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Abstract

This contribution to a symposium on business and the Roberts Court examines the recent significant reshaping of the contours of personal jurisdiction. Although the changes limit the scope of jurisdiction in ways that may favor defendants overall, the Court does not appear directly motivated by a desire to favor business—and, in fact, the Court erected significant obstacles to business interests in some contexts. Instead, the results in the cases may be better explained by the Court’s commitment to a formalist approach with respect for territorial boundaries and by a skepticism of transnational litigation not clearly related to a U.S. forum.

The Court’s recent changes to the discovery rules suggest that its rulemaking approach, in contrast, may align more directly with business interests. Chief Justice Roberts’ report summarizing the new rules parallels the language used by business advocates who focus on the expense of lawsuits and the toll that litigation takes on business. In the report, he writes that the discovery changes are important “to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result.” The Court’s more business-protective approach to discovery does not undercut the Court’s formalist commitment, but rather likely reflects a continued regard for the separation of powers even in the Court itself, where the rulemaking function can more directly encompass policy interests than the Court’s adjudication function.

While the revised discovery rules may lessen litigation costs overall, however, they do not take account of the need for jurisdictional discovery and do not help resolve the jurisdictional analysis. This oversight is unfortunate, as the Court’s new equilibrium in personal jurisdiction means that factual development will become increasingly important. It is no longer enough to say that a defendant has continuous, systematic, and substantial contacts within the forum; instead, parties will have to develop a factual foundation that explores the nature, scope, extent, and duration of those contacts and explains how those contacts relate to the substance of the claim asserted. Without further refinement of the rules of jurisdictional discovery, courts and parties alike will struggle to reconcile the jurisdictional question with the available tools of discovery.

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