Academic journal article Albany Law Review

Why Daimler Accommodates Personal Jurisdiction in Mass Tort Litigations

Academic journal article Albany Law Review

Why Daimler Accommodates Personal Jurisdiction in Mass Tort Litigations

Article excerpt


When she authored the majority opinion in Daimler AG v. Bauman, (1) did Justice Ruth Bader Ginsburg intend to fracture mass tort litigations, which typically involve numerous out-of-state defendants as well as out-of-state plaintiffs? The question seems odd for at least two reasons. First, we usually speak of the court rather than the judge who writes in its name. Second, the question too easily elicits a negative answer; there is nothing about the Daimler opinion that has anything to do with mass tort litigation, (2) and so there is no basis for saying that Justice Ginsburg held any intent whatsoever in relation to that species of litigation.

Yet the question appears both appropriate and necessary. Appropriate, because Justice Ginsburg has singularly undertaken to reform and modernize the Supreme Court's personal jurisdiction jurisprudence over the past several years. Necessary, because courts around the nation handling mass tort litigations have been, or are at the risk of, misreading her opinion in Daimler and failing to discern its theoretical underpinnings. The majority opinion in Daimler appears to narrowly compress the range of jurisdictions in which courts may exercise general jurisdiction over corporate entities. (3) A deeper reading of the case and its intellectual roots demonstrates, however, that this approach to general jurisdiction correlates with an expansive view of specific jurisdiction capable of accommodating the multiparty, multi-jurisdictional mass tort scenario.

Justice Ginsburg began honing her view in 2011 via both her dissenting opinion in J. Mclntyre Machinery v. Nicastro (4) and her opinion for a unanimous Court issued on the same day in Goodyear Dunlop Tires Operations, S.A. v. Brown. (5) Daimler followed in 2014. (6) In each of these opinions, Justice Ginsburg cited repeatedly to a 1966 Harvard Law Review article by Arthur T. von Mehren and Donald T. Trautman, entitled: "Jurisdiction to Adjudicate: A Suggested Analysis." (7) In that work, Professors von Mehren and Trautman proposed that fairness to both parties in the context of modern multistate controversies called for "a fresh methodology and terminology" covering adjudicatory jurisdiction. (8) They framed the new concepts "specific" and "general" jurisdiction, (9) soon to "become the touchstones of contemporary personal jurisdiction analysis." (10) Because the program von Mehren and Trautman outline in "Jurisdiction to Adjudicate" motivated Justice Ginsburg's approach, therein also lies the theoretical ground for assessing how Daimler should be applied in mass tort contexts.

Toward that end, Part II homes in on the concept of a mass tort and justifies the inclination to locate a single forum to serve as the host venue in such litigations. Part III elucidates the relevant concepts and concerns announced by von Mehren and Trautman in their seminal article; also discussed is Professor Mary Twitchell's later writing advocating a fuller turn from general to specific jurisdiction. Part IV then addresses Justice Ginsburg's application of the von Mehren and Trautman, as well as Twitchell, scholarship. Part V provides an assessment of why Justice Ginsburg's ultimate jurisdictional opinion in Daimler should not be interpreted to present a constitutional obstacle to the efficient, centralized handling of mass tort litigations. The article concludes with Part VI.


Neither courts nor scholars have agreed on a tightly wrapped definition of "mass tort." Typically, the term has been applied to litigations arising from widespread catastrophic personal injuries. (11) This article similarly focuses on the personal injury paradigm, although the jurisdictional analysis should translate to mass torts rooted in financial harm. (12)

Some courts have rested on the basic hornbook notion that a mass tort is a "civil wrong that injures many people. …

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