Response to Michael H. Hoffheimer, The Stealth Revolution in Personal Jurisdiction
In The Stealth Revolution in Personal Jurisdiction, Professor Michael Hoffheimer uses Bristol-Myers Squibb Co. v. Superior Court (BMS), the U.S. Supreme Court’s latest personal jurisdiction decision, as a vehicle to critically examine the Court’s recent narrowing of both general and specific personal jurisdiction. Since 2011, the Court has decided six cases in which it has found that a lower court’s exercise of personal jurisdiction violated the Constitution. As Professor Hoffheimer notes, commentators agree that these cases have dramatically changed the law of personal jurisdiction and have made it more difficult, and sometimes impossible, for plaintiffs to identify a forum.
Nevertheless, as Professor Hoffheimer explains, “members of the Court repeatedly deny that they are altering existing law. On the contrary, they insist that the Court’s holdings are controlled by long-settled legal principles.” Professor Hoffheimer’s thesis is “that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent.” After thoroughly discussing the lower court and Supreme Court opinions in BMS, Professor Hoffheimer elaborates upon the many costs associated with the stealth revolution. I add my voice in this Response simply to point out one additional cost of the stealth revolution: the substantially increased difficulty of teaching and learning the law of personal jurisdiction which, in turn, erodes law students’ confidence in the Supreme Court as an institution.