Goldberg, Appel and Schwartz Explain SCOTUS Decisions Limiting Litigation Tourism

Shook Partners Phil Goldberg and Victor Schwartz, with Of Counsel Chris Appel, have authored an article for the Duke Journal of Constitutional Law & Public Policy examining U.S. Supreme Court decisions that have limited personal jurisdiction and thus helped to end “litigation tourism” or “forum shopping,” in which a plaintiff files a lawsuit “in a location believed to provide a litigation advantage to the plaintiff regardless of the forum’s affiliation with the parties or claims.”
The authors provide a brief history of the jurisprudence on personal jurisdiction, noting, “As the world grew more interconnected during the latter half of the twentieth century, particularly with the advent of the Internet, the due process rationale for the minimum contacts standard started to lose its constitutional grounding.” In 2011, they explain, the Supreme Court began reexamining personal jurisdiction and the effects of technological advances in a series of decisions that have furthered the evolution of the concept to limit forum shopping. Goldberg, Appel and Schwartz then highlight doctrinal issues that have arisen following the decisions, including whether defendants can dismiss or transfer cases filed before the decisions were entered.
“The Supreme Court’s reevaluation of the constitutional limits of personal jurisdiction, after a seventy-year hiatus, marks a turning point away from ‘sprawling’ theories of general and specific jurisdiction toward an exacting analysis of where a business may be subject to a lawsuit,” the authors conclude. “A clear impetus for this paradigm-shift in jurisprudence was the Court’s desire to curb forum shopping and litigation tourism, which plaintiffs engage in to obtain an advantage unrelated to a claim’s merits. The Court’s jurisprudence reflects the modern economy, where many corporate defendants maintain a national or global presence, as well as the modern litigation environment, where plaintiffs’ lawyers have developed tactics based on the ability to stockpile claims in chosen jurisdictions.”