Article by B. Glenn George
Since the seminal case of International Shoe Co. v. Washington restructured the landscape of personal jurisdiction in 1945, both courts and commentators have struggled repeatedly with the task of defining and refining the limits of jurisdictional power. The vast majority of those efforts have focused on the problem of “specific”' jurisdiction—when the plaintiff's claim arises out of the defendant's activities in the forum. In contrast, the exercise of “general”' jurisdiction—when the defendant's forum activities are unrelated to the cause of action—has received limited attention. In the past thirty-five years, the Supreme Court has addressed directly the general jurisdiction issue in a single case. Attempts by commentators to define the scope of general jurisdiction have been only slightly more frequent.
The reason for such disinterest is apparent. International Shoe and its progeny diminished the need for the use of general jurisdiction by substantially expanding the availability of specific jurisdiction. Thus the courts have had fewer opportunities to consider the problem. Nonetheless, as illustrated by the Supreme Court's recent decision in Helicopteros Nacionales de Colombia, S.A. v. Hall (Helicol), the concept of general jurisdiction remains alive and well. In an international context, such as the helicopter crash in Peru involved in Helicol, general jurisdiction may provide the only means of litigating against a foreign corporation in an American forum. In a domestic setting, general jurisdiction can offer the plaintiff additional forum options in which litigation can be conducted more conveniently.
Courts evidently have been frustrated in attempts to apply general jurisdiction theory by the lack of guidance from the Supreme Court. It is this issue which has been neglected most by the commentators and the courts. This Article focuses on the corporate defendant and will propose an approach to general jurisdiction analysis consistent with the Supreme Court's development of specific jurisdiction theory. My concern is limited to the resolution of a “‘pure”’ general jurisdiction problem in which a corporation's forum activities clearly do not give rise to the plaintiff's claim. Related issues, such as the appropriate scope of specific jurisdiction, general jurisdiction over the individual defendant, transient jurisdiction, and choice-of-law implications, will be left for others.
The Article begins with a brief examination of the history of general jurisdiction and its waning significance since International Shoe. Part I considers whether general jurisdiction remains necessary and viable or whether the concept is outdated and should be abolished. The Article then describes the current state of confusion in applying general jurisdiction theory. Part I concludes with a critique of the rationales that have been or could be proposed to support the exercise of general jurisdiction.
Part II suggests that general jurisdiction be viewed as a branch of the International Shoe “minimum contacts”' analysis subject to the same test used for specific jurisdiction. This proposal begins with a description of how specific jurisdiction analysis operates. The test is then adapted to the general jurisdiction problem. The Article concludes with examples of how such an approach might work and a discussion of the potential advantages of the proposal.
About the Author
B. Glenn George. Visiting Associate Professor of Law, University of Colorado School of Law. B.A. 1975, University of North Carolina; J.D. 1978, Harvard Law School.
Citation
64 Tul. L. Rev. 1097 (1990)