The Irrepressible Myth of Burnham and Its Increasing Indefensibility After Goodyear and Daimler

THE IRREPRESSIBLE MYTH OF BURNHAM AND ITS INCREASING INDEFENSIBILITY AFTER GOODYEAR AND DAIMLER Jeffrey W. Stempel* TABLE OF CONTENTS INTRODUCTION ............................................................................................. 1204 I. JURISDICTION BY SERVICE ALONE: THE ROAD TO MACARTHUR AND BURNHAM .......................................................................................... 1211 A. From Territoriality to Minimum Contacts ................................ 1211 B. The Intellectual Underpinnings of Tag Jurisdiction Weaken with Modern Minimum Contacts Jurisprudence ....................... 1215 1. “Specific” and “General” Personal Jurisdiction .............. 1215 2. Shaffer v. Heitner and the Partial Death Knell of Purely Territorial Exercises of Personal Jurisdiction ................... 1217 C. Up in the Air: Testing the Limits of Tag Jurisdiction in the Post-International Shoe and Post-Shaffer Era .......................... 1224 1. Service on the Move ............................................................ 1224 © 2015 Jeffrey W. Stempel. All rights reserved. * Doris S. & Theodore B. Lee Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas. Thanks to Bill Boyd, Dan Hamilton, Doris Lee, Ted Lee, Ann McGinley, the late Jim Rogers, John White, and Margaret Woo as well as to Jeanne Price, David McClure, and Elizabeth Ellison as well as to the Nevada Law Journal and Northeastern University School of Law. Special thanks to Steve Subrin, who continues to inspire all who work in this field, and to Thom Main, whose tenacious vision and organization made this Symposium possible. In this case, the student apple rests right upon the trunk of the teacher’s tree. Preparation of this article was aided through Boyd School of Law research stipend. This article takes its title and term from John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693 (1974) and makes a similar point about the degree to which a judicial precedent can be misunderstood, with the misunderstanding achieving authoritative status. Despite the overwhelming popularity of Ely’s article (it has been cited roughly 400 times in other articles) and the importance of the insight, the terminology has not been widely used in legal scholarship. See, e.g., Richard D. Freer & Thomas C. Arthur, The Irrepressible Influence of Byrd, 44 CREIGHTON L. REV. 61 (2010); Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy, 63 WASH. & LEE L. REV. 81 (2006); Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706 (2003). 1203 1204 NEVADA LAW JOURNAL [Vol. 15:1203 2. Grace v. MacArthur: The Trial Court Case as an Illustrative and Misleading Icon That Presages the Burnham Plurality Opinion ................................................ 1225 3. The Odd Treatment of Grace v. MacArthur as Authoritative ....................................................................... 1230 II. BURNHAM .......................................................................................... 1237 III. GOODYEAR, NICASTRO, DAIMLER, AND WALDEN V. FIORE ................. 1245 A. Goodyear................................................................................... 1246 B. Nicastro ..................................................................................... 1247 C. Daimler ..................................................................................... 1248 D. Walden v. Fiore......................................................................... 1253 CONCLUSION: TIME TO END TO THE MYTH AND CURRENT FRAGMENTED PERSONAL JURISDICTION METHODOLOGY ....................................... 1255 [J]ust as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view. —O. W. HOLMES, JR. THE COMMON LAW 35 (1881) It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. —O. W. Holmes The Path of the Law, 10 HARV. L. REV. 457, 469 (1897) Perhaps the adage about hard cases making bad law should be revised to cover easy cases. —Burnham v. Superior Court, 495 U.S. 604, 640 n.* (Stevens, J., concurring) INTRODUCTION Personal jurisdiction has long been at the center of the civil procedure curriculum in law school1 and constitutes an important part of law practice.2 Ser1 Some civil procedure faculty report spending as many as six to eight weeks of class time covering personal jurisdiction. Many prominent Civil Procedure casebooks devote 100 pages or more to the topic and excerpt as many as a dozen personal jurisdiction cases, as well as presenting extensive notes on personal jurisdiction cases. See, e.g., DAVID CRUMP ET AL., CASES AND MATERIALS ON CIVIL PROCEDURE 49–117 (6th ed. 2012) (sixty-eight pages and twenty-four excerpted cases addressing personal jurisdiction); JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE: CASES AND MATERIALS 71–198 (10th ed. 2009) (127 pages and twentytwo excerpted cases); RICHARD L. MARCUS ET AL., CIVIL PROCEDURE: A MODERN APPROACH 680–824 (5th ed. 2009) (144 pages and fourteen excerpted cases on personal jurisdiction); STEPHEN N. SUBRIN ET AL., CIVIL PROCEDURE: DOCTRINE, PRACTICE, AND CONTEXT 680–846 Summer 2015] THE IRREPRESSIBLE MYTH 1205 vice of process, a close companion, receives considerably less attention in the law school curriculum,3 but it is perhaps even more important to the daily practice of law.4 The amount of class time devoted to personal jurisdiction is so great (and perhaps excessive) because it lends itself so well the traditional modified Socratic method of the classroom. Changing the facts just a little forces students to confront the problems of concrete application of doctrine—for example, “What if the defendant had intentionally shipped ten widgets into the forum state instead of ten thousand?” The law of personal jurisdiction also presents an opportunity to teach civil procedure as legal process, as courts traverse from the territorial sovereignty and international law concepts of Pennoyer5 to the minimum contacts of International Shoe6 to the more involved modern applications of World-Wide (4th ed. 2012) (166 pages and fourteen excerpted cases addressing personal jurisdiction). But see RICHARD D. FREER & WENDY COLLINS PERDUE, CIVIL PROCEDURE: CASES, MATERIALS, AND QUESTIONS 21–142 (6th ed. 2012) (devotes 121 pages of consideration to personal jurisdiction but excerpts only nine cases); JEFFREY W. STEMPEL ET AL., LEARNING CIVIL PROCEDURE 76–122 (2013) (...truncated)