In a new Northwestern University Law Review article titled “Personal Jurisdiction and Aggregation,” my colleague Scott Dodson unpacks how jurisdiction, preclusion, and joinder doctrines together enable aggregation, and highlights the increasing role played by personal-jurisdiction doctrine as a constraint. This article is a welcome addition to the literature that highlights and ties together Professor Dodson’s groundbreaking contributions in two procedural domains—complex litigation and jurisdiction.
Professor Dodson first explains how modern procedure favors aggregation, within some limits. Professor Dodson then chronicles how a recent restrictive turn to personal jurisdiction is “indirectly hostile” to and effectively limits aggregation across a number of areas, including simple joinder of parties and claims, representative actions, and multidistrict litigation. For example, Professor Dodson argues, the Supreme Court’s 2017 decision Bristol-Myers Squibb v. Superior Court imbued personal jurisdiction with a powerful disaggregation effect by requiring a close connection between the forum state, each defendant, and each claim, thus threatening the viability of claim, party, and case joinder that was until recently viewed as allowed and routine.
To allow courts to more freely aggregate, Professor Dodson proposes that Congress authorize a broader personal-jurisdiction scope in federal court for certain multiparty and multi-claim cases that would benefit from aggregation. Professor Dodson acknowledges that “oddities” might result, in terms of the fora that might hear multistate cases, but suggests that joinder (Rule 20) and venue doctrines could be brought to bear to make nationwide jurisdiction sensible.
Professor Dodson argues that his proposed regime is constitutional and consistent with the norms of personal jurisdiction and aggregation. Although the Supreme Court has not yet decided whether the Constitution permits nationwide jurisdiction, commentators nearly uniformly believe it does. Also, Professor Dodson notes, Congress has provided for such nationwide jurisdiction in statutes that have been upheld by lower federal courts. Congress and rulemakers have provided for nationwide personal jurisdiction to facilitate joinder in interpleader, certain property, and bankruptcy cases. For these reasons, Professor Dodson argues, “a joinder-based authorization of personal jurisdiction in federal court, expanded beyond state-based boundaries, is both constitutional and boasts significant historical precedent.”
Professor Dodson canvasses and acknowledges some of the possible downsides to nationwide jurisdiction, including forum shopping and “forum selling, in which federal judges or districts offer attractive results or procedures to incentivize plaintiff-side selection of their forum.” But Professor Dodson believes a direct approach to managing the boundaries of aggregation—via aggregation doctrine—is preferable to an indirect approach achieved via changes in personal jurisdiction doctrine.