific jurisdiction was surprising. For example, in the wake of the California Court of Appeals’ decision in Bristol-Myers (but before the state supreme court or U.S. Supreme Court had taken any action), Linda Silberman wrote: “Although I am sympathetic to an expanded role for specific jurisdiction . . . , the approach of the California Court of Appeals to specific jurisdiction in Bristol-Meyers”—which the state supreme court followed—“appears to reintroduce general jurisdiction by another name.” Linda J. Silberman, The End of Another Era: Reflections on Daimler and Its Implications for Federal Jurisdiction in the United States, 19 Lewis & Clark L. Rev. 675, 687 (2015).

Whatever one’s view of the law before Bristol-Myers, it seems clear that the case requires each named plaintiff must establish personal jurisdiction with respect to her own claims against the defendant. Thus, the mere fact that one plaintiff can establish proper specific jurisdiction with respect to his claim against the defendant—perhaps because that plaintiff was injured in the state in which suit has been brought—is of no avail to a second plaintiff who cannot establish independent specific jurisdiction as to her claim.

Pendent personal jurisdiction seems to be the only argument that one can make in favor of the extension of one plaintiff’s successful showing of personal jurisdiction to justify a court’s personal jurisdiction as to another plaintiff’s claim against the same defendant. As its name suggests, pendent personal jurisdiction is personal jurisdiction as to one claim that is based solely (that is, because independent personal jurisdiction as to that claim does not exist) because it is closely related to another claim as to which an independent basis for personal jurisdiction does exist.¹²⁵See Wright & Miller, supra note 29, § 1069.7; 1 Robert L. Haig, Business and Commercial Litigation in Federal Courts § 2:28 (5th ed. 2021).

But, for three reasons, pendent personal jurisdiction is not availing. First, pendent personal jurisdiction has been invoked almost exclusively by federal courts. But the limitation of the personal jurisdictional reach of federal courts to state borders is not constitutional.¹²⁶See Wright & Miller, supra note 29, § 1069.7; Louis J. Capozzi II, Relationship Problems: Pendent Personal Jurisdiction after Bristol-Myers Squibb, 11 Drexel L. Rev. 215, 223–31 (2018). Thus—leaving to the side subconstitutional issues¹²⁷See Wright & Miller, supra note 29, § 1069.7 (“A serious jurisdictional question is raised when a plaintiff [in federal court] brings a state claim together with such a federal claim but the defendant is both beyond the reach of the forum state’s long-arm statute for purposes of the state claim and is not subject to general jurisdiction in the forum state.”); Capozzi, supra note 126, at 259–61 (discussing the consistency of pendent personal jurisdiction with state long-arm statutes). and assuming that the Fifth Amendment’s Due Process Clause is satisfied¹²⁸See supra notes 80–82 and accompanying text. —there may indeed be no constitutional problem with extending pendent personal jurisdiction. In contrast, the extension by a state court of pendent personal jurisdiction to a claim necessarily implicates, and must satisfy, the Fourteenth Amendment’ strictures.

Second, in order for pendent personal jurisdiction to be of value in the context we are discussing, it would have to provide pendent personal jurisdiction as to claims brought by a different plaintiff than the claim that enjoys an independent basis for personal jurisdiction; in other words, it would have to be “pendent party personal jurisdiction.”¹²⁹See Capozzi, supra note 126, at 220. In contrast, the form of pendent personal jurisdiction that federal courts almost always invoke is “pendent claim personal jurisdiction”—that is, pendent personal jurisdiction that applies to a claim brought by a plaintiff based on a second claim that enjoys an independent basis for personal jurisdiction that is brought by the same plaintiff.¹³⁰See id. at 241 (“No scholars or courts have yet claimed that a federal statute or rule authorizes pendent party personal jurisdiction . . . .”); see also id. at 219, 239.

The monikers “pendent claim personal jurisdiction” and “pendent party personal jurisdiction” are reminiscent of “pendent claim jurisdiction” and “pendent party jurisdiction”¹³¹See Finley v. United States, 490 U.S. 545, 556 (1989). —both of which are now subsumed within the grant of supplemental jurisdiction under 28 U.S.C. § 1367¹³²28 U.S.C. § 1367. —on the federal subject matter jurisdiction side of the ledger. Before section 1367’s advent, the Supreme Court highlighted the extent to which the exercise of pendent party jurisdiction is more extreme farther than pendent claim jurisdiction.¹³³See Aldinger v. Howard, 427 U.S. 1, 18 (1976) (“If the new party sought to be joined is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state law claim.”); Finley, 490 U.S. at 556 (while reading jurisdictional statute not to grant pendent party jurisdiction, also noting that “[w]hatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be changed by Congress”).

To be sure, the Court never seriously questioned the constitutionality of pendent party jurisdiction;¹³⁴See Finley, 490 U.S. at 549 (“We may assume, without deciding, that the constitutional criterion for pendent party jurisdiction is analogous to the constitutional criterion for pendent claim jurisdiction . . . .”); id. at 556 (while reading jurisdictional statute not to grant pendent party jurisdiction, also noting that “[w]hatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be changed by Congress”). indeed, section 1367 now expressly authorizes—in the subject-matter context—federal supplemental party jurisdiction in some instances.¹³⁵See supra notes 131–132 and accompanying text. But the Supreme Court had decades earlier—in United Mine Workers of America v. Gibbs—made clear the propriety of pendent subject matter jurisdiction.¹³⁶United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). In contrast, as I have noted just above, there is no reason to believe that state court assertions even of pendent claim personal jurisdiction are constitutional, let alone assertions of pendent party personal jurisdiction.¹³⁷It bears emphasis that pendent party (subject-matter) jurisdiction and pendent party personal jurisdiction are creatures of, and should accordingly be judged by reference to, entirely distinct constitutional provisions. Supplemental subject-matter jurisdiction results from an interpretation of the word “case[]” in Article III. See id. at 725. In contrast, personal jurisdictional limitations arise out the Fourteenth Amendment’s Due Process Clause. See supra notes 30–33 and accompanying text.

Third, to whatever extent one could argue that pendent party personal jurisdiction had any constitutional validity before Bristol-Myers, that decision seems to bury the notion that pendent party personal jurisdiction is constitutional. It is true that the Bristol-Myers Court did not discuss pendent party personal jurisdiction. But it also is clear that pendent party personal jurisdiction would have offered a path for the Court to reach the opposite holding. Thus, the reasoning of and holding in Bristol-Myers are plainly inconsistent with pendent party personal jurisdiction.¹³⁸See Capozzi, supra note 126, at 274–82.

With all of this said, one Supreme Court case—long predating Bristol-Myers, and distinguished, but not overruled, by that case¹³⁹See Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773, 1782 (2017); infra text accompanying note 148. —may imply some support for pendent party person jurisdiction.¹⁴⁰See Bristol-Myers Squibb, 137 S. Ct. at 1788 (Sotomayor, J., dissenting). That case is Keeton v. Hustler Magazine, Inc.¹⁴¹Keeton v. Hustler Mag., Inc., 465 U.S. 770 (1984). Keetoninvolved a defamation suit brought by a New York resident against a magazine in New Hampshire.¹⁴²Id. at 772. The plaintiff had virtually no contacts with New Hampshire,¹⁴³Id. (noting the plaintiff’s “only connection with New Hampshire is the circulation there of copies of a magazine that she assists in producing”). and it was rather clear that she brought suit there simply because, unlike other states, that state had a forgiving statute of limitations that did not preclude the plaintiff’s suit.¹⁴⁴See id. at 773, 779–80. The Supreme Court upheld the New Hampshire courts’ exercise of personal jurisdiction in spite of that.¹⁴⁵See id. at 773–81.

For our purposes, the salient point is that New Hampshire would allow the plaintiff to collect damages not just for the effects of the defamation in New Hampshire—that is, not just for the harm she suffered in New Hampshire—but for the harm the defamation caused nationwide.¹⁴⁶See id. at 773. The defendant argued that personal jurisdiction should not extend to the plaintiff’s claim beyond damages suffered in-state, but the Court ruled otherwise.¹⁴⁷See id. at 776–78.

There are two ways to view the Keeton. One interpretation sees the case as straightforward and of little value to the argument that unnamed class representatives can rely on a court’s personal jurisdiction over the named representative’s claim. The other sees the case as broadly facilitating aggregation of claims, such that it bolsters the argument in the class action context of relying on the court’s jurisdiction over the named representative’s claim.

On one hand, the New Hampshire courts’ jurisdiction to (potentially) award nationwide damages is unremarkable. If an automobile accident somehow occurred directly on a border between two states, we would think it unremarkable for an injured driver to sue for all the damages she suffered in a single lawsuit filed in one state; even if the damages could somehow be apportioned between the two states, one would hardly expect her to file two separate lawsuits. The “single publication rule” is an instantiation of this point.

On this understanding, the Court’s approval of personal jurisdiction against to defendant for the plaintiffs’ damages in multiple states is hardly surprising, and it certainly provides no support for the notion of a court exerting personal jurisdiction over unnamed class members’ claims against a defendant. This understanding of Keeton also squares with the Bristol-Myers Court’s description of Keeton as “concern[ing] jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as in [Bristol-Myers itself], jurisdiction to entertain claims involving no in-state injury and no injury to residents of the forum State.”¹⁴⁸Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773, 1782 (2017).

On the other hand, the Court in Keeton used language suggesting a closer jurisdictional call and that the “single publication rule” effects an aggregation of nationwide claims. The Court noted that the “single publication rule” (i) ”reduces the potential serious drain of libel cases on judicial resources,” (ii) “serves to protect defendants from harassment resulting from multiple suits,” and (iii) furthers each state’s “interest in cooperating with other States.”¹⁴⁹Keeton, 465 U.S. at 777–78. These points all sound in the language of considerations of fairness and economy, language that well could apply broadly in many settings of claim aggregation, including aggregation of claims against additional parties.

Though the call is far from clear, there are strong reasons to prefer the first interpretation of Keeton over the second. For one thing, to the extent that the Keeton opinion purports to offer a general assessment of aggregation of claims, its emphasis on interstate federalism to the exclusion of the defendant’s liberty interests seems dated in light of the Court’s more recent emphasis on the latter.¹⁵⁰The Court in recent years has put greater emphasis on litigant’s liberty interests than on concerns of interstate federalism. See supra note 33. Still, Keeton itself was decided shortly after Insurance. Co. of Ireland v. Compagnie des Bauxites, 456 U.S. 694 (1982), which had purported to banish interstate federalism altogether. There, the Court had asserted: “The restriction on state sovereign power . . . must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement, and the Clause itself makes no mention of federalism concerns.” Id. at n.10. For another, it does seem that the aggregation of identical claims brought by a single plaintiff based on damages in multiple states is less likely to inconvenience the defendant than the aggregation of claims by multiple plaintiffs based on damages in multiple states; the aggregation of multiple plaintiffs—even if those plaintiffs are technically ‘unnamed class members’—serves to add another dimension to the aggregation.¹⁵¹See supra note 148 and accompanying text. In the end, especially after Bristol-Myers, the case for pendent party personal jurisdiction in state courts is a tenuous one.

IV. ASSESSING THE NECESSITY OF UNNAMED PLAINTIFF CLASS MEMBERS’ PERSONAL JURISDICTION

We come presently to the crux of the matter: whether plaintiffs other than class representatives in a class action need to have independent specific jurisdiction against a defendant. My focus here is on jurisdiction in state court because personal jurisdiction in state court is subject to constitutional state-based limits;¹⁵²While conceding that, “where the Constitution commands a result, lesser authority that commands a contrary result is overridden,” Professor Wilf-Townsend argues that the case law defining due process exceptions that are afforded to class actions are not instances of Rule 23 overriding the Constitution, but are instead examples of courts defining the scope of a litigant’s due process rights in the specific context of group representative litigation.” Wilf-Townsend, supra note 18, at 1626. Professor Wilf-Townsend relies heavily on statements by the Supreme Court in Hansberry v. Lee, 311 U.S. 32, 40–41 (1940), to the effect that courts could bind nonparties to judgments rendered in “a ‘class’ or ‘representative’ suit.”

     This reliance is misplaced for three reasons. First, since the Court in Hansberry ultimately ruled that the nonparties were not bound, see id. at 45–46, the statements on which Professor Wilf-Townsend relies were dicta. Second, Professor Wilf-Townsend’s argument conflates the question personal jurisdiction with the question of whether a nonparty otherwise falling within the court’s personal jurisdiction reach can be bound to a prior judgment. There is little question but that representative class action can bind nonparties; indeed, that is the sine qua non of class action procedure. But the fact that a procedural device can bind nonparties does not mean that the court system thereby can bind nonparties who lie beyond the court’s reach. Third, and relatedly, Professor Wilf-Townsend’s interpretation of Hansberry would seem to impose no limits on a court’s freedom to bind out-of-state nonparties to in-state judgments, a result that seems clearly contrary to existing doctrine. By way of example, Professor Wilf-Townsend’s approach would seem to validate an effort by a federal court exercising the full national personal jurisdiction reach authorized by the Fifth Amendment, see supra notes 80–82 and accompanying text, to use a class action to bind nonparty residents of the European Union to a judgment; yet, such an effort would almost certainly be unconstitutional. while federal district courts are generally constrained by (subconstitutional) rule to the personal jurisdictional limits of the state in which they sit,¹⁵³See supra notes 83–84 and accompanying text. the constitutional limit of personal jurisdiction in federal court is based instead upon national territorial limits.¹⁵⁴A few commentators argue in favor of state power to exercise personal jurisdiction based not upon the state’s boundaries, but upon the national boundaries of the United States. See Ronan E. Degnan & Mary Kay Kane, The Exercise of Jurisdiction Over and Enforcement of Judgments Against Alien Defendants, 39 Hastings L.J. 799, 816–17 (1988); William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 Mich. L. Rev. 1205, 1208 (2018). But see Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509, 543–55 (2019) (rejecting arguments in favor of congressional power to allow state courts to exercise personal jurisdiction based on U.S. national boundaries).

A. The Constitutional Requirement of Personal Jurisdiction as to Unnamed Class Members’ State-Court Claims

The previous Part explained how the Court’s decision in Bristol-Myers confirmed what most state courts already understood: that as a matter of constitutional law a state court must have proper personal jurisdiction as to the claims of each named plaintiff in a case. The question then arises whether there is any reason that the same requirement ought not to apply to the claims of unnamed plaintiffs in class actions filed in the state courts. The answer must be that the same requirement applies,¹⁵⁵See Bradt & Rave, supra note 18, at 1288 (“The upshot . . . is that nearly all nationwide or multistate class actions will end up in federal court in the defendant’s home state or states where it is subject to general jurisdiction (unless the defendant has engaged in conduct directed nationwide in another state or consents to personal jurisdiction elsewhere).”); see also id. at 1285 (acknowledging that “[t]here may be some cases where all of the conduct that causes the class members’ injuries nationwide occurred in a single state that is not the defendant’s ‘home’ under Goodyear and Daimler (perhaps a state where the defendant has its manufacturing operations or conducted critical research or clinical trials), and thus that state would have specific jurisdiction over all of the class members’ claims,” but that, “except in these sorts of circumstances, a multistate or nationwide class action may only be maintained in a state that can exercise general jurisdiction over the defendant—or in a state where the defendant consents”). The Court’s recent opinion in Ford Motor Co. v. Montana Eighth Judicial District, 141 S. Ct. 1017 (2021), may expand the range of cases in which the latter circumstance might pertain. unless either (i) personal jurisdiction as to unnamed class members’ claims can be justified by virtue of the class representative’s claim (in a way that does not occur in the non-class aggregation context), or (ii) personal jurisdiction as to unnamed class members’ claims is simply irrelevant, that is, the unnamed class members do not matter for purposes of determining the propriety of personal jurisdiction over the defendant. Courts and commentators have offered a few arguments as to why at least one of these exceptions should obtain. I address, and refute, those arguments in the next Subpart.

B. The Unavailing Arguments Against the Requirement

1. Arguments Grounded in Supreme Court Precedent

An initial argument in favor of ignoring personal jurisdiction over unnamed class members’ claims rests on the notion that the Supreme Court has heard appeals in state-law class actions brought against corporate defendants outside their “home” jurisdictions, and yet not commented negatively (or indeed at all) on the personal jurisdictional aspect of the cases. Writing for the Seventh Circuit panel in Mussat v. IQVIA, Inc., Judge Wood asserted that “[t]he Supreme Court has regularly entertained cases involving nationwide classes where the plaintiff relied on specific, rather than general, personal jurisdiction in the trial court, without any comment about [any] supposed jurisdictional problem.”¹⁵⁶Mussat v. IQVIA, Inc., 953 F.3d 441, 445 (7th Cir. 2020). In response to the argument “that class actions have always required minimum contacts between all class members and the forum,” Judge Wood stated that “[d]ecades of case law show that this has not been the practice of the federal courts.”¹⁵⁷Id. Judge Wood then argued that the Court’s decision in Bristol-Myers—which did not involve a class action—did nothing to upset that supposed status quo.¹⁵⁸See id. at 445–47. In effect, the argument seems to be that the Court has effectively ratified the status quo exercise of personal jurisdiction over unnamed plaintiff class members’ claims (without any need to make a showing thereof) that was prevalent before Bristol-Myers.¹⁵⁹For example, in the context of determining whether a statutory requirement is jurisdictional, the Court has explained that it will continue to consider a requirement as jurisdictional where “a long line of this Court’s decisions is left undisturbed by Congress.” Union Pac. R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 82 (2009). However, the Court has also held such ratification to be unavailable where “no such ‘long line’ of authority exists” Boechler, P.C. v. Comm’r of Internal Revenue, 142 S. Ct. 1493, 1500 (2022) (quoting Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019)). That, as we shall see, is the case here. Moreover, the cases do not clearly stand for the proposition for which the Seventh Circuit’s opinion cites them. Finally, unlike the context of determining whether a statutory requirement is jurisdictional, Congress has little opportunity to disturb the Court’s personal jurisdiction decisions, at least as they apply to the state courts.

The problem here is that Judge Wood’s argument rests on a flawed presentation of the status quo. On Judge Wood’s account, the Supreme Court and lower courts “regularly” endorsed class actions grounded on specific jurisdiction as to the named class plaintiffs and without regard to the propriety of personal jurisdiction of the unnamed class plaintiffs. In fact, under the circumstances, it is farmore likely that courts saw at least many of these cases as resting on general, not specific, jurisdiction, or—more likely—as cases where the defendant consented to personal jurisdiction as to the class’s claims.

To see this, consider the two cases¹⁶⁰With a “see also” signal, Judge Wood’s opinion also cited to the Supreme Court’s opinion in Califano v. Yamasaki, 442 U.S. 682 (1979). But Yamasaki was a class action brought under the federal courts’ federal question jurisdiction, see id. at 687–88, and thus was only subject to Fourteenth Amendment limitations by virtue of subconstitutional rule, see supra notes 83–84 and accompanying text. And, indeed, the Seventh Circuit cited Yamasaki for the proposition—grounded in subconstitutional law—that “[n]othing in Rule 23 . . . limits the geographical scope of a class action that is brought in conformity with that Rule.” Mussat v. IQVIA, Inc., 953 F.3d 441, 445 (7th Cir. 2020) (quoting Yamasaki, 442 U.S. at 702). that Judge Wood points to as support for the thesis that the Supreme Court “regularly” entertained multistate class actions resting specific jurisdiction over an out-of-state corporate defendant: Phillips Petroleum v. Shutts¹⁶¹Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). and Keeton v. Hustler Magazine, Inc.¹⁶²Keeton v. Hustler Mag., Inc., 465 U.S. 770 (1984). Both cases were decided before Bristol-Myers and, more importantly, both were decided before the Court upended the lower courts’ understanding of general jurisdiction and both involved corporations of national scope. Thus, while Judge Wood characterizes these cases as having rested on “specific jurisdiction” over the defendant, it is far more likely that the defendant (and indeed all the parties and the Courts) assumed that general jurisdiction was properly invoked.¹⁶³See Bradt & Rave, supra note 18, at 1284 (“Likely because they were operating under the more expansive understanding of general jurisdiction before Goodyear, no one involved [in Shutts] seemed to question the court’s jurisdiction over the defendant . . . . Indeed, it would have been exceedingly odd for Phillips Petroleum to have made the derivative challenge to the Kansas court’s personal jurisdiction over the absent class members if personal jurisdiction over itself was seriously questioned.”) (footnote omitted).

     To be sure, Judge Wood, in an article as an academic before her appointment to the bench, presciently anticipated the Court’s turn two decades later. See Wood, supra note 78, at 614–15 (“General jurisdiction . . . should not be found in every state where a defendant has a significant amount of business. If general jurisdiction were confined to those few places that can legitimately be viewed as an individual’s or corporation’s base of operations, the allocation of judicial business among the states would be accomplished more efficiently and more fairly, both to the states in question and, ultimately, to the litigants.”). But, in that same article, Judge Wood conceded that “most people have assumed that Shutts involved general jurisdiction over Phillips.” Id. at 616.

To whatever extent any Justices might have questioned the propriety of general jurisdiction had the issue been raised, objections to personal jurisdiction are waived if not raised upon a party’s appearance in the case.¹⁶⁴See supra note 34 and accompanying text; Wilf-Townsend, supra note 18, at 1631 (“Shutts does not speak definitively either way as to what due process requires with respect to defendants’ rights, because its exceptions to the norms of minimum contacts for absent class members did not explicitly include a consideration of the minimum contacts test when defendants’ due process rights are invoked.”). And the fact is that personal jurisdiction over the defendant was not raised in either of the cases cited by the Seventh Circuit. Thus, even if there were a question about personal jurisdiction over the defendant with respect to the unnamed class members’ claims and even were the Court otherwise inclined to wade into the issue, the fact that the issue was not pursued would leave the courts with proper jurisdiction. As such, the Court’s failure to address the issue should in no way be seen to endorse any resolution of it.¹⁶⁵See Steinman, supra note 18, at 1235–36; see also Stone v. Powell, 428 U.S. 465, 481 n.15 (1976) (“[O]nly in the most exceptional cases will we consider issues not raised in the [certiorari] petition.”).

The same analysis and conclusion would apply to lower court cases as well. The most likely story in class action cases involving multistate corporations is that litigants and judges would have expected general jurisdiction to apply. Furthermore, and leaving to the side judges’ speculation as to the propriety of general or specific jurisdiction over the defendant, unless the defendant raised an objection to personal jurisdiction, judges would have considered the issue waived and not given it a second thought.

Professor Steinman offers a more nuanced argument as to why precedent should hold up. But his argument is marred by an unduly constrained view of precedent, and also because the premise on which it rests is faulty. Professor Steinman echoes Judge Wood’s argument, arguing that “[i]t is not surprising . . . that courts wrestling with this challenging doctrinal question would be swayed by the fact that, for decades, the personal-jurisdiction dogs did not bark.”¹⁶⁶Steinman, supra note 18, at 1236. In other words, he argues that the law was so settled on the issue before Bristol-Myers that we can understand, and indeed, expect, lower courts to continue to adhere to the preexisting law even in Bristol-Myers’ wake, especially given that the case does not speak directly to the point at issue.

The first problem with Professor Steinman’s argument is that it assumes that lower courts should abide by existing understandings of the law unless and until a higher court squarely and clearly changes the status quo. As Professor Steinman puts it, lower courts can follow precedent by “looking broadly at past practice and seeking consistency with the general way things are done.”¹⁶⁷Id. at 1235. But that is hardly the only model for lower courts’ obligation to follow binding precedent; nor is it clearly the correct one. Other scholars have contrasted passive and active approaches that lower courts can take with respect to superior courts and their precedents. Professor Evan Caminker offers a “precedent model” under which lower court judges should “‘decide cases . . . based on their best current understanding of the [applicable] law.’”¹⁶⁸Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 9 (1994) (quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991) (plurality opinion)). He contrasts the precedent model with a “proxy model” that calls for an inferior court to “apply[] the dispositional rule that the superior court . . . predictably would embrace.”¹⁶⁹Id. at 16. Professor Caminker further explains that either model may be normatively appropriate depending on the circumstances.¹⁷⁰See id. at 66–74.

Along somewhat similar lines, Professor Michael Dorf describes lower courts as following an “execution model” when they “execute the law as found in already decided cases, but [do] not . . . craft novel interpretations.”¹⁷¹Michael C. Dorf, Prediction and the Rule of Law, 42 UCLA L. Rev. 651, 664 (1995). Professor Dorf propounds two models that contrast with the execution model—an elaboration model, under which a lower court judge decides a case by “drawing upon a range of arguments that go well beyond settled doctrine strictly construed,”¹⁷²Id. at 665. and a prediction model, under which “the lower court judge strives . . . to predict what a majority of the relevant higher court would do.”¹⁷³Id. at 663. Professor Dorf argues that the prediction model is attractive from a practical perspective.¹⁷⁴See id. at 671–79.

     Although his analysis is limited to the context of federal courts applying state law under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), Professor Bradford Clark offers two contrasting models. Professor Clark propounds a “static approach,” under which the federal courts “refrain from making the significant policy choices necessary both to resolve . . . indeterminacies and to recognize a novel claim or defense,” Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459, 1536–37 (1997). In contrast, Professor Clark describes a predictive approach, under which “the federal court “attempts to forecast the development of state law by asking what rule of decision the state’s highest court is likely to adopt in the future,” Clark, supra, at 1497. Professor Clark notes that “[a] potential difficulty with the static approach . . . is that it works best in the context of a well-defined and relatively stable body of state law,” when, “[i]n reality, neither characteristic is always present.” Id. at 1464.

Professor Steinman’s argument relies upon a single model of precedent, without any explanation of why that particular model is appropriate in the context at hand. To be sure, it is conceivable that Professor Steinman’s assessment may be somewhat accurate as a description of what the lower courts in fact have done and are doing. But it is not an argument that the approach he suggests will converge on the correct doctrinal result.

The second problem with Professor Steinman’s argument is that it rests on a faulty premise about the status quo: much in the same way that the status quo was not what Judge Wood assumes it was, it is also not what Professor Steinman assumes it was. Professor Steinman’s analogy of the “personal-jurisdiction dogs” not barking assumes implicitly that (i) courts uniformly accepted the irrelevance of unnamed class plaintiffs’ claims in determining the propriety of personal jurisdiction over the defendant, and (ii) courts would vary in their approach only if an intervening Supreme Court decision altered that uniform preexisting understanding. But that uniform (or largely uniform) preexisting understanding was not that unnamed class plaintiffs’ claims in determining the propriety of personal jurisdiction over the defendant were irrelevant; rather, it was that general jurisdiction provided jurisdiction in the bulk of these cases, such that there was in fact personal jurisdiction as the unnamed class plaintiffs’ claims. And Bristol-Myers did not affect that result; Goodyear and Daimler did.¹⁷⁵This reasoning also rebuffs the argument made by some courts that the disclaimer of grand effect by the majority opinion in Bristol-Myers—that the Court saw the case as involving merely a “straightforward application . . . of settled principles of personal jurisdiction,” 137 S. Ct. at 1783—means that that case did not “upend[] years of class action practice sub silentio.” Morgan v. U.S. XPress, Inc., No. 17-CV-00085, 2018 WL 3580775, at *3 (W.D. Va. July 25, 2018). If the prior practice was indeed to consider unnamed plaintiffs’ claims (at least where an objection to personal jurisdiction was raised), or if at least the prior practice was mixed on the point, see supra notes 120–24 and accompanying text, then Bristol-Myers should not be seen to have jettisoned the notion of examining unnamed plaintiff class members’ claims. To put it another way, the decisions in Goodyear and Daimler have put most lower courts—especially state courts—and litigants litigating class actions before those courts in a jurisdiction position they did not anticipate.¹⁷⁶Professor Marcus and Ostrander make a similar argument:

Personal jurisdiction in the class action’s modern era has always depended on the relationship between the named plaintiff’s claim and the defendant’s forum contacts. In light of this history, unbroken until 2017, defendants can scarcely claim that ‘traditional notions of fair play and substantial justice,’ long dormant, suddenly awoke to require that each class member’s claim measure up by the jurisdictional metric.

Marcus & Ostrander supra note 18, at 1547. But, as discussed in the text, it is wrong to say that personal jurisdiction “has always depended” solely on the named plaintiff’s claim; instead, the issue simply did not commonly arise. And, when it did, many courts did consider unnamed plaintiffs’ claims as well. To borrow Professor Steinman’s language, the jurisdictional dogs should have started barking once they began to witness legal settings they had not seen before.¹⁷⁷Professor Steinman’s use of the phrase, “the personal-jurisdiction dogs did not bark,” is presumably a reference to Sir Arthur Conan Doyle’s story, The Adventure of Silver Blaze (1892). There, the great detective Sherlock Holmes deduced that the abduction of a racehorse had been an inside job from the fact that a guard dog did not bark when the horse was taken. Professor Steinman seems to use the phrase in the context of personal jurisdiction to mean that courts have had no reason to think that the rules governing jurisdiction have changed over the years. The problem with Professor Steinman’s analogy is that, in the story, there was no other explanation for the dog’s failure to bark other than that the abductor was someone well known to the dog. In contrast, in the context of personal jurisdiction, as I have discussed in the text, there has been clear intervening Supreme Court precedent—to wit, the Goodyear and Daimler cases—that should be enough to alert courts to the fact that personal jurisdiction might not lie. To return to The Adventure of Silver Blaze, Holmes’ logic would have been faulty had there been some other explanation for the dog’s failure to bark—for example, had the dog been drugged (as in fact had one of the stable lads in the actual story). So, too, here.

Professor Wilf-Townsend sets out a longer, older line of Supreme Court precedent to support a broad argument that courts’ personal jurisdictional reach can extend beyond state borders in aggregate litigation. However, the cases that lay the groundwork for Professor Wilf-Townsend’s claim—mostly cases that predate the International Shoe regime for personal jurisdiction—do not support the weight he puts on them. This is because there would under current law be personal jurisdiction in the scenarios presented under the cases; moreover, many of the cases are cases that originated in federal court, meaning that the restrictions related to state boundaries would have been subconstitutional, making overcoming such restrictions unremarkable.

The Court’s 1853 decision in Smith v. Swormstedt¹⁷⁸Smith v. Swormstedt, 57 U.S. 288 (1853). is in many ways the linchpin of Professor Wilf-Townsend’s argument. There, ministers of a church fragmenting over the issue of slavery disputed the proper distribution of church fund.¹⁷⁹Id. at 298–302. The Supreme Court found that the lower federal court could render a binding disposition, notwithstanding the fact that the many of the parties lay beyond the borders of the state in which the federal court sat.¹⁸⁰Id. at 309. But the church fund in question was created under Ohio law and the funds’ agent was in Ohio, where the federal court was located.¹⁸¹Id. at 298. Thus, viewed through a modern lens, there would be general jurisdiction in Ohio; that being the case, the existence of personal jurisdiction as to the unnamed plaintiffs’ claims is hardly surprising.

Moreover, the fact that the lower court was a federal court makes the existence of personal jurisdiction even less remarkable. While Professor Wilf-Townsend emphasizes that at the time “the jurisdiction of the lower federal courts was understood to be confined to the territory of the state in which the court sat,” he also must concede that “Congress had the power to extend the reach of federal courts beyond state lines” and indeed did just that some two decades later.¹⁸²Wilf-Townsend, supra note 18, at 1641. Today, there would be little doubt about congressional authority to do so, and certainly no constitutional question about such federal court jurisdiction.

Professor Wilf-Townsend fares no better with two early twentieth-century cases, Hartford Life Insurance Co. v. Ibs¹⁸³Hartford Life Ins. Co. v. Ibs, 237 U.S. 662 (1915). and Supreme Tribe of Ben-Hur v. Cauble.¹⁸⁴Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921). Both cases involved lawsuits challenging an earlier decree brought by unnamed, out-of-state members of the class involved in the lawsuit that generated the earlier decree. The earlier decree in both cases purported to settle claims between an insurer and multiple insureds. And, in both cases, the Supreme Court held that the earlier decree was binding on the unnamed, out-of-state class members. That said, both earlier lawsuits were brought in the home jurisdiction of the insurer;¹⁸⁵See Ibs, 237 U.S. at 666; Cauble, 255 U.S. at 357–59. thus, under modern understandings there would presumably general jurisdiction as to all claims, even those of the unnamed class members. (And, on top of that, the first lawsuit in the Cauble case was brought in federal court.¹⁸⁶See Cauble, 255 U.S. at 357–59. )

2. Arguments Grounded in the Unique Nature of Class Actions

We turn next to arguments grounded in the notion that class actions are exceptional. The first argument, enunciated by Judge Wood before she became a judge and recently expanded upon by Professor Marcus and Ostrander, relies on the distinct nature of representational class actions as justification to apply pendent party personal jurisdiction. The second argument, advanced by Professor Dodson, argues that it is valid to ignore unnamed plaintiffs’ claims because the plaintiff class is, much like a corporation, an entity unto itself. I consider each argument in turn.

In a 1987 article, then-Professor Wood argued that the relevance of unnamed class members’ claims against the defendant should turn on “the kind of class action involved—representational or joinder.”¹⁸⁷Wood, supra note 78, at 616. Judge Wood also identified a second factor of relevance: “the relationship between the specific jurisdiction contacts for the individual claim and the contacts for the rest of the class’s claims.” Id. Here, however, Judge Wood only meant to describe the appropriateness of specific jurisdiction as to all claims where the injuries were suffered in the forum en masse by the entire class. See id. at 617 (using the Kansas City Hyatt Regency hotel skywalk collapse case as an example). According to Judge Wood:

If a small-stakes money damage class action is properly treated as a pure representational action, which the theory of public law litigation suggests it is, . . . then the contacts supporting the individual’s claim against the defendants should support the entire class’s claims. In this case, clearly the most difficult for this variety of pendent personal jurisdiction, the notion of practical identity of interest between the named plaintiff and the absentees is stretched to the limit. . . . If, on the other hand, the public law character of small claim class actions is disregarded or rejected, and they are viewed as a simple aggregation of claims, specific jurisdiction with respect to the named plaintiff’s claim probably should not support specific jurisdiction for the absentees’ claims. Pure representational actions for injunctive relief would be analyzed in the same way, with the propriety of resting the entire suit on the specific jurisdictional links with the named plaintiff alone depending on the extent to which the public law litigation model is accepted.¹⁸⁸Id. at 616–17 (footnote omitted).

In other words, Judge Wood argued that, though pendent party personal jurisdiction does not apply (as Bristol-Myers seems to confirm) in the context of pure aggregation, it might apply in at least some class actions.

The problem with this argument in favor of ignoring unnamed class members’ claims for personal jurisdiction purposes is that it does not offer a justification for doing so. It seems quite subjective (as Judge Wood seems to concede) whether the “public law litigation model” will be, or should be, “accepted.”¹⁸⁹Id. at 617. But even if it will be and should be, it remains unclear how that provides justification for evading a constitutional requirement.

Professor Marcus and Ostrander provide some heft to Judge Wood’s musings. But their argument is plainly restricted to class actions in federal, not state, courts, and also overstates the efficiency benefits of ignoring unnamed class members’ claims.

Professor Marcus and Ostrander argue that a “regulatory conception” of class actions “treats the class action as a device to enable law enforcement,”¹⁹⁰Marcus & Ostrander, supra note 18, at 1532. and that “[t]he only real argument for many negative value class actions is regulatory.”¹⁹¹Id. at 1532–33. And they try to bolster their argument by claiming that ignoring unnamed plaintiffs’ claims is not inconsistent with the overarching goals of personal jurisdiction:¹⁹²See supra notes 32–33 and accompanying text. to “limit . . . a court’s territorial reach” in order to “ensure that the court only exercises adjudicatory power when the sovereign on whose behalf it acts has legitimate regulatory authority,”¹⁹³Marcus & Ostrander, supra note 18, at 1547. and “to ensure that the exercise of adjudicatory power is reasonable.”¹⁹⁴Id. at 1548. First, however, their discussion of the justifications for expanding limits on courts’ territorial reach makes clear that they are referring to federal, not state, courts.¹⁹⁵Professor Marcus and Ostrander explain:

[A] federal court adjudicating a multistate class action exercises the federal government’s power and does not project one state’s sovereign prerogative beyond acceptable territorial limits. As a matter of law, the federalism argument against [Bristol-Myers’] application in class action proves too much. But the idea behind it, that a federal class action simply does not have federalism implications of the sort prompted by state court litigation, is sensible and counsels against [Bristol-Myers’] migration into the class action’s domain.

Id. at 1548 (emphases added).

Second, and moreover, Professor Marcus and Ostrander’s attempt to justify a single state’s exercise of adjudicatory power notwithstanding unnamed class members’ claims falls somewhat flat. Professor Marcus and Ostrander argue that “[t]he undifferentiated nature of the defendant decreases the likelihood that the forum state has any less of a regulatory interest in the defendant’s conduct than any other state,”¹⁹⁶Id. at 1548–49. while “[a] single multistate class action surely compares favorably by an efficiency metric to several single state ones.”¹⁹⁷Id. at 1549.

There is something to be said for the argument that an excessively narrow view of a state’s adjudicative authority ought not to require similarly situated plaintiffs to pursue multiple lawsuits—especially where individual lawsuits are likely not to be economically feasible. Indeed, the Supreme Court has noted that “[a] construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified.”¹⁹⁸Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313–14 (1950). But requiring a multistate class action to take place in one of the defendant’s “home” jurisdictions hardly seems impractical. Moreover, any notion that a plaintiff may have to litigate a case far from her home falls flat in light of modern trends toward virtual hearings and lawyer-dominated proceedings. And, in the context of a true nationwide class action, it will always be possible to identify a plaintiff from one of the defendant’s “home” states,¹⁹⁹See supra note 93 and accompanying text. such that such travel will in any event not be required.

Professor Dodson provides a different justification for disregarding unnamed class members’ claims, one that rests on the unique nature of class actions. He enlists a conceptual argument advanced by some scholars—that a plaintiff class “is an entity with its own legal status and is more than the sum of its parts”²⁰⁰See Dodson, supra note 22, at 30; Mussat v. IQVIA, Inc., 953 F.3d 441, 445 (7th Cir. 2020) (“Once certified, the class as a whole is the litigating entity, . . . and its affiliation with a forum depends only on the named plaintiffs.”) (citation omitted).

     For earlier endorsements of an “entity theory” of class action litigation, see Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N.Y.U. L. Rev. 13, 26-32 (1996); David L. Shapiro, Class Actions: The Class a Party and Client, 73 Notre Dame L. Rev. 913, 917-60 (1998); Samuel Issacharoff, Preclusion, Due Process, and the Right to Opt Out of Class Actions, 77 Notre Dame L. Rev.1057 (2002). But see Martin H. Redish & Nathan D. Larsen, Class Actions, Litigant Autonomy, and the Foundations of Procedural Due Process, 95 Calif. L. Rev. 1573, 1588-1603 (2007) (critiquing the entity theory).  —to craft an argument that “might be enough to take some class actions out from underneath Bristol-Myers Squibb.”²⁰¹Dodson, supra note 22, at 31. The argument proceeds that, just as corporations are treated as unitary entities (that is, not as the collections of their shareholders) for personal jurisdiction purposes and on that basis receive treatment as an entity for personal jurisdiction purposes,²⁰²Id. plaintiff classes are also entities and thus can receive similar special treatment for personal jurisdiction purposes.²⁰³Cf. Fischer v. Fed. Express Corp., 42 F.4th 366, 380 (3d Cir. 2022) (distinguishing mass actions under the Fair Labor Standards Act from class actions under Rule 23 on the ground that “a Rule 23 class action, once certified, is directed by the named plaintiff and class counsel, representing the absent class members, under the supervision of the court”).

While Professor Dodson’s argument is weighty, it suffers from two flaws. First, it is not at all clear that plaintiff classes are indeed unitary entities. Second, to whatever extent they are, it is nevertheless clear that they are quite dissimilar from corporations (and like entities) that earn their entity-like status outside the jurisdictional context.

Consider first the extent to which plaintiff classes traditionally have been viewed as unitary entities. Professor Dodson points out that plaintiff classes are treated as standalone entities for some other jurisdictional purposes. In particular, the total amount that a class under the Class Action Fairness Act seeks is deemed to be the amount in controversy for purposes of diversity jurisdiction,²⁰⁴See 28 U.S.C. § 1332(d)(6). and the Supreme Court has held that only the named plaintiffs “count” for purposes of section 1332(a)’s complete diversity requirement.²⁰⁵See Snyder v. Harris, 394 U.S. 332, 340 (1969); Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 365–67 (1921). But these settings are quite different. For one thing, they both lie within the sphere of federal subject-matter jurisdiction, which is of no moment to state court jurisdiction. For another thing, and more importantly, they are settings where the ‘expansion’ of federal jurisdiction clearly has no constitutional ramifications: after all, both the amount-in-controversy requirement and the complete diversity requirement are entirely creatures of statute.²⁰⁶While the diversity jurisdiction statute includes amount-in-controversy requirements, see 28 U.S.C. § 1332(a) (standard requirement), (d)(2) (Class Action Fairness Act requirement), Article III of the Constitution is itself devoid of any such requirement, see U.S. Const., art. III, § 2. And while the Supreme Court has interpreted the diversity statute to require complete diversity, see Strawbridge v. Curtiss, 7 U.S. 267 (1806), it has also held that mere minimal diversity satisfies the Constitution, see State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531 (1967). These examples, therefore, seem quite inapposite to the question of state court personal jurisdictional reach, the limits of which are set constitutionally.

Professor Dodson also notes the Court’s holding that the mooting of the named class representative’s claim does not moot the class claims.²⁰⁷See Dodson, supra note 22, at 31 (citing Sosna v. Iowa, 419 U.S. 393, 399, 401–02 (1975)). But that holding could as easily be characterized as treating the plaintiff class as distinct from the named plaintiff (rather than as a unitary entity). After all, if unnamed plaintiff class members’ claims survive the mooting of the class representative’s claim, then effectively the entity (if there is one) is the collection of unnamed class members’ claims, not the class (consisting of named and unnamed plaintiffs) as a whole. To put it differently, if the unnamed class members’ claims survive after the class representative’s claim has been mooted, is that not a strong argument for requiring, not dispensing with the requirement, that there be proper personal jurisdiction over the unnamed class members’ claims?

An even more fundamental problem with this line of argument is that, to the extent that plaintiff classes are ‘entities,’ they are entities solely for litigation purposes. This stands in stark contrast to another example cited by Professor Dodson: the corporation. It is true that personal jurisdiction law (as well as subject-matter jurisdiction law) treats corporations as standalone entities, apart from their shareholders: a corporation is at home in its state of incorporation and its state of its principle place of business, “even if no shareholder is a citizen of either state.”²⁰⁸Id. (citing Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)). Professor Dodson further notes that the same result obtains statutorily for federal diversity subject-matter jurisdiction purposes. See id. (citing 28 U.S.C. § 1332(c)). Recent scholarship, however, draws the constitutionality of that provision in question. See Mark Moller & Lawrence B. Solum, Corporations and the Original Meaning of “Citizens” in Article III, 72 Hastings L.J. 169 (2020). But this makes sense beyond the jurisdictional context: because of limited liability, judgment against a defendant corporation cannot be collected against the corporation’s shareholders;²⁰⁹See Phillip I. Blumberg, Limited Liability and Corporate Groups, 11 J. Corp. L. 573, 577–611 (1986) (surveying the history of limited liability in corporate law in England and the United States). Notably, the same is not true about partnerships (at least with respect to general partners); perhaps this is one reason for the muddled authority Professor Dodson notes on whether partnerships should receive similar treatment. See Dodson, supra note 22, at 31 n.182. nor can shareholders directly lay claim to any monies a plaintiff corporation collects.²¹⁰See, e.g., James D. Cox & Thomas Lee Hazen, Treatise on the Law of Corporations § 7:2 (3d ed. 2022). In stark contrast, a plaintiff class in a damages lawsuit is assembled precisely to collect damages. The distinction strongly suggests that there is little legal basis to treat a plaintiff class as a standalone entity for personal jurisdictional purposes.²¹¹It bears noting that Professor Dodson concludes that, even if the theory discussed in this subsection “might be enough to take some class actions out from underneath Bristol-Myers [,] . . . such a theory seems to be in tension with the Supreme Court’s current trend narrowing personal jurisdiction and its current skepticism of class aggregation.” Dodson, supra note 22, at 31.

3. Arguments Grounded in the Treatment of Unnamed Plaintiff Class Members in Other Contexts

A final argument in favor of treating unnamed class plaintiffs differently is that unnamed plaintiff class members are disregarded in other procedural contexts.²¹²See Devlin v. Scardelletti, 536 U.S. 1, 10 (2002) (noting several ways in which unnamed plaintiffs are treated differently, and finding them “justified by the goals of class action litigation”). Versions of this argument have been advanced by Judge Diane Wood in her opinion for the Seventh Circuit in Mussat v. IQVIA, Inc.,²¹³Mussat v. IQVIA, Inc., 953 F.3d 441 (7th Cir. 2020). and by Professor Steinman in his recent article.²¹⁴See Steinman, supra note 18, at 1240–46. As Professor Marcus and Ostrander note, the argument in its various forms tends to suffer from an “ipse dixit” quality: there is often little offered in the way of reasoning as to why, even if unnamed class members are ignored in one context, they should necessarily be ignored in another.²¹⁵See Marcus & Ostrander, supra note 18, at 1531 (“[T]he justification . . . veers toward the ipse dixit unless it can answer the basic question: why shouldn’t an absent class member count as a party for personal jurisdiction purposes?”). Moreover, it is at least somewhat difficult to see why instruction should be drawn from settings outside personal jurisdiction where unnamed class members are ignored, when notwithstanding the fact that they are not parties, the Court has held that unnamed class members cannot be ignored and indeed do have personal jurisdiction rights.²¹⁶See supra notes 66–77 and accompanying text (discussing Shutts). It bears noting that Shutts addressed only Due Process rights in the context of class actions in which claims for monetary judgments predominate. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811 n.3 (1985). Still, while Due Process requirements may differ in other types of class actions, it would seem that absent class members should still enjoy protections under the Due Process Clause. For discussion of whether Rule 23 might itself provide a basis to suspend the ordinary rules of personal jurisdiction, see infra notes 242–244 and accompanying text. In other words, the Court has reaffirmed that unnamed class members count in the precise context of personal jurisdiction. But even beyond those objections, the argument in its varied forms suffers from fatal flaws.

Let us begin with Judge Wood’s opinion in Mussat, which notes that unnamed class members “are not considered parties for assessing whether the requirement of diverse citizenship under 28 U.S.C. § 1332 has been met,”²¹⁷Mussat, 953 F.3d at 447. or when a court decides whether venue is proper.²¹⁸Id. There are two problems here. First, these issues are both questions of federal law that a state court would never confront. Second, and more importantly, neither of these issues has any constitutional implications. As noted above, Article III requires only minimal diversity,²¹⁹See supra note 206. so the Constitution cares not whether unnamed class plaintiffs are diverse from the defendant, provided that at least one named plaintiff is. And venue is purely subconstitutional. In contrast, the personal jurisdiction limits on a state are constitutional. Thus, the examples cited by Judge Wood are inapposite.

Professor Steinman goes further,²²⁰Professor Steinman also cites the two examples relied upon by Judge Wood in Mussat. See Steinman, supra note 18, at 1242–43. So, too, does Professor Wilf-Townsend. See Wilf-Townsend, supra note 18, at 1635–36. arguing that unnamed parties’ claims form part of the same ‘constitutional case’ under Article III.²²¹See Steinman, supra note 18, at 1240–41. Professor Wilf-Townsend also points to Article III standing as an applicable precedent. See Wilf-Townsend, supra note 18, at 1636. Indeed, it is on this basis that pendent party jurisdiction (that is, pendent party subject-matter jurisdiction, not pendent party personal jurisdiction) is constitutionally available under the supplemental jurisdiction statute.²²²See 28 U.S.C. § 1367(a) (providing that, with limited exceptions, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution”); supra notes 131–132 and accompanying text. This, he argues, provides a precedent for including unnamed parties’ claims for personal jurisdiction purposes provided that they arise out of the same “common nucleus of operative fact” as a claim as to which there is proper personal jurisdiction.

In effect, Professor Steinman enlists Article III to make a case for pendent party personal jurisdiction. But Article III is inapposite to the jurisdiction of the state courts. Indeed, some state courts explicitly enjoy jurisdiction well in excess of that authorized by Article III.²²³See, e.g., Mass. Const, ch. III, art. II (as amended by art. XXXV) (“Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”).

Beyond that, even to the extent that Article III is relevant, it speaks to subject matter jurisdiction, which is quite distinct from personal jurisdiction. Consider that a lawsuit by an American citizen injured abroad by a product manufactured abroad by a manufacturer based abroad might constitute a “case” for Article III purposes, yet—as the Court’s holding in Goodyear Dunlop Tires Operations, S.A. v. Brown affirms—personal jurisdiction can be lacking.²²⁴Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 927 (2011). In short, the two inquiries are orthogonal.²²⁵Professor Richard Freer observes that recent Court cases seem to be “morphing” personal jurisdiction from its traditional focus on litigants to a focus on claims, which in turn brings the focus of the inquiries for personal jurisdiction and subject-matter jurisdiction closer together. See Richard D. Freer, From Contacts to Relatedness: Invigorating the Promise of “Fair Play and Substantial Justice” in Personal Jurisdiction Doctrine, 73 Ala. L. Rev. 583, 596 (2022). To whatever extent that observation may be accurate, it does not mean that the particular analyses that each inquiry requires, or the results of those inquiries, will be similar, as the discussion in the text demonstrates.

Finally, to whatever extent one might think that Article III’s limits provided guidance with respect to state court personal jurisdiction under the Constitution as originally enacted, it bears emphasis that the Fourteenth Amendment’s subsequent passage presumably trumps Article III’s influence.²²⁶Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65–66 (1996) (rejecting the argument that precedent holding that the Fourteenth Amendment empowers Congress to abrogate state sovereign immunity applies to the Commerce Clause because the logic applicable in the Fourteenth Amendment context “was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment”).

V. WORKING AROUND CONSTRAINTS ON PERSONAL JURISDICTION IN CLASS ACTIONS

In this Part, I consider how, assuming one wanted to overcome personal jurisdictional limits on plaintiff class actions, one might proceed to do so.²²⁷I have elsewhere questioned and lamented the Court’s constriction of general jurisdiction. See Nash, supra note 7, at 497–509. But it seems unlikely that the Court will change course on this point. In the discussion that follows, I take into account the analysis in Part III of the effects of factoring in unnamed class plaintiffs’ claims. First, that discussion highlighted that the restriction on state courts is constitutional, while the restriction on federal courts is not (at least as it pertains to state-based contacts). One thus would expect more options to override the requirement with respect to federal courts than state courts.

Second, the discussion in Part III explained that the effect of the requirement is far more onerous in cases with defendant corporations that are incorporated outside the United States than corporations that incorporated in the United States. The distinction between these corporations is of great moment for policy purposes. To be sure, plaintiffs’ lawyers presumably will always appreciate a greater set of forum options. But a reduction—even a large reduction—in the set of available domestic forums is a far cry from removing the possibility of a class action suit in any domestic forum.²²⁸See Wood, supra note 78, at 615 (“While it is true that stricter general jurisdiction rules would create some inconvenience for some plaintiffs, even this ‘cost’ of change may not be as great as it appears.”). One of the primary goals of a plaintiffs’ class action is to allow for access to the courts where individual plaintiffs’ claims might not suffice to make a lawsuit worthwhile. The option of filing a class suit in a foreign country (for example, the corporate defendant’s place of incorporation) might be cost-prohibitive. Moreover, the foreign jurisdiction might provide far less favorable treatment of class actions, let alone litigation generally.²²⁹Cf. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 240 (1981) (noting that the plaintiff “admits that the action . . . was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland”).

The access-to-justice point argues heavily in favor of overcoming limits on personal jurisdiction in cases involving foreign corporate defendants. But there is a flipside: part of the reason the Supreme Court narrowed general jurisdiction was to harmonize general jurisdiction across national boundaries.²³⁰See Daimler AG v. Bauman, 571 U.S. 117, 141 (2014) (faulting the lower court for having “paid little heed to the risks to international comity its expansive view of general jurisdiction posed,” and noting that “[o]ther nations do not share the uninhibited approach to personal jurisdiction advanced by the Court of Appeals in this case”). Any action that would tend to restore matters to the status quo—even if it was not technically by means of overruling Goodyear,Daimler, and/or Bristol-Myers—could raise harmonization and foreign policy concerns.

With this background, I turn to concrete proposals to overcome personal jurisdictional limits on plaintiff class actions. I explore two possibilities: establishing personal jurisdiction based upon minimum contacts with the United States as a whole rather than any one particular state, and extracting consent to general jurisdiction.

A. Expanding the Use of National Personal Jurisdiction

In considering the possibility of invoking national personal jurisdiction, let us begin with the state courts on whom, as I have emphasized above, the limitations on personal jurisdiction are constitutional. It would seem, then, that there would be no argument (short of constitutional amendment or an avulsive change to governing Supreme Court precedent) that could overcome those limitations. That said, various commentators have suggested that Congress might have the power to allow state courts to exert personal jurisdiction to the full territorial limits of the United States (i) in state cases raising federal claims,²³¹See Robert C. Casad, Personal Jurisdiction in Federal Question Cases, 70 Tex. L. Rev. 1589, 1616 (1992); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 292 (3d Cir. 1981) (Gibbons, J., dissenting). (ii) in all state court cases,²³²See Graham C. Lilly, Jurisdiction over Domestic and Alien Defendants, 69 Va. L. Rev. 85, 148–49 (1983). and (iii) as to foreign nonresident U.S. defendants.²³³See Ronan E. Degnan & Mary Kay Kane, The Exercise of Jurisdiction over and Enforcement of Judgments Against Alien Defendants, 39 Hastings L.J. 799, 809–14 (1988); Dodge & Dodson, supra note 154, at 1215–17, 1224–31. See also Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 42 (1987) (making the less aggressive argument that, while the Constitution allows federal courts to exercise nationwide minimum contacts as to foreign nonresident defendants, it allows state courts more leeway in exercising personal jurisdiction but does not permit state courts to exercise full-blown nationwide minimum contacts). To the extent any or all of these arguments have validity, they would clearly apply in plaintiff class actions. I have elsewhere expressed doubt as to each of these arguments.²³⁴See Nash, supra note 7, at 543–55. More importantly, courts have yet to adopt any of them.

We turn, then, to the federal courts, where the norm restricting personal jurisdiction to state boundaries is subconstitutional; the constitutional limit is set by the Fifth Amendment (not the Fourteenth) at the national boundaries. Indeed, even as things now stand, some federal statutes already allow for nationwide personal jurisdiction,²³⁵See supra notes 85, 87, and accompanying text. and Rule 4(k) already contemplates nationwide personal jurisdiction for federal claims under limited circumstances.²³⁶See supra notes 85–86 and accompanying text.

Which actors, and which tools, can bring broader availability of nationwide personal jurisdiction—including in plaintiff class actions—to fruition? First, Congress clearly has that power, and indeed has exercised it before.²³⁷See supra note 87. Second, based on the existence of Rule 4(k)(2),²³⁸See supra notes 85–86 and accompanying text. it would seem that the Supreme Court can use its rulemaking power to expand the universe of cases where federal courts can exert nationwide personal jurisdiction.²³⁹See Bradt & Rave, supra note 18 at 1286–87 (“Although there may be no constitutional problem with a federal court exercising personal jurisdiction over a multistate class action challenging a nationwide course of conduct, we do not think that paves the way for multistate class actions in federal court outside of the defendant’s home state—at least without further action from Congress or the Advisory Committee.”). That said, some scholars question this conclusion,²⁴⁰See supra note 84 (noting arguments that the Rules Enabling Act may constrain the role of rulemaking here). and indeed the civil rules advisory committee has apparently questioned its own power when faced with such efforts,²⁴¹See A. Benjamin Spencer, Rule 4(k), Nationwide Personal Jurisdiction, and the Civil Rules Committee: Lessons from Attempted Reform, 73 Ala. L. Rev. 607, 611–14 (2022). thus leaving the matter in doubt. Finally, Professor Steinman has suggested that federal courts can even now, using Rule 23 as a base, deploy federal common law to justify national personal jurisdiction in plaintiff class actions.²⁴²See Steinman, supra note 18, at 1257–58. Professor Steinman also suggests that Rule 83 of the Federal Rules of Civil Procedure may lay the groundwork for federal courts to deploy federal common law to extend personal jurisdiction in class actions beyond state boundaries. See id. at 1257. But nothing in Rule 83 suggests that it was intended to vest such broad powers in the district courts. (Perhaps this is a basis on which some courts have asserted that “Bristol-Myers Squibb does not extend to federal class actions.”²⁴³Lyngaas v. Curaden AG, 992 F.3d 412, 435 (6th Cir. 2021) (emphasis added). ) However, other commentators have refuted the notion that the protections that Rule 23 provides to defendants are sufficient to protect as well their constitutional personal jurisdiction interests.²⁴⁴See Marcus & Ostrander, supra note 18, at 1531 (“[T]he claim that Rule 23 and personal jurisdiction doctrine are fungible in terms of due process is implausible.”); Spencer, supra note 26, at 44 (“It cannot be that Rule 23 itself provides the relevant jurisdictional rule. Nothing in the language of the rule addresses the personal jurisdiction of district courts over the claims of absent class members included in a certified class.”).

     Professor Wilf-Townsend argues that non-monetary class actions—that is, class actions that would fall under Rule 23(b)(1) or (b)(2)—should perhaps more easily satisfy personal jurisdiction requirements insofar as the plaintiffs’ claims are in some sense indivisible. See Wilf-Townsend, supra note 18, at 1660–61. But Professor Michael Morley reaches a different conclusion. See Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615, 633–39 (2017). Moreover, to the extent that a court can issue an injunction that extends beyond the parties in the case (for example, a nationwide injunction), the need for a class action may in any event be obviated. See id. at 620–21.

In any event, even if some of the avenues by which to arrive at national personal jurisdiction are subject to doubt, the fact that it can be effected (at least through congressional statute) cannot be doubted. Moreover, to the extent that there are plaintiff class actions that under current law remain irrevocably in state court²⁴⁵It is not clear that there are many such cases even under current law. As Professors Bradt and Rave put it, given the incentives created by limits on personal jurisdiction in state court, “nearly all nationwide or multistate class actions will end up in federal court in the defendant’s home state or states where it is subject to general jurisdiction (unless the defendant has engaged in conduct directed nationwide in another state or consents to personal jurisdiction elsewhere). Single-state class actions might still be viable in other states but will almost always be removable to federal court as a matter of ordinary diversity jurisdiction or under CAFA.” Bradt & Rave, supra note 18, at 1288. where national personal jurisdiction would be appropriate, Congress can—subject to the outer limits of Article III—expand the subject matter jurisdiction of the federal courts, much as it has already done with the Class Action Fairness Act²⁴⁶See 28 U.S.C. § 1332(d). and the Multiparty Multiforum Trial Jurisdiction Act.²⁴⁷See id. § 1369. And, of course, Congress could restrict the number of available federal forums by including limitations on venue.

B. Extracting Consent

Another possible avenue to remedy limits on personal jurisdictional limits is to extract consent from would-be corporate defendants when they register to do business. Indeed, many states already have done so—granting permission to a corporation to do business in the state on the corporation granting blanket consent to general jurisdiction in the state.²⁴⁸See Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L. Rev. 1343, 1345 (2015). To the extent that consent thus obtained is valid, a multistate class action—including unnamed plaintiffs from any states—could be brought in any state where consent was granted.

The Supreme Court in Mallory v. Norfolk Southern Railway Co.²⁴⁹143 S. Ct. 2028 (2023). recently held that statutes exacting consent comport with the Due Process Clause.²⁵⁰See id. at 2038–45. That said, the Court’s opinion did not address the possibility that such state action could offend the dormant Commerce Clause.²⁵¹See id. at 2047–54 (Alito, J., concurring in part and concurring in the judgment); Carol Andrews, Another Look at General Personal Jurisdiction, 47 Wake Forest L. Rev. 999, 1073 (2012) (“Even if consent through registration were to survive due process scrutiny, it would face problems under the Dormant Commerce Clause.”); cf. Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 894 (1988) (invalidating under the Commerce Clause Ohio statute that allowed for tolling of applicable statute of limitations “only for those foreign corporations that do not subject themselves to the general jurisdiction of Ohio courts”). Moreover, even if these statutes pass muster under the federal Constitution, it is entirely conceivable that state courts might find that they violate applicable state constitutional law.²⁵²For example, a state court could find that such a statute runs afoul under that state’s own version of the unconstitutional conditions doctrine. See Kay L. Levine, Jonathan Remy Nash & Robert A. Schapiro, Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions, 56 U.C. Davis L. Rev. 247 (2022).

To whatever extent that federal law in Mallory’s wake and applicable state law limit states’ freedom to use statutes to secure general jurisdiction, one might envision a narrower version of such statutes that might nevertheless aid in the assertion of jurisdiction over nationwide class actions: states might seek consent to jurisdiction over such class actions provided that there was valid personal jurisdiction—i.e., specific jurisdiction—over the named plaintiffs’ claims. In other words, the consent to general jurisdiction would be restricted to unnamed plaintiffs’ claims in class action suits.

One also might turn to the possibility of the federal government extracting such consents. Such an approach would surely dispense any Commerce Clause concerns that attend states’ attempts to extract consent.

Most interesting in this regard would be a federal statute that required international corporations to register to conduct business in the United States in return for which the corporations would consent to jurisdiction in the United States. Such a statute would remedy the area of greatest need after the Court’s decisions in Goodyear, Daimler, and Bristol-Myers: the ability to assemble a domestic class action against a foreign corporation. Such a statute could secure a foreign corporation’s consent to general jurisdiction—if not in every state, then in the state in which they did the most business. Or, more narrowly, the statute could (as above) seek consent as to general jurisdiction only as to unnamed plaintiffs’ claims in class action suits provided that specific jurisdiction existed as to the named plaintiffs’ claims. Finally, the statute could have its application restricted to cases in the federal courts.²⁵³All of these limitations would help ensure that the concession sought by the government has an “essential nexus” to the goals of the law, and proportional to the benefit secured by the consenting corporation, as unconstitutional condition doctrine cases in other areas seem to require. See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987) (setting out the “essential nexus” requirement in the context of exactions under the Takings Clause); Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (setting out the requirement of “rough proportionality” in the same context).

Such a statute would probably garner support both from plaintiffs’ attorneys, and from domestically incorporated corporations that would see it to ‘even the playing field’ between themselves and their foreign competitors. That said, depending on the Court’s holding on the validity of state registration statutes that seek consent to general jurisdiction, such a federal statute yet might be constitutionally infirm. And it might also frustrate efforts other cases have undertaken to harmonize U.S. personal jurisdiction law with that of other nations.²⁵⁴See supra text accompanying note 230.

CONCLUSION

In this Article, I have argued that current law generally requires courts to consider the claims of unnamed class plaintiffs in determining the propriety of personal jurisdiction. The requirement is constitutional for state courts and subconstitutional for federal courts. The impact of this requirement is greater for plaintiffs seeking to sue corporations incorporated outside the United States than ones incorporated in the United States. Congress might work around the constraint by increasing the categories of cases in which federal courts can rely on national—as opposed to state-based—personal jurisdictional limits. Another possibility—seemingly bolstered by the Court’s decision in Mallory—is for the federal government to extract consent to jurisdiction from corporations seeking to do business in the United States.