“The Most Natural State” and Personal Jurisdiction After Ford Motor Company v. Montana Eighth Judicial District Court

I. Introduction

Personal jurisdiction doctrine has been in a state of flux ever since 2014, when the Supreme Court eviscerated general jurisdiction over corporations in Daimler AG v. Bauman.^[1] In a series of cases culminating in Mallory v. Norfolk Southern Railway Company,^[2] the Court has struggled with the task of “making sense of [its] personal jurisdiction jurisprudence.”^[3] The Court’s holding in Daimler meant that giant, multinational corporations like Walmart or Ford Motor Company could be held to jurisdiction in only three states: its state of incorporation, the state in which the corporation has its principal place of business, and the state where specific jurisdiction is appropriate. As scholars had predicted, the restriction on general jurisdiction in Daimler put additional pressure on the doctrine of specific jurisdiction.^[4] Plaintiffs would now expect specific jurisdiction to fill in some of the gaps left by general jurisdiction. And, perhaps more surprisingly, defendants, heartened by the “jurisdictional windfall” granted to them by Daimler, would wage war on specific jurisdiction, attempting to narrow it even further.^[5] In Ford Motor Company v. Montana Eighth Judicial District Court,^[6] the Supreme Court entered one such battle, holding firm against the attempted incursion by Ford and handing a victory to the plaintiffs—the first since before 2014.^[7]

In this Article, I will explore the decision in Ford Motor Company in light of the majority’s declaration that jurisdiction was proper there because the plaintiffs had sued in “the most natural State.”^[8] This phrase, which has been noted and used by lower courts,^[9] has both doctrinal and rhetorical implications. Doctrinally, the phrase attempts to define the paradigm forum for the exercise of specific personal jurisdiction. Rhetorically, the phrase focuses on plaintiffs’ choice of forum, implicitly classifying them and their lawsuits as good or bad, meritorious or frivolous, based upon where they choose to bring suit. The word “natural” has all sorts of culturally significant connotations, and the word easily escapes its doctrinal context to imply much that is noteworthy about the Court’s attitude toward personal jurisdiction. These connotations, in turn, reveal assumptions embedded in the term, and implications following from the term, which lend themselves to interpretation and analysis. The assumptions underlying the phrase, and the implications that flow from it, can help us understand the Court’s ongoing struggle to answer the question that lies at the heart of personal jurisdiction doctrine: “[W]hat happens when a corporation, created and able to operate thanks to the laws of one State, seeks the privilege of sending agents or products into another State?”^[10] By holding the phrase “the most natural state” up to the prism of analysis, we can throw light on where we’ve been and where we may be going with personal jurisdiction.

II. A Short History of Personal Jurisdiction

In 1945, the U.S. Supreme Court inaugurated a new era in personal jurisdiction when it decided International Shoe Co. v. State of Washington.^[11] Pursuant to this regime, exerting personal jurisdiction over an out-of-state citizen satisfied Due Process if the injury occurred in the forum and the injury arose out of or related to the defendant’s contacts with the forum. The type of contacts necessary for this exertion of jurisdiction was termed “minimum contacts,”^[12] and this exertion of personal jurisdiction became known as “specific jurisdiction.”^[13] The International Shoe regime also made it clear that exerting personal jurisdiction over an out-of-state citizen satisfied Due Process even if the injury did not arise out of or relate to the defendant’s forum state contacts as long as the defendant had “continuous and systematic” contacts with the forum state.^[14] This exertion of jurisdiction came to be known as “general jurisdiction.”^[15]

The International Shoe era lasted almost seventy years, until 2014, when the U.S. Supreme Court decided Daimler AG v. Bauman.^[16] There, the Court held that states where the injury did not arise could no longer exert personal jurisdiction over out-of-state citizens consistent with the Due Process Clause even if the defendant had “continuous and systematic” contacts with the forum state.^[17] Instead, such general jurisdiction over out-of-state defendants was proper in only two states: for corporations, the state of incorporation and the state in which the corporation has its principal place of business; for individuals, the state of domicile and the forum state, if the individual is served with process there.^[18] I have analyzed the Daimler decision in detail elsewhere.^[19] I have shown that Daimler did not establish a test for general jurisdiction, nor did it apply the Goodyear “essentially at home” test. Instead, it established a rule for general jurisdiction over foreign corporations: a court can exercise general jurisdiction over a foreign corporation in the corporation’s state of incorporation or the state in which it has its principal place of business.^[20] The Court’s attempt to ameliorate the harshness of this rule by suggesting that general jurisdiction would be proper in “exceptional case[s]” in which the corporation has sufficient contacts to render it “at home” in another state has proven to be a chimera, as predicted by Justice Sotomayor.^[21]

Post-Daimler, general jurisdiction is not determined by contacts. If there had been any doubt after Daimler, the Court eliminated it with its decision in BNSF Railway Co. v. Tyrrell.^[22] The Court held that BNSF could not be sued in Montana by residents of North Dakota and South Dakota for injuries suffered outside of Montana, even though it had 2,061 miles of track in Montana, employed 2,100 workers in Montana, operated an automotive facility there, and generated income in the state.^[23] These might well have been counted as “continuous and systematic” contacts pre-Daimler, but the Court evaluated those contacts in comparison to BNSF’s other U.S. contacts, noting that the 2,061 miles of track was “about 6% of its total track mileage of 32,500”; the 2,100 workers were “less than 5% of its total work force of 43,000”; the automotive facility was only one of twenty-four; and its Montana income was “less than 10% of its total revenue.”^[24] Dissenting from the majority’s judgment, Justice Sotomayor correctly noted, “What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.”^[25]

The upshot of Daimler was to limit personal jurisdiction over U.S. corporations to three states: (1) the state in which the cause of action arose, pursuant to specific jurisdiction; (2) the state of incorporation; and (3) the corporation’s principal place of business.^[26] Personal jurisdiction over non-U.S. corporations not having their principal place of business in a U.S. state was limited to one state: the state where specific jurisdiction could be had, i.e., the state in which the plaintiff’s cause of action could be said to “arise out of or relate to” the defendant’s forum-state contacts.^[27]

This sharp constriction of personal jurisdiction over out-of-state corporations resulted in a number of changes in personal jurisdiction analysis. First, the focus shifted from the defendant’s forum contacts to the plaintiff’s forum contacts.^[28] Second, huge national and multinational corporations that would never have questioned personal jurisdiction pre-Daimler began to do so after the “windfall” they had received in Daimler.^[29] For example, Goodyear USA never challenged the personal jurisdiction of the North Carolina courts in Goodyear Dunlop Tires Operations, S.A. v. Brown, even though Goodyear USA was not incorporated in North Carolina, did not have its principal place of business in North Carolina, nor did the cause of action arise in North Carolina.^[30] Third, as some scholars had predicted, Daimler’s restriction of general jurisdiction put added pressure on specific jurisdiction. Because plaintiffs were now foreclosed from suing large corporations where they had “continuous and systematic contacts,” they had to rely more heavily on the state where the defendant’s contacts gave rise to or related to the plaintiff’s cause of action.^[31]

These two consequences of Daimler came together to motivate creative lawyering on behalf of corporate defendants. For example, Ford Motor Company reveled in the new possibilities opened up by Daimler’s destruction of the “continuous and systematic contacts” test. Now shielded from general personal jurisdiction in every state except Delaware (its state of incorporation) and Michigan (where it has its principal place of business),^[32] Ford had an even better idea: “Let’s challenge specific jurisdiction as well! Let’s argue that we are not subject to specific jurisdiction unless our contacts with the forum state were the ‘but-for’ cause of the plaintiff’s injury! Now that the Court has loosened the reins of personal jurisdiction, let’s take the bit in our teeth and run for the fences!”^[33]

Ford’s bold gallop toward the fences led to cases like Erwin v. Ford Motor Co.^[34] There, the plaintiff was a widower whose wife had been killed when the airbag in their Ford Edge failed to deploy in an accident in Hillsborough County, Florida.^[35] The couple were “snowbirds” from Ohio.^[36] They bought the car in Ohio and drove it to Tampa. The car was neither designed nor manufactured in Florida and had never been serviced in Florida by any Ford dealership.^[37] The plaintiff sued Ford Motor Company in the U.S. District Court serving Hillsborough County,^[38] alleging that the airbag in the Ford Edge was defective. Ford moved to dismiss on the ground that nothing it had done in Florida had caused decedent’s injuries because “the 2010 Ford Edge was not manufactured, sold, or serviced by Ford in the state of Florida.”^[39] Ford’s extensive contacts with Florida—including advertising Ford cars and maintaining an extensive network of dealerships to sell and service Ford cars—had nothing to do with the decedent’s injuries.^[40] Therefore, Ford argued, because its actions in Florida were not the “but-for” cause of the harm, the plaintiff’s case did not arise out of, or relate to, the cause of action, and specific jurisdiction was unavailable.^[41]

However, as absurd as this argument seems to those of us brought up on the continuous and systematic contacts test for general jurisdiction, it did not seem absurd to the district court in Florida, post-Daimler. The court ruled that there was no general or specific personal jurisdiction over Ford in the state where the accident occurred.^[42] Subsequent to this ruling, the court transferred the case to Delaware, much to the surprise of the district judge there.^[43] And, just to show that it fully appreciated its favored legal status after Daimler, Ford argued that the court should apply the law of Michigan instead of the law of Florida to the dispute.^[44] The district judge declined Ford’s invitation, noting that it was merely “fortuitous . . . that this case is pending in the District of Delaware,” and holding that the law of Florida would govern.^[45] The absurdity of trying a Florida car wreck in Delaware was the threat addressed by the Court in Ford Motor Company v. Montana Eighth Judicial District Court.^[46]

III. The Court’s Decision in Ford Motor Company

Ford’s successful resistance to personal jurisdiction in cases like Erwin set the stage for its argument in the U.S. Supreme Court.^[47] The facts of the consolidated cases in Ford were analogous to the facts in Erwin. In the lead case, the plaintiff’s decedent resided in Montana and was injured in Montana when the tread on the tire of her Ford Explorer separated, resulting in a fatal rollover crash. The plaintiff filed suit in Montana.^[48] In the consolidated case, Bandemer, the plaintiff, a resident of Minnesota, was injured there when the airbag on the Crown Victoria in which he was riding failed to deploy.^[49] The plaintiff filed suit in Minnesota. Ford moved to dismiss each case, making the same argument that had succeeded in Erwin: Ford’s contacts with the forum state did not cause the plaintiff’s injuries, and therefore, the plaintiffs’ causes of action did not arise out of or relate to Ford’s forum contacts. Both vehicles were designed in Michigan.^[50] The Explorer was manufactured in Kentucky; the Crown Victoria, in Canada. Ford did not sell the vehicles to the plaintiffs. The Explorer was first sold in Washington; the Crown Victoria, in North Dakota.^[51] Ford’s contacts with the vehicles took place outside the forum states. Just as in Erwin, Ford had plenty of contacts in the forum states—advertising, selling, and servicing Ford vehicles—but those contacts did not cause plaintiffs’ injuries.^[52]

Although Ford’s optimism might have been warranted, given the sea change wrought by Daimler and the success of its argument in cases like Erwin, the Court rejected Ford’s argument and ruled for the plaintiff for the first time since before Daimler. In Ford Motor Company, Justice Kagan assumed the task of trying to untangle a mess she helped to create in Daimler. Before that case, Ford’s undoubted continuous and systematic contacts with Montana and Minnesota would have given those states general personal jurisdiction over Ford regardless of whether those contacts had anything to do with the specific accidents. Post-Daimler, only specific jurisdiction was available in the forum states. Thus, Ford’s contacts with Montana and Minnesota had to give rise to or relate to the plaintiffs’ causes of action. Because Ford never did anything in either Montana or Minnesota to cause the plaintiffs’ injuries, the plaintiffs had to prove that Ford’s contacts with those states related to their causes of action.^[53]

In order to hold Ford to jurisdiction in the forum states, Justice Kagan had to engage in reasoning that was tangled, if not tortured. First, she parsed the phrase “arise out of or relate to the defendant’s contacts with the forum.”^[54] The former, she explained, requires causation; the latter does not.^[55] To explain what is required by the concept of “relate to,” Justice Kagan turned to World-Wide Volkswagen, pointing to the Court’s explanation of why the Oklahoma court could exercise personal jurisdiction over Audi and Volkswagen: “specific jurisdiction attaches . . . when a company like Ford serves a market for a product in the forum State and the product malfunctions there.”^[56] Notably missing from this formulation is the factor that will become crucial later in the opinion: the plaintiff’s residence in the forum state. In World-Wide, of course, that factor was not present, since the plaintiffs were in transit from their old home in New York to their new home in Arizona when the wreck occurred in Oklahoma.^[57]

Having defined “relating to” as “seeking to serve a market,” Justice Kagan embarked on a description of “the business [Ford] regularly conducts in Montana and Minnesota.”^[58] She noted Ford’s extensive advertising of both Explorers and Crown Victorias in both states, their sales of new and used Explorers and Crown Victorias through their dealerships in both states, their provision of repair services for “Ford cars” through their dealerships in both states, and their sales of replacement parts for Fords in both states.^[59] These activities related to the plaintiffs’ causes of action, according to Justice Kagan, because “Ford had advertised, sold, and serviced those two car models in both States for many years.”^[60] Seemingly caught up in trying to cement Ford’s forum-state contacts to the plaintiffs’ causes of action, she noted in dicta that the result might differ if the wrecks had involved models not advertised by Ford in the forum state.^[61]

We should pause here to consider why this dicta is flawed as a matter of logic and scary as a harbinger of future holdings. At what level of specificity must the advertising be for it to count as a contact? To use the Crown Victoria as an example, Ford produced three different models of automobiles on the “Panther platform”: the Ford Crown Victoria, the Mercury Marquis, and eventually the Lincoln Towncar.^[62] The Crown Victoria also came in a souped-up police version,^[63] which could be purchased by civilians at auction after they were decommissioned.^[64] Over the thirty-three-year life of the Crown Victoria, consumers could purchase versions with engines ranging from a 4.9-liter or 5.8-liter small-block V-8 in 1979, to a SOHC 4.6-liter V-8 beginning in 1992.^[65] There were also numerous trim package options during the history of Crown Victoria.^[66] Does the manufacturer have to advertise the exact make, model, engine type, and trim package of the car ultimately purchased in order for the advertising to count? This question might become more urgent if the plaintiff had wrecked a Ford Mustang, which has been produced in the following versions: Boss, Mach, Mustang II, King Cobra, Cobra II, Mustang SVO, Mustang LX, Mustang GT, SVT Cobra, Mach-E, and Shelby.^[67] The Mustang SVO was a limited production model; in 1984, Ford produced only 4,508 of the cars,^[68] compared to production of 142,233 of its other Mustang models.^[69] In 1985, Ford sold only 1,954 SVO Mustangs, and in the last year of production, 1986, only 3,382 were sold.^[70] As one commentator notes, Ford’s lack of marketing played a role in the poor sales of the SVO:

As to why the Mustang SVO was not more successful in the marketplace, the reasons are, at best, complex and layered. Convinced the car would “sell itself,” once word spread of its performance capabilities, neither [Ford’s Special Vehicle Operations group] nor Ford made much of an effort to market the car or to train dealers in selling the unique Mustang. Worse, many salespeople steered customers in the direction of the less expensive (but far more familiar) Mustang GT, leaving the SVO to play the role of the overbred redheaded step child.^[71]

What if the wrecked vehicles in Ford Motor Company had been Mustang SVOs? It is unlikely that any component of the vehicle—much less the defective component—was manufactured in Minnesota or Montana. And the plaintiffs would probably have purchased the cars out of state, given their limited availability. Would the plaintiff have to prove how heavily Ford advertised this limited-production car in each of the forum states in order to show that Ford’s contacts related to the plaintiffs’ causes of action?^[72]

This question was analyzed by the Washington Court of Appeals in Downing v. Losvar. There, the defendant, Textron, Inc., successor to the Cessna Aircraft Company, was sued when a Cessna T182T Skylane crashed in Washington, killing its pilot and passenger.^[73] Textron, a Delaware corporation with its principal place of business in Kansas, challenged the court’s personal jurisdiction. Citing Ford Motor Company, Textron argued that its only contacts with Washington that should count for personal jurisdiction purposes were its sales and service of the T182T Skylane, not its sales and service of the many other models of Cessna aircraft.^[74] Rejecting this argument, the court observed, “[t]he Supreme Court sometimes referred to the marketing of a product, i.e., a single product line, but the Court did not base its ruling on whether Ford marketed the model of car involved in the accidents in the respective states.”^[75] Continuing, the court mused:

We wonder where Textron Aviation’s product-specific test would end. Presumably, the colors of its planes would make no difference for purposes of minimum contact analysis. But Textron Aviation might argue that we should only include the presence of a particular year’s model when assessing contacts. Regardless, in its promotion of sales and service, Textron Aviation did not distinguish between the various models of planes. Textron Aviation promoted itself holistically as a worldwide manufacturer and servicer of aircraft.^[76]

The Sixth Circuit likewise rejected a product similarity argument in Sullivan v. LG Chem, Ltd.^[77] There, the plaintiff was injured when the defendant’s lithium-ion vaping battery, model 18650, exploded in his pocket. The defendant, a Korean corporation, contested personal jurisdiction in Michigan. Although the defendant shipped enough batteries into Michigan to constitute purposeful availment, the defendant argued that these contacts did not relate to the plaintiff’s cause of action because it had never shipped model 18650 batteries to Michigan for consumer use.^[78] The defendant distinguished Ford Motor Company on the ground that “unlike [the defendant], Ford marketed the exact same vehicles that injured the plaintiffs to consumers in the forum states.”^[79] The Sixth Circuit rejected this view of Ford as too narrow.^[80] It was enough, said the court, that the defendant had made two shipments of its batteries into Michigan, one to a vacuum cleaner manufacturer and one to its own subsidiary, even though none of the batteries was intended for individual consumer use.^[81]

Although the courts in these two cases successfully turned aside the argument based on Justice Kagan’s reservation of the question, Textron’s and LG Chem’s arguments demonstrate that the Court has, once again, handed large multinational corporations a potentially viable argument against personal jurisdiction based on the distinction among its product lines. Indeed, the necessity for even discussing this issue demonstrates the damage that Daimler wrought on personal jurisdiction over large national corporations like Ford Motor Company. A company having continuous and systematic contacts in a state should be subject to jurisdiction there, without imposing on the plaintiff the burden of proving how the company’s contacts caused their harm or how the company’s forum contacts motivated the plaintiff’s behavior.

Apparently not realizing that the dicta regarding product similarity introduced complications into her reasoning, Justice Kagan identified the “only complication” in the case: Ford did not sell the specific vehicles to the plaintiffs within the forum states. Although the Court had already held that Ford’s activities with respect to other Explorers and Crown Victorias in the forum states provided the necessary relation to the plaintiffs’ causes of action, Justice Kagan here suggested that the necessary relationship might also be provided by the specific plaintiffs’ reaction to that marketing and provision of repair services and parts.^[82] The plaintiffs could have decided to buy their cars because of Ford’s forum-state activities.^[83] There were no allegations or evidence to support this speculation, and Justice Kagan cautioned that such allegations or evidence is not required.^[84] Finally, the Court observed, the possibility that the plaintiffs were motivated to buy Ford vehicles “by the reach of Ford’s Montana and Minnesota contacts . . . underscore[s] the aptness of finding jurisdiction here.”^[85] Despite the Court’s disavowal of the “continuous and systematic contacts” test in Daimler, Justice Kagan’s reliance here on Ford’s forum-state contacts to show relatedness edges close to a “loose and spurious form of general jurisdiction.”^[86]

Having satisfied itself that the plaintiffs’ cause of action related to Ford’s forum contacts, the Court summarized its reasoning:

But here, the plaintiffs are residents of the forum States. They used the allegedly defective products in the forum States. And they suffered injuries when those products malfunctioned in the forum States. In sum, each of the plaintiffs brought suit in the most natural State—based on an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place” there.^[87]

This phrase startles on two levels. First, according to Westlaw, it’s the first time the Court had ever used that phrase.^[88] Second, the phrase bespeaks a vague test for establishing personal jurisdiction. What does it mean to sue in “the most natural state”? Is the plaintiff’s state of residence the “most natural state” for a lawsuit? Or is it the state where the harm occurs? Or must these two locales coincide? What if they are different?

Second, rhetorically, the phrase established a normative test for the type of plaintiffs who can be rewarded with personal jurisdiction in their chosen forums. The description of a chosen forum as “the most natural state” embodies a number of assumptions and implications that impugn the motives of certain plaintiffs and paint their lawsuits as undeserving of the Court’s attention. Rhetorically, the phrase underscores the Court’s recent judgmental obsession with plaintiffs’ entitlement to a forum, in contrast to the Court’s traditional focus on whether defendants can fairly and reasonably be held accountable in a given forum. The phrase helps explain the recent past while also, perhaps, foreshadowing the continuation of the Court’s restrictive and punitive attitude toward plaintiffs.

Doctrinally, the phrase helps us understand the Court’s current requirements for the exercise of specific jurisdiction. In context, the phrase sums up the reasons why Montana and Minnesota could exercise jurisdiction over Ford:

But here, the plaintiffs are residents of the forum States. They used the allegedly defective products in the forum States. And they suffered injuries when those products malfunctioned in the forum States. In sum, each of the plaintiffs brought suit in the most natural State—based on an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place” there.^[89]

Justice Kagan does not say “Montana and Minnesota are the most natural states for these lawsuits.” Instead, she says, “each of the plaintiffs brought suit in the most natural State,” emphasizing the plaintiff’s agency in choosing a forum.^[90] These states are permissible forums because (1) the plaintiffs are residents of the forum states; (2) the plaintiffs used the defendant’s products in the forum states; (3) the defendant’s products malfunctioned in the forum states; and (4) the plaintiffs suffered injuries in the forum states.

Still, it is not clear that all four of these factors must coincide in order to justify personal jurisdiction. The use of the adjective “most” implies that there is a range of “natural” states in which to bring suit, and here the forum state is most natural because the plaintiff is a resident of the forum state, used the car in the forum state, got into an accident while using the defendant’s car in the forum state, and sued in the forum state. How many of these factors must be present to render the forum a sufficiently “natural” state in which to sue?

In the lower courts, Westlaw reports that twenty-two state and federal cases have quoted the phrase “the most natural state” from Ford.^[91] Four salient patterns emerge from these cases: nonresident plaintiffs sue nonresident defendants but the injury did not occur in the forum state; nonresident plaintiffs sue nonresident defendants where the injury occurred; resident plaintiffs sue nonresident defendants where the injury occurred; and resident plaintiffs sue nonresident defendants but the injury did not occur in the forum state.

The first type of case, involving nonresident plaintiffs suing nonresident defendants in a state where the plaintiff’s injury did not occur, potentially represents a suit in the least “natural” state.^[92] For example, in Kennedy v. Crothall Healthcare, Inc., the Pennsylvania court dismissed the complaint against General Electric, a citizen of New York and Massachusetts, and its subsidiary, Datex, a citizen of Delaware and Wisconsin,^[93] for lack of personal jurisdiction.^[94] The plaintiff’s decedent, a Florida resident, had suffered catastrophic injuries during a routine tonsillectomy in Florida when an anesthesia machine manufactured by Datex malfunctioned. Citing Ford Motor Company, the court rejected the plaintiff’s argument that her decedent’s injury in Florida related to GE’s and Datex’s activity in Pennsylvania because payment by the Florida hospital for the anesthesia machine was made to a Bank of America lockbox in Pennsylvania.^[95] The court held that this fact did not relate to the decedent’s injury in Florida because it was merely fortuitous that payment was made in Pennsylvania, rather than another state.^[96] The court also suggested that the site of payment might be related to a contract action in contrast to a products liability action, noting that the machine was neither designed, manufactured, nor serviced in Pennsylvania.^[97] In response to plaintiff’s argument that Pennsylvania was the only state in which she could sue all three parties responsible for the injury,^[98] the court helpfully opined that Florida was the “most natural State” for her suit.^[99]

Similarly attenuated contacts with the forum state tolled the death knell for Mexico’s lawsuit against several gun manufacturers in Massachusetts. In Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., the government of Mexico sued seven gun manufacturers and one wholesaler for injuries to its citizens arising from the illegal trafficking of guns to Mexico.^[100] Six of the defendants, all nonresidents of Massachusetts, moved to dismiss for lack of personal jurisdiction.^[101] Because general jurisdiction in Massachusetts was no longer available for any of these defendants, regardless of the number of guns sold there or the manufacturers’ marketing and other activities there, Mexico relied upon specific jurisdiction.^[102] Although Mexico was unable to “identif[y] any specific firearm, or set of firearms, that was sold in Massachusetts and caused injury in Mexico,” it presented expert testimony that guns sold in Massachusetts likely ended up in Mexico and caused harm there.^[103] Mexico’s expert, an economist, relied upon two datasets of guns recovered in Mexico, tracing them back to sales in Massachusetts and extrapolating from that data an estimate of the number of the manufacturers’ guns that ended up in Mexico.^[104] However, the expert did not render an opinion regarding the number of injuries caused by these guns.^[105] The court dismissed the complaint, holding that the expert testimony was too speculative to show a relationship between Mexico’s injuries and the sale of defendants’ guns in Massachusetts: “At best, plaintiff has alleged that the type of products sold by the six moving defendants in Massachusetts are the same type of products that caused its injuries in Mexico.”^[106] Addressing Ford Motor Company, the court emphasized that the plaintiffs there were injured in the forum state; here, in contrast, there was no alleged injury to any Massachusetts resident.^[107]

In Israel v. Alfa Laval, Inc., a resident of Idaho sued a Virginia corporation in Florida, alleging that he developed lung cancer after using defendant’s machinery while in the U.S. Navy.^[108] The plaintiff’s theory was that one of the Navy ships on which he used defendant’s machinery was stationed in Florida for two years.^[109] However, the parties agreed that the installation of the defendant’s equipment on that ship would have occurred in Pennsylvania.^[110] The court held that it did not have personal jurisdiction over defendant because the plaintiff had not sued in the “most natural state.”^[111] Distinguishing the case at bar from Ford Motor Company, the court reasoned as follows:

Israel is not a Florida resident. It is uncertain whether he suffered injury in Florida. And he cannot show that Alfa Laval or its predecessors served a market in Florida for the type of product at issue in this case. The only fact linking Israel’s claims against Alfa Laval to this forum is his brief stay on the USS Pawcatuck while it was docked in Jacksonville. And this connection to Florida came about only because the Navy—a third-party over whom Alfa Laval exerts no control—directed the ship to Florida twenty years after Alfa Laval’s predecessors allegedly provided the offending equipment. Such a serendipitous connection does not warrant the exercise of personal jurisdiction.^[112]

Similarly, in Rivers v. Nice Recovery Systems, the U.S. District Court for Rhode Island granted the defendant’s motion to dismiss.^[113] In that case, the defendant was incorporated in Delaware with its principal place of business in Colorado.^[114] The plaintiff was a resident of Massachusetts.^[115] He traveled to Rhode Island to see a doctor, who prescribed the allegedly defective medical device.^[116] The plaintiff returned to Massachusetts, leased the medical device from a Connecticut distributor, and used it at home in Massachusetts, where he was injured.^[117] Therefore, the only connection between the lawsuit and Rhode Island was the doctor who prescribed the medical device.^[118] Distinguishing both Ford Motor Company and World Wide Volkswagen, the court stated cogently, “[t]he commonality in such cases is that a product from out-of-state caused injury ‘there’—in the forum state. There’s no ‘there’ here.”^[119]

In contrast, in Choi v. General Motors, LLC, the court denied the motion to dismiss.^[120] The plaintiff, a Colorado resident, purchased the defective Suburban in California from a California dealer, but the vehicle was registered and licensed in Colorado.^[121] On a Colorado freeway, the Suburban began to “yaw,” and overturned, severely injuring the plaintiff. The plaintiff sued General Motors (GM), a non-California resident, in California.^[122] Of course, prior to Daimler, GM would have been subject to general jurisdiction in California because it undoubtedly had continuous and systematic contacts with that state, so an examination of the relatedness prong of specific jurisdiction would have been unnecessary. But GM argued that personal jurisdiction was improper in California because, as Justice Kagan suggested in Ford Motor Company, filing suit in the state of first sale—Washington and North Dakota in Ford—would “undermine, rather than promote . . . the Due Process Clause’s ‘jurisdiction-allocating function.’”^[123] Judge Wu rejected this argument, recognizing that forums can exist on a continuum of naturalness: “[The fact] [t]hat Montana and Minnesota might have been ‘the most natural State[s]’ for personal jurisdiction in the cases before the Supreme Court, does not suggest exclusivity insofar as personal jurisdiction is concerned.”^[124] According to this court, some permissible forums are more natural than others, and the plaintiff does not have to choose the “most natural” one.

When a nonresident sues a nonresident defendant in the state where injury occurred, courts are willing to find jurisdiction.^[125] In Sawyer v. Cooper Tire & Rubber Co., the Alabama Supreme Court faced a nonresident’s suit against a nonresident defendant.^[126] The decedent, a Florida resident, was killed in Mobile County, Alabama when the SUV in which he was riding blew a tire and flipped.^[127] When his estate sued Cooper, the defective tire manufacturer, in Alabama, Cooper moved to dismiss for lack of personal jurisdiction. The plaintiff presented evidence from the driver’s mother that she had bought the car, as well as the defective tire, in Alabama and that all maintenance on the car had been done in Alabama.^[128] However, Cooper presented evidence that it had not sold the precise type of tire involved in the wreck—a CS4 Touring tire P235/65R17—in Alabama in the three-year span before and after the wreck occurred, although 1% of its nationwide tire sales had occurred in Alabama.^[129]

Unfortunately, the Sawyer court avoided the issue of whether the defective product must be identical to the product sold in the jurisdiction by the defendant. The court held that the time period on which Cooper focused was too short. The fact that Cooper had not sold the CS4 Touring tire in Alabama between 2016 and 2018 was not dispositive. Noting that the Supreme Court in Ford stated that Ford had marketed the Crown Vic and the Explorer in Montana and Minnesota, respectively, for “two decades,” the court indicated that if Cooper had marketed the CS4 Touring tire in Alabama at any time, its efforts would forge a sufficient relationship with the accident.^[130] Because the plaintiff alleged that such sales had occurred, and because Cooper failed to dispute that allegation, the court assumed that the CS4 Touring tire had been sold in Alabama and thus avoided addressing whether sales of other Cooper tires would have been sufficient. Because the plaintiff was injured in Alabama and the defective tire had been sold and used in Alabama, the court held that Cooper was subject to jurisdiction there.^[131]

The Alabama Supreme Court agreed with recent commentators that application of the Ford test has proved to be less than pellucid.^[132] Justice Cook, author of the majority opinion, took the unusual step of writing a separate concurrence to explain his proposed framework for applying Ford in future cases. He proposed two alternative tests, or “metrics,” either of which would satisfy the Supreme Court’s concern in Ford with “fairness and federalism.”^[133] One of these tests focuses on “the most natural State,” which Justice Cook defines by contrast with the facts in Bristol-Myers Squibb: “[T]he plaintiffs did not purchase the product in the forum state, did not use the product in the forum state, and were not even residents of the forum state.”^[134] Although Justice Cook’s emphasis on purchase and use of the product would explain the result in Sawyer, his inclusion of the plaintiff’s residence as a relevant factor runs contrary to the Sawyer holding, since the plaintiff there was a resident of Florida, not Alabama. Thus, it seems that Justice Cook’s “most natural state” metric requires only that the forum state be the site of the product’s purchase and use (and presumably, its malfunction), thus permitting specific jurisdiction in the state where the plaintiff is injured, regardless of the plaintiff’s residence.

When a forum state resident sues a nonresident defendant, courts have little trouble finding jurisdiction if the injury occurred in the forum state.^[135] For example, in Galier v. Murco Wall Products, Inc., the plaintiff, a resident of Oklahoma, sued Murco, a Texas corporation, in Oklahoma, alleging that he was injured when he was exposed to defendant’s asbestos products in Oklahoma.^[136] The Oklahoma Supreme Court affirmed the trial court’s assertion of personal jurisdiction over Murco, analogizing this case to Ford Motor Company:

Galier is a resident of Oklahoma. He was exposed to the defective product in Oklahoma. He suffered injuries from the product in Oklahoma. In sum, Galier “brought suit in the most natural State—based on an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place’ there.”^[137]

Similarly, in Castillero v. Xtend Healthcare, LLC, the plaintiff was a resident of New Jersey who worked at a call center in New Jersey managed by the defendant, a Tennessee corporation.^[138] When she was fired, she sued the corporation in New Jersey. The court denied the defendant’s motion to dismiss for lack of personal jurisdiction, holding that New Jersey was the most natural state for the lawsuit: “Castillero’s claims arise out of Xtend’s contacts with New Jersey because Castillero is a New Jersey resident who worked in New Jersey for Xtend’s virtual call center and was then fired in New Jersey at Xtend’s direction . . . .”^[139]

A third example is Trio v. Turing Video, Inc., in which a resident of Illinois who worked as a cake decorator in Illinois sued the defendant, a California corporation.^[140] During the COVID-19 pandemic, plaintiff was required to use the defendant’s product, the Turing Shield, which collects and records biometric data on employees. Unbeknownst to plaintiff, her data was sold to third parties without her consent, so she sued in Illinois for various torts.^[141] Analogizing the case to Ford Motor Company, the court denied the defendant’s motion to dismiss for lack of personal jurisdiction, stating that “because Plaintiff’s injuries arise from her use of the Turing Shield in Illinois without the protections afforded to her under Illinois law, she brought this lawsuit in ‘the most natural state.’”^[142]

When the suit is brought by a forum resident against a non-resident, but the injury does not occur in the forum state, the results are more inconsistent. In Bibbs v. Molson Coors Beverage Co., a Texas truck driver brought suit in Texas against the defendant, incorporated in Delaware with its principal place of business in Illinois, as the result of a trucking accident that occurred in West Virginia.^[143] Molson hired plaintiff’s employer, a Texas trucking company, to transport a load of goods from Virginia to Texas. But the trailer was packed and inspected by Molson’s employees. As the plaintiff was driving through West Virginia, the load shifted, causing the truck and trailer to overturn.^[144] The plaintiff sued Molson in Texas, his home state. Molson moved to dismiss for lack of personal jurisdiction, arguing that Texas was not the “most natural state” for the suit because the accident did not occur there. In Molson’s view, only Virginia, where the trailer was loaded, or West Virginia, where the accident occurred, could exercise personal jurisdiction in this case.^[145] The court rejected Molson’s argument on two grounds. First, the court noted that the truck was headed for Texas when it wrecked; thus, the accident related to Molson’s contacts with Texas, which included operating a large brewing facility in Fort Worth as well as hiring a Texas trucking company to transport the beer in question.^[146]

Second, the court noted that “the claim at issue in Ford was products liability, rather than negligence, as it is here” and added, in something of a non sequitur, “[b]ecause the elements of these tort claims are different, the Court cannot conclude that the relation between the underlying litigation and contacts in the forum must be identical.”^[147] The tortured reasoning of the court in this case again illustrates the downside of Daimler’s elimination of the “continuous and systematic” contacts test for general jurisdiction. Molson undoubtedly had sufficient contacts with Texas to be amenable to general jurisdiction pre-Daimler—it operated a large brewery in Fort Worth that employed 420 workers and undoubtedly sold millions of dollars’ worth of its beer in Texas—and if it were subject to general jurisdiction, there would be no need to evaluate whether the plaintiff’s cause of action arose out of or related to those forum-state contacts.^[148]

Other courts that have addressed suits by residents against non-resident defendants when the injury did not occur in the forum state have focused on the interstate federalism aspect of due process. In Turner Specialty Services, LLC v. Horn, a Texas resident died at an Alabama job site when the protective helmet he was wearing malfunctioned.^[149] He had been recruited, trained, and transported to the job by defendant Turner Specialty Services, a Louisiana LLC headquartered in Baton Rouge.^[150] The defendant argued that Texas was not the “most natural State” for the suit because the injury occurred in Alabama. Initially, the court noted that the defendant’s argument equated Alabama with Montana and Minnesota and Texas with Washington and North Dakota (the states where the vehicles in Ford Motor Company were sold). Stating that this comparison was “not apt,” the court noted:

Justin [Horn] was not a resident of Alabama but a resident of Texas. Justin had only been in Alabama for 10 days when he died performing a job for which he had been recruited, hired, and partly trained in Texas. In short, the facts here are not as clear-cut with respect to an interstate federalism analysis as they were in Ford.^[151]

In addressing the defendant’s argument, the court felt constrained by Justice Kagan’s insistence on the salience of interstate federalism in justifying specific jurisdiction.^[152] In Ford Motor Company, interstate federalism favored jurisdiction in the plaintiffs’ states of residence because both of those states had an interest in “providing [its] residents with a convenient forum for redressing injuries inflicted by out-of-state actors,” as well as an interest in “enforcing their own safety regulations.”^[153] The Texas court concluded that “Texas has an interest in providing a convenient forum for its residents, when, as here, the resident was recruited, hired, and trained in Texas by an out-of-state actor who then transported the resident to another state to perform a short-term job in a potentially lethal environment.”^[154] According to the Texas court, therefore, the “most natural state” for this plaintiff’s lawsuit was the decedent’s state of residence, not the state of injury.

However, some courts have held that interstate federalism counsels against exercising jurisdiction in these circumstances. In Brandon v. Wright Medical Technologies, Inc., a Nevada resident sued a non-resident corporation in Nevada, alleging that she was injured when she underwent hip replacement surgery.^[155] The surgery had taken place in California five years earlier, when she lived in California. She subsequently moved to Nevada and, two years later, returned to California for revision surgery.^[156] The court denied personal jurisdiction over Wright, reasoning as follows:

Plaintiff, while currently a resident of Nevada, had her allegedly defective hip implanted in California, suffered her injuries for five years in California, and received corrective surgery in California. Although Plaintiff spent two years in Nevada with the device and received one bloodwork treatment in the State, Nevada is not the natural state in which to sue because it has little interest in protecting California residents from defective surgical implants received there.^[157]

Similarly, in Adams v. Aircraft Spruce & Specialty Co., a resident of Connecticut was killed when the plane he was riding in took off and crashed in New York allegedly due to a defective carburetor overhauled by defendant, a California corporation.^[158] The defendant had sold the defective carburetor to the plane’s owner in New York, and it had sold twenty-five carburetors to Connecticut customers between 2008 and 2017.^[159] Assessing Ford Motor Company’s similarity requirement, the Connecticut Supreme Court noted that these sales do not “fairly imply that the defendant marketed, sold, and/or serviced defective part number 10-4894-1 or any other products that are similarly defective in Connecticut.”^[160] Of course, Ford Motor Company does not require that the defendant’s other forum contacts involve similarly defective products; if it did, then the plaintiffs there would have had to show that Ford sold Crown Vics and Explorers in Montana and Minnesota that likewise had defective tires and airbags. Nevertheless, the Connecticut Supreme Court concluded that the defendant’s sale of the twenty-five presumably non-defective carburetors in that state was insufficient to render Connecticut the “most natural state” since neither the use of the product, nor the malfunction, nor the resulting injury occurred in Connecticut.^[161]

For the Adams court, it was the forum state’s interest in the litigation that made the location of the injury relevant. As the court read Bristol-Myers Squibb and Ford Motor Company, “forum residence may bolster other factors that support specific jurisdiction but is not a sufficient basis, in and of itself, to forge the necessary connection between the defendant’s forum contacts and the specific litigation.”^[162] Thus, in denying personal jurisdiction, the Adams court recognized not only the Court’s recent interest in the plaintiff’s connections to the forum, but also the reinvigorated role of interstate federalism. As the court observed:

The integration of interstate federalism concerns into the case–linkage inquiry in Bristol-Myers and Ford Motor Co. requires an activity or occurrence in the forum that is sufficiently material to the litigation and, in turn, to the forum’s interest in that litigation. . . . The forum state’s interest is at its zenith when either tortious conduct is committed in the forum or tortious injury occurs in the forum.^[163]

Thus, a survey of lower court cases that invoke “the most natural state” shows that the two most important factors identified in Ford Motor Company are the plaintiff’s residence and injury in the forum state.^[164] When both coincide, the lower courts are unanimous in finding jurisdiction. When only one is present, however, courts have looked to considerations of interstate federalism to determine whether the forum state’s interest justifies jurisdiction.

The lower courts’ consideration of the state’s interest in policing out-of-state defendants reflects the Court’s recent emphasis on interstate federalism and the resulting explicit antipathy to forum shopping. Indeed, in Ford Motor Company, Justice Kagan distinguished that case from Bristol-Myers Squibb, not on the basis of the defendant’s differing contacts with the forum state—both giant corporations undoubtedly had continuous and systematic contacts with the forum states—but rather on the basis of the plaintiff’s relationship to the forum state. In Justice Kagan’s words, the plaintiffs in Bristol-Myers Squibb:

[W]ere not residents of California. They had not been prescribed Plavix in California. They had not ingested Plavix in California. And they had not sustained their injuries in California. In short, the plaintiffs were engaged in forum-shopping—suing in California because it was thought plaintiff-friendly, even though their cases had no tie to the State.^[165]

As interpreted by Justice Kagan here, Bristol-Myers Squibb correctly held that the non-California plaintiffs’ perceived forum shopping outweighed the vast extent of the defendant’s contacts with California, the interstate judicial system’s interest in efficient resolution of conflicts, and the non-California plaintiffs’ interest in economical resolution of their disputes.

Doctrinally, the most natural state is the one in which the plaintiff’s residence and site of injury coincide.^[166] Rhetorically, however, the most natural state is the one that is not shopped for. A plaintiff who does not shop for a forum has filed in the most natural state and is therefore, by association, natural. Logically, the converse must also be true. A forum that is shopped for is unnatural and, by association, a plaintiff who files there is unnatural.

Thus, rhetorically, the “most natural state” implies a more disturbing and more judgmental personal jurisdiction regime. If some forums are natural, some are unnatural. And there is an implied judgment about that plaintiff—they must be very bad to choose an unnatural forum—as opposed to the praiseworthy plaintiff, obedient to the natural order, who chooses the “most natural state” in which to sue. An example of the unnatural, disobedient plaintiff is found in Daimler.^[167] Because the Argentinians sued in an unnatural state—a state where they did not reside and had suffered no injury—they were subjected to Justice Ginsburg’s angry, or at least, annoyed tone, referring to the plaintiffs’ view of personal jurisdiction as “sprawling,”^[168] “unacceptably grasping,” and “exorbitant.”^[169]

The word “natural” has at least four primary meanings, all of which are implicated by Justice Kagan’s use of the word. The denotation that Justice Kagan probably intended by the word is “[e]xpected and accepted.”^[170] This definition suggests a logical flow of consequences. If a plaintiff’s residence and injury coincide in a given state, it follows logically that that state is the “most natural” one in which to sue. And, in fact, this definition resonates with the Court’s discourse about what defendants are entitled to under the Due Process Clause. They should “expect” and “accept” that they can be sued in the state where the plaintiff resides and where the injury occurred.

The problem is that words have connotations in addition to denotations, and the word “natural” has several connotations that exist in tension with its probable intended meaning in this context. One meaning of “natural” is simply “[p]resent in or produced by nature,” as “a natural pearl.”^[171] We might think that this meaning is irrelevant to the phrase in the civil procedure context, but this meaning of “natural” has acquired positive connotations in contemporary society, as in “natural foods.” This meaning implicates yet another definition: “Not altered, treated, or disguised.”^[172] Thus, “no artificial ingredients” is synonymous with “natural,” and carries a positive connotation, as opposed to “artificially flavored” or “artificially colored.” Natural foods are pure and healthy; unnatural foods, or artificial foods, are less healthy or even unhealthy.

This definition calls to mind the primordial State of Nature posited by eighteenth-century philosophers like John Locke and Thomas Hobbes. According to these philosophers, human society is the result of humans’ realization that the state of nature in which they originally lived was inadequate, although not entirely lawless.^[173] For Locke, the state of nature is one of perfect freedom and equality of all persons, with the caveat that humans in the state of nature are governed by the law of nature:

But though this be a state of liberty, yet it is not a state of licence . . . . The state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions.^[174]

As humans began to recognize the inadequacy of the state of nature, they entered into the famous “social compact” and civil society developed. This distinction between the state of nature and civil society is pervasive in eighteenth century philosophy. Even William Blackstone, writing in mid-century, took this distinction as one foundation of his explication of English law. At times he uses the word “natural” to indicate present in or produced by nature. For example, he distinguishes between “natural persons,” who are “such as the God of nature formed us,” and “artificial” persons, which are “created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.”^[175] Similarly, in describing the power of Parliament, he declares, “[i]t can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it’s power . . . the omnipotence of parliament.”^[176]

More commonly, however, Blackstone demonstrates his awareness of the distinction between the law that reigned in the state of nature and the law that now governs civil society. He describes the criminal law as follows:

It is clear, that the right of punishing crimes against the law of nature, as murder and the like, is in a state of mere nature vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless . . . . In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy.^[177]

Blackstone emphasizes the salutary effect of civilization upon the primitive impulses of humans in the state of nature. Whereas Locke asserted that a person could meet any use of force by killing the perpetrator, Blackstone limits a person’s right to kill in self-defense to attacks that would themselves constitute capital crimes:

However just [Locke’s] conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system . . . .^[178]

A final, more mundane example of Blackstone’s recognition of the relationship between the law of nature and the laws of civil society is his description of the relationship of husband and wife, “which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”^[179] Thus, for Blackstone, the idea that something is derived from nature is not entirely positive. Natural law having proved inadequate to restrain natural impulses, society must resort to civil laws to ensure the safety and well-being of individuals.

Despite Blackstone’s skepticism about natural law, he does recognize “natural rights” in the same sense as they are recognized by our Declaration of Independence. They originate with God, they include life and liberty, and “no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.”^[180] Because these rights are literally God-given, they inhere in each human. To be human is to have natural rights. This idea that natural rights are inherent rights dovetails with another dictionary definition of “natural”: “[n]ot acquired, inherent,” as in, “[l]ove of power is natural to some people.”^[181] This definition is also implicated by Justice Kagan’s use of the word. The forum where the plaintiff’s residence and injury coincide is inherently “the most natural state.”^[182] The fitness of the forum is not an acquired characteristic, not conferred on it by the litigants or the civil justice system or the judges who declare which forums are proper. Indeed, the idea that a natural characteristic inheres in humans means that it must have been put there by a higher power—God or Nature or Reason. Just as humans are “endowed by their Creator with certain unalienable Rights,” so the “most natural forum” is endowed with its fitness by a non-human creator.^[183]

One problem with this connotation is that it suggests that our civil justice system is somehow natural, obscuring the fact that our civil justice system is not a product of nature; it is constructed by human beings as part of a complex society. If we looked to the eighteenth-century philosophers, we would see that our civil justice system, and the concept of personal jurisdiction, is part of the social compact, not a component of the State of Nature.^[184] Every aspect of our civil justice system is a product of human choices. “The most natural state” is made, not born.

Perhaps Justice Kagan is suggesting that there is a natural order that underlies our justice system, that our civil justice system is compelled by natural law. Perhaps, as humans emerged from the State of Nature, the social compact required certain choices about the proper forums for certain disputes. The specter of some sort of natural order embodied in the Due Process Clause raises yet another issue: the proper place of certain plaintiffs within the natural order. If a plaintiff sues in the most natural state, that plaintiff has honored the natural order. A plaintiff who chooses to sue in an unnatural state has violated that natural order. Doctrinally, the Court has held that the function of the Due Process Clause is to set boundaries on states’ personal jurisdiction over defendants. Indeed, Justice Kagan hurried to assure future defendants that the reasoning in Ford Motor Company embodies “real limits.”^[185] But to identify those boundaries with some sort of Natural Order of Things is to suggest that the plaintiffs who must work within those boundaries are also bound by a Natural Order of Things. In essence, by deeming certain choices natural and certain choices unnatural, the Court is saying to plaintiffs, “Stay within the realm in which the natural order has placed you. Do not attempt to break the boundaries of the state which the natural order has allotted to you.” The message embodies not just judgment but also restrictions.

Rhetorically, this discourse of judgmental restriction echoes bygone cultural assumptions about where certain people belong. To focus only on women—although many other groups are also subject to this kind of discourse—Anglo-American culture has made assumptions about their “nature” that have been used to justify a restricted role in society. For example, in 1697, the early feminist Mary Astell explained that women need not be educated in public speaking because they are not qualified to engage in public discourse, but only private conversation. In her words, women have no need of public speaking skills, “since Women have no business with the Pulpit, the Bar or St. Stephens Chapel [the House of Commons]: And Nature does for the most part furnish 'em with such a Musical Tone, Perswasive Air and winning Address as renders their Discourse sufficiently agreeable in Private Conversation.”^[186]

And in a poem she laments the result of this restriction in her own life: “Nature permits not me the common way,/By serving Court, or State, to gain/That so much valu’d trifle, Fame . . . .”^[187] Similarly, Blackstone explains that women convicted of treason are not hanged; instead, “as the natural modesty of the sex forbids the exposing and publicly mangling their bodies, their sentence . . . is to be drawn to the gallows, and there to be burned alive.”^[188]

According to Alexis de Tocqueville, women in the early American republic were also subject to “natural” restrictions. In his view, it was “natural” that a woman moved directly from “her father’s house” to “the home of her husband.”^[189] He deduced that American capitalism, combined with its religiosity, “require[s] much abnegation on the part of woman,” and consigns her to a strictly domestic role: “[I]n the United States the inexorable opinion of the public carefully circumscribes woman within the narrow circle of domestic interests and duties, and forbids her to step beyond it.”^[190] The women’s suffrage movement required women to come to terms with their consignment to the domestic sphere. Many women accepted their roles.^[191] One example was Catharine Beecher, sister of both Henry Ward Beecher, abolitionist and supporter of suffrage, and Harriet Beecher Stowe, whose novel Uncle Tom’s Cabin helped spark abolitionist sentiment.^[192] Yet Catharine Beecher believed that women’s proper role was as wife, mother, and educator:

It is the grand feature of the Divine Economy, that there should be different stations of superiority and subordination . . . and it is impossible to annihilate this beneficent and immutable law . . . Heaven has appointed to one sex the superior, and to the other the subordinate station . . . but while a woman holds a subordinate relation in society to the other sex, it is not because it was designed that her duties or her influence should be any less important, or all-pervading.^[193]

Religious leaders, likewise, saw voting as inconsistent with women’s natural domestic role. One pastor praised the “unostentatious prayers and efforts of woman in advancing the cause of religion . . . as becomes the modesty of her sex.”^[194] However, the pastor continued, women violate their own nature and, consequently, their place in the natural order when they enter the public sphere: “But when she assumes the place and tone of man as a public reformer . . . her character becomes unnatural.”^[195] The Seneca Falls Convention in 1848 inspired a host of outraged anti-abolitionists, many of whom saw women’s suffrage as an earth-shaking change that would overturn the existing social order.^[196] For example, one commentator echoed Locke in warning that:

[I]f women are allowed to exercise all the “rights” that are claimed by these Convention-holders[,] [s]ociety would have to be radically remodelled in order to accommodate itself to so great a change in the most vital part of the compact of the social relations of life; and the order of things established at the creation of mankind, and continued six thousand years, would be completely broken up.^[197]

The apotheosis of this kind of reasoning occurred in 1872 in the U.S. Supreme Court’s decision in Bradwell v. Illinois.^[198] There, the Court affirmed the denial of Myra Bradwell’s application for a license to practice law, holding that the right to practice law was not protected by the Privileges and Immunities Clause of the Fourteenth Amendment.^[199] Justice Bradley, concurring, articulated what has become a classic statement of the rationale for the civil and political subordination of women:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.^[200]

Here, we see that Nature accounts for the personality of women (timid and delicate), as well as the American family structure. Thus, it is only natural that a woman should be confined to a sphere in which she does not have to deal with the commotion of the marketplace or political rough and tumble; her innate timidity and delicacy, not to mention her modesty, dictates a quiet life. Similarly, the law of God and nature dictates the structure of the American family and situates women at the center of it. In the natural order of things, women stay home, men go to work.

So much for the nineteenth century. But lest we think that this view of women is archaic and did not survive the Nineteenth Amendment and women’s entry into the civil, professional, and political spheres, we are confronted with the reality of women in the mid-twentieth century. When World War II broke out and men left by the thousands for the armed forces, women’s roles were once again at issue. Women’s labor became salient to the war effort.^[201] In the nineteenth century, women stayed home, and men went to work. In World War II, a recruiting poster for student nurses proclaimed, “Men Must Fight Women Must Work.”^[202] And the necessity for women to work in war production industries and their entry into the armed forces, primarily as nurses, did change society’s view of women. Secretary of Labor Frances Perkins noted that, as women infiltrated formerly masculine jobs, social prejudice against women generally, and against married women, elderly women, and Black women, began to erode.^[203] However, a Time magazine article in 1942 quoted a Brooklyn church publication as declaring that the Women’s Army Corps was “no more than an opening wedge, intended to break down the traditional American and Christian opposition to removing women from the home and to degrade her by bringing back the pagan female goddess of de-sexed, lustful sterility.”^[204] Indeed, at war’s end the women who had worked so capably doing the jobs of absent men felt ambivalent about relinquishing those jobs. While many women wished to remain in the work force, others were happy to move back into the domestic sphere.^[205] Of course, World War II had gone far to doing exactly what the Brooklyn writer feared—opposition to women entering the marketplace had been eroded. Post-war women would come to dominate the so-called “pink collar” administrative jobs that proliferated in the next few decades,^[206] although this vision of the Career Woman was balanced by the myth of the 1950s Happy Homemaker featured in Betty Friedan’s The Feminine Mystique.^[207]

So much for the twentieth century. Although one might anticipate, or hope, that women’s roles would no longer be defined by assumptions about their “natural” characteristics or role in the “natural” order, one would be disappointed. The current quarter of the twenty-first century has seen a reduction in explicit discourse comparable to that of the earlier centuries—one does not often hear that “woman’s place is in the home”—but recent Supreme Court cases have sought to police women’s bodies, perhaps in response to their escape from their natural roles as wives and mothers.^[208] Even before Dobbs, scholars noted that the Supreme Court “still views motherhood as women’s natural role.”^[209] In fact, this view of women resonates with the eighteenth- and nineteenth-century view of women as having an inherent nature that confines them to a certain place in the social order. Specifically, in the abortion decisions, “background assumptions about the naturalness of female caretaking fill the gap of rationalizing a duty to carry a fetus to term.”^[210] When something is natural, it doesn’t have to be explained or rationalized. This is just as true in the personal jurisdiction context as in the abortion context.

The Court must give content to the Due Process Clause in the context of personal jurisdiction. But suggesting that the limits of personal jurisdiction are somehow “natural” runs the risk of assuming that certain restrictions are self-evident and therefore inarguable. Using the phrase “the most natural state” suggests that the best forum can be identified instinctively or rationally. If something is “natural,” it’s hard to challenge. And appealing to what is natural can be a way of coercing agreement; after all, who can argue with whatever is “natural”?

In fact, the Supreme Court has used this type of reasoning in other contexts. Perhaps most familiar is the Court’s frequent resort to “the most natural meaning” or “interpretation” of a text, usually a statute. Recently, for example, in interpreting the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act,^[211] Justice Barrett opined that “the major questions doctrine is a tool for discerning—not departing from—the text’s most natural interpretation.”^[212] Yet the Court has rarely, if ever, addressed why a particular reading is most natural, instead relying on simple assertions, like this one interpreting the Recess Appointments Clause of the Constitution^[213]: “We concede that the most natural meaning of ‘happens’ as applied to a ‘vacancy’ (at least to a modern ear) is that the vacancy ‘happens’ when it initially occurs.”^[214]

Similarly, Justice Souter in Bell Atlantic Corp. v. Twombly rejected the proposition that the lack of competition between the Baby Bells and the new telecommunications companies was “anything more than the natural, unilateral reaction” of each company.^[215] In fact, said Justice Souter, the lack of competition in this situation was “so natural” that recognizing that behavior as a violation of antitrust laws would subject all companies to liability.^[216] In the Twombly Court’s view, the companies’ similar reactions to the new telecommunications environment, and their failure to aggressively poach one another’s customers reflects something inherent in a capitalist system. “It’s only natural,” says the Court, and therefore not actionable. Here, perhaps, Justice Souter was taking judicial notice of a phenomenon that would logically result from forces at play in our capitalist system. In other words, there might have been some economic behavioral basis for the Court’s statement.

However, on a couple of occasions, Justice Kagan has voiced conclusions based on reductive nonreasoning that parallels the use of “natural” to mean inherent in the irreducible order of things. For example, in the Daimler oral argument, Justice Kagan addressed the plaintiff’s argument as follows: “If [Daimler AG] were subject to [sic] general jurisdiction in California, so, too, it would be subject to general jurisdiction in every State in the United States, and all of that has got to be wrong.”^[217] But, of course, that proposition was not wrong from 1945 through 2014 as long as Daimler had continuous and systematic contacts with every state.^[218] Similarly, addressing the recent proliferation of nationwide injunctions, Justice Kagan asserted, “[i]t just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”^[219] Just as it’s hard to argue with whatever is termed “natural,” it’s hard to argue with what is labelled “wrong” and “right.” All of these uses disguise the fact that the scope of injunctions, like the scope of personal jurisdiction, are human choices, determined by actors in a civil justice system constructed by humans. There is no “brooding omnipresence in the sky”^[220]—no divine law, no law of Nature—that requires certain choices in this realm. The Due Process Clause is neither God nor Nature.

This rhetoric of what is “natural” implies not just restriction—i.e., inability to access certain states—but also punishment for seeking to do so. The plaintiffs in Daimler were turned away from a U.S. court, to seek their fortune elsewhere, in Argentina, or perhaps not at all. The Daimler plaintiffs were verbally reprimanded for advocating a “sprawling,” “unacceptably grasping,” and “exorbitant” jurisdiction.^[221] The non-resident plaintiffs in Bristol-Myers Squibb were turned away from California to seek their fortunes in the courts of thirty-three other states, or perhaps not at all. And they were scolded for invoking a “spurious form of general jurisdiction,” although that type of jurisdiction would have been perfectly proper four years earlier, pre-Daimler.^[222] Indeed, identifying one state as “the most natural” obscures the power move that consigns injured plaintiffs to a few certain “natural” states while conferring immunity on multinational corporations from suit in the many states in which they have continuous and systematic contacts. Only Justice Sotomayor in her Daimler concurrence recognized this move, while more recently Justice Gorsuch has questioned these “special jurisdictional protections” for corporations.^[223]

IV. Conclusion

In his Ford concurrence, Justice Gorsuch asked “where we might be headed” with personal jurisdiction.^[224] The Court’s most recent decision, Mallory v. Norfolk Southern Ry. Co., does not answer this question with respect to contacts-based jurisdiction.^[225] Neither does Ford. The International Shoe scheme, based upon an assessment of the quality and nature of the defendant’s forum contacts, mediated by whether the plaintiff’s cause of action arose out of or related to its cause of action, was blown up by Daimler.^[226] The major focus of the Ford opinion was cleaning up the debris left by Daimler’s explosion of the continuous and systematic contacts test, while perpetuating the anti-plaintiff rhetoric that suggests there is one best, self-evident forum for every lawsuit. It seems odd, and reactionary, that the Court is restricting the scope of personal jurisdiction while interstate and global transportation, communication, and commerce are erasing state and national boundaries. The Ford Court’s continued emphasis on “interstate federalism” reifies these boundaries instead of grappling with the implications of their increasingly porous nature.^[227]

Going forward, the Court should be reminded that Due Process for defendants requires nothing more nor less than “reciprocal fairness,” as recognized by Justice Sotomayor in her Daimler concurrence.^[228] Contacts-based jurisdiction, as imagined by International Shoe, requires evaluative judgments by courts.^[229] Making evaluative judgments is what courts do. Declaring that a forum is “the most natural state” for a lawsuit is inapt at best, and regressive at worst. There’s nothing natural about the forum for a civil lawsuit, and there’s nothing unnatural about a plaintiff who seeks to challenge the restrictions implied by labelling a forum “the most natural state.”

---

1. See Daimler AG v. Bauman, 571 U.S. 117, 117–19 (2014).

2. Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028 (2023).

3. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1039 (2021) (Gorsuch, J., concurring).

4. See Charles W. “Rocky” Rhodes & Cassandra Burke Robertson, Toward a New Equilibrium in Personal Jurisdiction, 48 U.C. Davis L. Rev. 207, 218–19, 230–31 (2014).

5. See BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 417 (2017) (Sotomayor, J., concurring in part and dissenting in part); see also Judy M. Cornett & Michael H. Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, 76 Ohio St. L.J. 101, 111 n.50 (2015).

6. Ford Motor Co., 141 S. Ct. 1017.

7. See Richard D. Freer, From Contacts to Relatedness: Invigorating the Promise of “Fair Play and Substantial Justice” in Personal Jurisdiction Doctrine, 73 Ala. L. Rev. 583, 593, 599–600 (2022).

8. Ford Motor Co., 141 S. Ct. at 1031–32.

9. See, e.g., Adams v. Aircraft Spruce & Specialty Co., 284 A.3d 600, 616 (Conn. 2022).

10. Id. at 1036 (Gorsuch, J., concurring).

11. Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).

12. Id. at 316.

13. See Ford Motor Co., 141 S. Ct. at 1024.

14. See Int’l Shoe Co., 326 U.S. at 317. The International Shoe Court used the phrase in connection with specific jurisdiction, but it later came to be the standard, taught to decades of law students, for general jurisdiction. See BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 418 n.2 (2017) (Sotomayor, J., concurring in part and dissenting in part).

15. BNSF Ry. Co., 581 U.S. at 413.

16. Daimler AG v. Bauman, 571 U.S. 117 (2014).

17. Id. at 121–22, 136, 153–54.

18. Id. at 137.

19. See generally Cornett & Hoffheimer, supra note 5.

20. Judy M. Cornett, The Rulification of General Personal Jurisdiction and the Search for the Exceptional Case, 89 Tenn. L. Rev. 571, 586 (2022); see also Freer, supra note 7, at 594.

21. BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 419 (2017) (Sotomayor, J., concurring in part and dissenting in part). Yet, despite the clarity of the Daimler rule, the Court and scholars have continued to refer to the “at home test.” See, e.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021); see also Freer, supra note 7, at 584 n.112. There is no test. There is a rule with a phantom exception. See BNSF Ry. Co., 581 U.S. at 419 (Sotomayor, J., concurring in part and dissenting in part) (explaining the Court’s reading of what constitutes an exceptional case “is so narrow as to read the exception out of existence entirely”). See generally Cornett, supra note 20. Most recently, however, the Court seems to have realized that there is no “at home” test. See Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2040 (2023) (“These passages may have pointed the way to what (much) later cases would label ‘specific jurisdiction’ over claims related to in-forum activities and ‘general jurisdiction’ in places where a corporation is incorporated or headquartered.”) (summarizing the Supreme Court’s personal jurisdiction jurisprudence, per Justice Gorsuch).

22. BNSF Ry. Co., 581 U.S. at 414.

23. Id. at 406, 414–15.

24. Id. at 406.

25. Id. at 417 (Sotomayor, J., concurring in part and dissenting in part).

26. See Cornett, supra note 20, at 606; Rhodes & Robertson, supra note 4, at 214–15.

27. Daimler AG v. Bauman, 571 U.S. 117, 122, 127 (2014).

28. Freer, supra note 7, at 596; see also James E. Pfander & Jackie O’Brien, Realism, Formalism, and Personal Jurisdiction: Due Process After Mallory and Ford Motor, 103 Tex. L. Rev. 65, 70 (2024) (proposing that the Supreme Court place more emphasis on plaintiff’s contacts with forum state).

29. See Michael H. Hoffheimer, The Stealth Revolution in Personal Jurisdiction, 70 Fla. L. Rev. 499, 502 n.8 (2018).

30. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918 (2011).

31. See generally Rhodes & Robertson, supra note 4, at 230−31.

32. Erwin v. Ford Motor Co., No. 8:16-cv-01322-T-24 AEP, 2016 WL 7655398, at *10 (M.D. Fla. Aug. 31, 2016).

33. Id. at *8.

34. Id. at *1.

35. Id.

36. See id. at *1, *3.

37. See id. at *2–3, *7.

38. Id. at *1. The Tampa division of the U.S. District Court for the Middle District of Florida serves Hillsborough County. Divisions, U.S. Dist. Ct. Middle Dist. of Fla., https://www.flmd.uscourts.gov/divisions [https://perma.cc/FV9H-SSZR] (last visited Feb. 6, 2025).

39. Erwin, 2016 WL 7655398, at *1, *5–6.

40. Id. at *2; Erwin v. Ford Motor Co., 309 F. Supp. 3d 229, 239 (D. Del. 2018).

41. Erwin, 2016 WL 7655398, at *7.

42. Id. at *13.

43. See Erwin, 309 F. Supp. 3d at 232−33 (noting the Florida court’s “rather novel conclusion” and its “tenuous at best” reasoning and stating, “I find myself in the anomalous position of applying Delaware choice of law principles, which coincidentally mirror those of Florida, to a case which arose in Florida, which I am convinced was properly filed there in the first instance”).

44. Id. at 236.

45. Id. at 240.

46. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022 (2021).

47. Cases like Erwin explain why “Ford could argue with a straight face that specific jurisdiction was lacking.” Maggie Gardner et al., The False Promise of General Jurisdiction, 73 Ala. L. Rev. 455, 457 (2022).

48. Ford Motor Co., 141 S. Ct. at 1023.

49. Id. at 1023, 1028.

50. Id. at 1023.

51. Id.

52. Id. at 1028−29.

53. Id. at 1023.

54. Id. at 1025 (quoting Bristol-Myers Squibb v. Superior Ct. of Cal, S.F. Cnty., 582 U.S. 255, 259 (2017)).

55. Id. at 1026; id. at 1033 (Alito, J., concurring) (questioning the validity of bifurcating the phrase).

56. Id. at 1027. The World-Wide Court’s discussion of personal jurisdiction over Audi and Volkswagen was admittedly dicta. Id. Audi did not challenge personal jurisdiction, while Volkswagen did challenge jurisdiction in the trial court but did not seek review in the Oklahoma Supreme Court. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 288 n.3 (1980).

57. World-Wide Volkswagen Corp., 444 U.S. at 288.

58. Ford Motor Co., 141 S. Ct. at 1026, 1028.

59. Id. Of course, Ford conducts these same activities in every state; their contacts with every state could justifiably be described as “continuous and systematic.” That is why, pre-Daimler, the Court would not need to be concerned with the relationship between those contacts and the plaintiffs’ causes of action here.

60. Id. at 1028.

61. Id. (“Contrast a case, which we do not address, in which Ford marketed the models in only a different State or region.”).

62. See John Pearley Huffman, The History of the Ford Crown Victoria, Car & Driver (June 8, 2018), https://www.caranddriver.com/features/g21206609/victorian-era-the-history-of-the-ford-crown-victoria/ [https://perma.cc/89VH-L8P9].

63. See id.

64. See The Ford Crown Victoria Police Interceptor History, Municibid (Oct. 30, 2023), http://blog.municibid.com/the-ford-crown-victoria-police-interceptor-history/ [https://perma.cc/YMK5-9HZH].

65. See Huffman, supra note 62.

66. The Ford Crown Victoria Police Interceptor History, supra note 64.

67. Aaron Gold, The Ford Mustang: History, Generations, Models, Specifications, MotorTrend (May 1, 2020), https://www.motortrend.com/features/ford-mustang-history-generations-models-specifications/ [https://perma.cc/A37C-7DVG].

68. SVO History, SVO Club of Am., https://www.svoca.com/history/svo_history.php [https://perma.cc/98DU-H6G7] (last visited Feb. 8, 2025). But see Peter C. Sessler, Fox Mustang Production Numbers, Part 1, MotorTrend (Mar. 2, 2005), https://www.motortrend.com/news/0504mm-historical-mustangs/ [https://perma.cc/9Y4R-8R58] (stating that only 4,057 SVO’s were built in 1984).

69. Fox Body Production Numbers, Late Model Restoration, https://lmr.com/products/fox-body-mustang-production-numbers [https://perma.cc/R69P-2HAJ] (last visited Feb. 8, 2025) (this number includes 5,260 model year 1984.5 Mustangs).

70. Kurt Ernst, Mustang SVO: The Euro-Inspired Corner Carver that Was Ahead of Its Time, Hemmings (Mar. 22, 2024), https://www.hemmings.com/stories/article/mustang-svo [https://perma.cc/TGW4-K2RL].

71. Id.

72. Lower courts are grappling with how to apply the Court’s suggestion that product specificity may be required for personal jurisdiction. One court emphasized the Court’s listing of Ford’s many non-Explorer and non-Crown Victoria contacts with the forum states, and concluded, “I find this significant, and I understand this to mean that it is not necessarily a prerequisite for specific jurisdiction that a company market or sell the specific product model at issue in the forum state.” Godfried v. Ford Motor Co., No. 1:19-cv-00372-NT, 2021 WL 1819696, at *1, *5, *7 (D. Me. May 6, 2021) (in litigation over injuries caused by Model 501 rear mower, personal jurisdiction over Ford was proper in Maine when Ford sold other models of rear mowers there); see also Yamashita v. LG Chem, Ltd., 62 F.4th 496, 501, 505–07 (9th Cir. 2023) (plaintiff’s injury by defendant’s lithium-ion battery in electric cigarette did not relate to defendant’s shipment of solar system batteries into forum state because “the large batteries installed in stationary solar-power systems and the small portable stand-alone battery at issue here are as different as sedans and 18-wheelers”); LNS Enters. LLC v. Cont’l Motors, Inc., 22 F.4th 852, 856, 864 (9th Cir. 2022) (alternative holding) (in air crash litigation, personal jurisdiction against Textron was not appropriate in Arizona because their service center did not serve the same model aircraft as involved in crash); Specialized Transp. & Rigging, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, No. 3:20-cv-00188-TMB, 2022 WL 603034, at *7 (D. Alaska Feb. 28, 2022) (alternative holding) (personal jurisdiction was inappropriate in Alaska because the plaintiff “does not claim [the defendant] has advertised, sold, or serviced identical products in Alaska”); Dodd v. Textron, Inc., No. 3:21-cv-5177 BHS-TLF, 2022 WL 392442, at *1, *5 (W.D. Wash. Feb. 9, 2022) (personal jurisdiction over manufacturer of off-road vehicle was proper in Washington because “[defendant] sells and advertises the exact same model of vehicle in Washington and the [plaintiffs] purchased the [off-road vehicle] based on [defendant]’s advertisements in the state”); Wade v. Kenan Advantage Grp., Inc., No. 20-18155, 2021 WL 4704962, at *1, *8–9 (D.N.J. Oct. 8, 2021) (in litigation over plaintiff’s fall from a tanker trailer, personal jurisdiction over defendant was inappropriate in New Jersey because defendant “inspects and repairs only trailers and truck bodies which are part of the FedEx fleet, not the type of tank trailer at issue in this case”); Hood v. Am. Auto Care, LLC, 21 F.4th 1216, 1220, 1224 (10th Cir. 2021) (personal jurisdiction over telemarketing firm was proper in Colorado because “AAC’s marketing in Colorado was essentially the same as its marketing in Vermont,” but noting that result might be different “if there was a substantial relevant difference between calls placed to residents of the two states” (quoting caveat from Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1028 (2021))); Vertex Indus., Inc. v. State Farm Lloyds, No. 03-20-00574-CV, 2021 WL 3684263, at *1, *6 (Tex. App.—Austin Aug. 20, 2021, no pet.) (personal jurisdiction was proper in Texas when the manufacturer of a defective reverse osmosis unit sold “other water-quality-related products” in Texas).

73. Downing v. Losvar, 507 P.3d 894, 900, 915 (Wash. Ct. App.), review denied sub nom. Downing v. Textron Aviation, Inc., 516 P.3d 384 (Wash. 2022).

74. Id. at 901, 909.

75. Id. at 909.

76. Id.

77. Sullivan v. LG Chem, Ltd., 79 F.4th 651, 672 (6th Cir. 2023).

78. Id. at 656–57, 671–72.

79. Id. at 673.

80. Id.

81. Id. at 658, 673; accord Beierschmitt v. Grobet File Co. of Am., LLC, No. B310754, 2022 WL 1236815, at *1, *3 (Cal. Ct. App. Apr. 22, 2022) (holding that nonresident defendant was subject to jurisdiction in state where plaintiff resided and was injured by defendant’s dental asbestos blocks, even though defendant targeted state for sale of only jewelry asbestos blocks).

82. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022, 1028–29 (2021).

83. Id. at 1028.

84. Id. at 1029.

85. Id.

86. Id. at 1024; see Bristol-Myers Squibb Co. v. Superior. Ct. of Cal., S.F. Cnty., 582 U.S. 255, 264 (2017).

87. Ford Motor Co., 141 S. Ct. at 1031 (emphasis added) (quoting Bristol-Myers Squibb Co., 582 U.S. at 256).

88. Westlaw Search Results for “the most natural State,” Westlaw https://westlaw.com [https://perma.cc/U4H8-46JK] (search “the most natural State” in Supreme Court cases) (last visited Feb. 2, 2025).

89. Ford Motor Co., 141 S. Ct. at 1031 (emphasis added) (quoting Bristol-Myers Squibb Co., 582 U.S. at 256).

90. Id.

91. The following search was run on December 26, 2024, in the Westlaw All Federal Cases and All State Cases databases: “most natural state” & da (after 2020). Westlaw Search Results for “most natural State” & da(after 2020), Westlaw, https://westlaw.com [https://perma.cc/7DAK-3GQS] (last visited Dec. 26, 2024) (search “most natural state” & da(after 2020) in All Federal Cases and All State Cases). This number excludes the Supreme Court’s opinion in Ford and the district court opinion in Sullivan later reversed by the Sixth Circuit. Sullivan v. LG Chem, Ltd., 79 F.4th 651, 657 (6th Cir. 2023).

92. See Baity v. Johnson & Johnson, Case No. 3:20-CV-01367-NJR, 2021 WL 1401460, at *1–3 (S.D. Ill. Apr. 14, 2021) (relying on Bristol-Myers Squibb in dismissing products liability claims by non-Illinois residents not injured in Illinois); accord Lenovo (U.S.), Inc. v. IPCom GmbH & Co., KG, Case No. 19-cv-01389-EJD, 2022 WL 2644096, at *9–10 (N.D. Cal. July 8, 2022); see also Ditter v. Subaru Corp., No. 20-cv-02908-PAB-MEH, 2022 WL 889102, at *1, *6, *10 (D. Colo. Mar. 25, 2022) (holding that defendant Japanese car manufacturer lacked minimum contacts with Colorado in products liability suit by Colorado resident injured in Colorado).

93. References to citizenship of the corporations here, and throughout, reflect the common understanding that citizenship and residence of corporations for personal jurisdiction purposes tracks citizenship for subject matter jurisdiction purposes under Hertz Corp. v. Friend, 559 U.S. 77, 92–94 (2010), although the Supreme Court has never explicitly so held.

94. Kennedy v. Crothall Healthcare, Inc., 321 A.3d 1065, 1069, 1077, 1081 (Pa. Super. Ct. 2024). The plaintiff waived her argument that GE and Datex were subject to general jurisdiction in Pennsylvania pursuant to Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023). See Kennedy, 321 A.3d at 1072.

95. Kennedy, 321 A.3d at 1069, 1074–75.

96. Id. at 1075–76.

97. See id. at 1077, 1080 n.6.

98. The plaintiff also sued Crothall Healthcare, the Pennsylvania corporation that serviced the anesthesia system, but the court granted Crothall’s forum non conveniens motion. Id. at 1069–70, 1080 n.6.

99. Id. at 1069, 1074, 1080 n.6 (quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1031 (2021)). Of course, because GE was neither incorporated nor headquartered in Florida, it would not have been subject to jurisdiction in Florida unless Datex’s contacts were imputable to GE (a question that was supposed to be answered in Daimler AG v. Bauman, but wasn’t) or unless GE itself sought to serve the market for anesthesia machines (or the specific model of anesthesia machine? Or other GE medical products? Or GE appliances generally?) in Florida. See id. at 1069.

100. Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., No. 21-11269-FDS, 2024 WL 3696388, at *1, *4 (D. Mass. Aug. 7, 2024).

101. Id. at *1 (the six defendants were Sturm, Ruger & Company; Barrett Firearms Manufacturing, Inc.; Glock Inc.; Colt’s Manufacturing Company LLC; Century International Arms, Inc.; and Beretta U.S.A. Corp.).

102. Id. at *10; see Cornett, supra note 20, at 586 (explaining that there is generally no exception to the Daimler rule that general jurisdiction is available only in the corporation’s headquarters state and state of incorporation).

103. Smith & Wesson, 2024 WL 3696388, at *1, *4.

104. Id. at *2.

105. Id. at *4.

106. Id. at *11, *13, *15.

107. Id. at *13.

108. Israel v. Alfa Laval, Inc., No. 8:20-CV-2133-WFJ-AAS, 2021 WL 1662770, at *1–2 (M.D. Fla. Apr. 28, 2021).

109. Id. at *1.

110. Id.

111. Id. at *6.

112. Id.

113. Rivers v. Nice Recovery Sys., No. 1:21-cv-00367-MSM-PAS, 2023 WL 2525209, at *1 (D.R.I. Mar. 15, 2023).

114. Id.

115. Id. at *2.

116. Id. at *1–2.

117. Id.

118. Id. at *4.

119. Id.

120. Choi v. Gen. Motors, LLC, No. CV 21-5925-GW-MRWx, 2021 WL 4133735, at *1 (C.D. Cal. Sept. 9, 2021).

121. Id. at *5.

122. Id. at *1.

123. Id. at *5–6 (quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1030 (2021)).

124. Id. at *6 (third alteration in original) (citation omitted).

125. But see Look-Yan v. Mazda Motor Corp., No. D080058, 2023 WL 5920904, at *13 (Cal. Ct. App. Sept. 12, 2023) (unpublished) (affirming dismissal for lack of personal jurisdiction when the plaintiff failed to produce verified “evidentiary facts concerning the plaintiff’s residence, the accident’s location, or how the accident occurred.”).

126. Sawyer v. Cooper Tire & Rubber Co., No. SC-2023-0603, 2024 WL 4096870, at *3 (Ala. Sept. 6, 2024).

127. Id. at *2.

128. Id. at *1, *5.

129. See id. at *2–3.

130. See id. at *13, *15–16; Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022–23 (2021).

131. See Sawyer, 2024 WL 4096870, at *14–16, *19.

132. See id., at *21–22 (Cook, J., concurring); e.g., Patrick J. Borchers et al., Ford Motor Company v. Montana Eighth Judicial District Court: Lots of Questions, Some Answers, 71 Emory L.J. Online 1, 19–20 (2021); Gregory C. Cook & Andrew Ross D’Entremont, No End in Sight? Navigating the “Vast Terrain” of Personal Jurisdiction in Social Media Cases After Ford, 73 Ala. L. Rev. 622, 645 (2022); Jessica Hylton, Time for a New Shoe? Making Sense of Specific Jurisdiction, 87 Mo. L. Rev. 565, 582–83 (2022); Sierra Taylor Horton, Can’t Relate: Why Ford Motor Co. Should Not Be the End of the Road for Specific Jurisdiction, 54 U. Pac. L. Rev. 421, 433–34 (2023); Charles W. “Rocky” Rhodes, The Roberts Court’s Jurisdictional Revolution Within Ford’s Frame, 51 Stetson L. Rev. 157, 182–85 (2022).

133. Sawyer, 2024 WL 4096870, at *21–23.

134. Id. at *23 (citing Bristol-Myers Squibb Co. v. Superior Ct. of Cal., S.F. Cnty., 582 U.S. 255 (2017)).

135. But see N. Sails Grp., LLC v. Boards & More GmbH, 264 A.3d 1, 7–8, 31 (Conn. 2021) (dismissing resident plaintiff’s suit against Austrian defendants in breach of contract action, even though plaintiff’s damages accrued in forum state, on ground that defendants lacked minimum contacts with forum state); cf. id. at 50 (Ecker, J., dissenting) (reading Ford Motor Company as holding that “plaintiffs’ home state, where injuries were suffered, is ‘the most natural [s]tate’ in which to bring action”).

136. Galier v. Murco Wall Prods., Inc., 528 P.3d 293, 296 (Okla. 2022), cert. denied, 143 S. Ct. 1086 (2023).

137. Id. at 300, 302 (quoting Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1031 (2021)); accord Foti v. EzriCare, LLC, No. 8:23-cv-00771-JVS-KES, 2023 WL 11117028, at *1, *4, *7 (C.D. Cal. Nov. 22, 2023) (personal jurisdiction proper over nonresident defendant manufacturer of contaminated eye drops when plaintiff resided in California, used drops in California, and suffered injury in California).

138. Castillero v. Xtend Healthcare, LLC, No. 22-02099 (GC) (DEA), 2023 WL 8253049, at *2 (D.N.J. Nov. 29, 2023).

139. Id. at *1, *11.

140. Trio v. Turing Video, Inc., No. 1:21-cv-04409, 2022 WL 4466050, at *1–2, *4 (N.D. Ill. Sept. 26, 2022).

141. Id. at *2.

142. Id. at *6. But see In re Zantac (Ranitidine) Prod. Liab. Litig., 546 F. Supp. 3d 1192, 1212–14 (S.D. Fla. 2021) (holding that defendants’ only actionable conduct under innovator liability theory did not take place in California or Massachusetts; therefore, forum residents’ injuries did not relate to defendants’ other forum activities) (distinguishing Ford Motor Company).

143. Bibbs v. Molson Coors Beverage, 616 F. Supp. 3d 606, 610–11 (N.D. Tex. 2022), reconsideration denied, No. 4:22-CV-0200-P, 2023 WL 7174358 (N.D. Tex. May 8, 2023).

144. Id. at 610–11.

145. Id. at 610–11, 614, 616.

146. Id. at 613–14.

147. Id. at 615.

148. Id. at 612–13. The court did not mention, much less evaluate, the volume of the defendant’s sales of its products in Texas, since that is now irrelevant to the general jurisdiction analysis. Even though the court gave lip service to the existence of the chimerical “exceptional case” from Daimler, it did not address the defendant’s sales in rejecting that possibility. Id. at 612. This case illustrates the now-current pattern of district courts’ applying the new rule of general jurisdiction while giving lip service to the existence of a nonexistent “exceptional case.” See Cornett, supra note 20, at 598.

149. Turner Specialty Servs., LLC v. Horn, No. 01-22-00031-CV, 2022 WL 16640624, at *1–3, *9 (Tex. App.—Houston [1st Dist.] Nov. 3, 2022, pet. denied).

150. Id. at *1–2.

151. Id. at *9–10.

152. Id. at *9; Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022 (2021).

153. Turner, 2022 WL 16640624, at *10 (quoting Ford Motor Co., 141 S. Ct. at 1030).

154. Id.

155. Brandon v. Wright Med. Tech., No. 2:20-cv-01422-KJD-NJK, 2021 WL 3134658 at *1–2 (D. Nev. July 23, 2021).

156. Id. at *1.

157. Id. at *4–5 (citation omitted).

158. Adams v. Aircraft Spruce & Specialty Co., 284 A.3d 600, 605–06 (Conn. 2022).

159. Id. at 605.

160. Id. at 619.

161. Id. at 619–20, 622–24.

162. Id. at 623.

163. Id. at 620.

164. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1022 (2021) (discussing that jurisdiction is proper when a company markets a product in the forum state and that product causes injury to the state’s residents). Of course, when the injury occurs in the forum state, that state will typically be where the product was used and where it malfunctioned, the other two Ford Motor Company factors. See id. at 1027 (discussing that specific jurisdiction is proper where a company serves the market for a product in the forum state, and it malfunctions there).

165. Id. at 1031 (citation omitted).

166. Cf. Anthony Petrosino, Note, Rationalizing Relatedness: Understanding Personal Jurisdiction’s Relatedness Prong in the Wake of Bristol-Myers Squibb and Ford Motor Co., 91 Fordham L. Rev. 1563, 1588 (2023) (arguing that the “only two factors that matter are the location of the injury and the extent to which the plaintiff is buying into the forum”).

167. Daimler AG v. Bauman, 571 U.S. 117, 120 (2014) (noting that both parties were foreign and all of the events leading up to the suit occurred entirely outside of the United States).

168. Id. at 120–21, 136 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 929 (2011)).

169. Id. at 138–39.

170. The American Heritage Dictionary of the English Language 1204 (3d ed. 1992).

171. Id. (emphasis omitted).

172. Id.

173. John Locke, Two Treatises of Government xii (W.S. Carpenter ed., J.M. Dent & Sons 1962) (1690).

174. Id. at 119.

175. 1 William Blackstone, Commentaries *119.

176. Id. at *156.

177. 4 William Blackstone, Commentaries *7–8.

178. Id. at *181–82.

179. 1 Blackstone, supra note 175, at *410.

180. Id. at 54; see also John R. Vile, Natural Rights, Free Speech Ctr. (July 2, 2024), https://firstamendment.mtsu.edu/article/natural-rights/ [https://perma.cc/3DCR-AM4Z].

181. American Heritage Dictionary, supra note 170, at 1204 (emphasis omitted).

182. See supra note 89 and accompanying text.

183. Declaration of Independence: A Transcription, Nat’l Archives https://www.archives.gov/founding-docs/declaration-transcript [https://perma.cc/88HD-9R7C] (last visited Feb. 9, 2025).

184. See, e.g., Locke, supra note 173.

185. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021).

186. Mary Astell, A Serious Proposal to the Ladies, Part II 192–93 (1697).

187. Mary Astell, In Emulation of Mr. Cowleys Poem Call’d the Motto Page I, reprinted in Claire Pickard, “Great in Humilitie”: A Consideration of Mary Astell’s Poetry, in Mary Astell: Reason, Gender, Faith (William Kolbrener & Michal Michelson eds., 2016).

188. 4 Blackstone, supra note 177, at *93.

189. 2 Alexis de Tocqueville, Democracy in America 212–13 (Henry Reeve trans., 4th ed. 1841).

190. Id. at 212.

191. Elizabeth Frost & Kathryn Cullen-DuPont, Women’s Suffrage In America: An Eyewitness History 31 (1992).

192. Debra Michals, Catharine Beecher, Nat’l Women’s Hist. Museum (2015), https://www.womenshistory.org/education-resources/biographies/catharine-esther-beecher [https://perma.cc/8T2S-Q5D3].

193. Frost & Cullen-DuPont, supra note 191, at 31, 39 (quoting Catharine Beecher, Essay on Slavery and Abolitionism with Reference to the Duty of American Females (1837)).

194. 1 Elizabeth Cady Stanton et al., History of Woman Suffrage 81 (1881) (quoting Pastoral Letter of “the General Association of Massachusetts (Orthodox) to the Churches under their Care”—1837).

195. Id.

196. Frost & Cullen-DuPont, supra note 191, at 33.

197. See supra note 174 and accompanying text; Stanton et al., supra note 194, at 803 (quoting Mechanic’s (Albany, N.Y.) Advocate).

198. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).

199. Id. at 130, 139.

200. Id. at 141 (Bradley, J., concurring).

201. History at A Glance: Women in World War II, The Nat’l WII Museum, New Orleans, https://www.nationalww2museum.org/students-teachers/student-resources/research-starters/women-wwii [https://perma.cc/EH45-R8NF] (last visited Feb. 19, 2025).

202. Doris Weatherford, American Women and World War II 18 (1990) (where a photograph depicts a Washington, D.C. department store poster encouraging women to become nurses).

203. Id. at 190–91.

204. Id. at 90 (quoting Catholics vs. WAACS, Time (July 13, 1942)).

205. See Weatherford, supra note 202, at 307.

206. See id. at 307–08.

207. Betty Friedan, The Feminine Mystique 18 (1963).

208. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2240 (2022).

209. See, e.g., Jennifer S. Hendricks, Body and Soul: Equality, Pregnancy, and the Unitary Right to Abortion, 45 Harv. C.R.-C.L.L. Rev. 329, 339 (2010).

210. Id. at 351.

211. Higher Education Relief Opportunities for Students Act of 2003. 20 U.S.C. § 1070 et seq.

212. Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring); see also Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 109–10 (2010) (“[Substantive] canons are more aggressive, permitting a court to forgo a statute’s most natural interpretation in favor of a less plausible one more protective of a particular value.”).

213. U.S. Const. art. II, § 2, cl. 3.

214. NLRB v. Canning, 573 U.S. 513, 538 (2014). One is tempted to ask, “Whose modern ear?”

215. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 549, 566 (2007).

216. Id. at 566.

217. Transcript of Oral Argument at 31, Daimler AG v. Bauman, 571 U.S. 117 (2014) (No. 11–965).

218. See supra, Part II.

219. Aaron-Andrew P. Bruhl, Law and Equity on Appeal, 124 Colum. L. Rev. 2307, 2308–09 (2024) (alteration in original) (quoting Josh Gerstein, Kagan Repeats Warning that Supreme Court Is Damaging Its Legitimacy, POLITICO (Sept. 14, 2022, 5:56 PM) https://www.politico.com/news/2022/09/14/kagan-supreme-court-legitimacy-00056766 [https://perma.cc/EQ8R-72LF].

220. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).

221. Daimler AG v. Bauman, 571 U.S. 117, 117–19, 138–39 (2014).

222. Bristol-Myers Squibb v. Superior Ct. of Cal, S.F. Cnty., 582 U.S. 255, 259 (2017).

223. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1038 (2021) (Gorsuch, J., concurring); Daimler, 571 U.S. at 157 (Sotomayor, J., concurring).

224. Ford Motor Co., 141 S. Ct. at 1036 (Gorsuch, J., concurring).

225. Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2057 (2023).

226. See supra text accompanying notes 11–15.

227. See supra text accompanying notes 152–54.

228. Daimler, 571 U.S. at 151 (Sotomayor, J., concurring).

229. See supra text accompanying notes 11–15.