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Abstract

This Article examines the relationship between personal jurisdiction and choice of law in the context of choosing statutes of limitations to either permit or bar plaintiffs’ claims in cases where the parties or the facts underlying the cause of action are connected with multiple states or nations. During the period of constitutionally-permissible exercises of expansive personal jurisdiction, existing from 1945, when the United States Supreme Court decided International Shoe v. Washington, to the 2010s, states gradually rejected the then-prevalent rule that reflexively chose the limitations law of the forum, whether that law favored the vindication interests of the plaintiff or the repose interests of the defendant, for more nuanced choice-of-law models. Those models, often intentionally and occasionally unintentionally, operated in practice to elevate the repose interest of defendants over the vindication interests of plaintiffs by barring plaintiff’s suit through selection of the shorter of the limitations periods that could be chosen. The new models worked to limit plaintiffs’ ability to “egregiously” forum shop for the open limitations periods of a state that often had no connection to the parties or the litigation other than the fact that defendant was subject to suit there. In six cases since 2011, the Supreme Court dramatically constrained the scope of constitutionally-permissible personal jurisdiction such that plaintiffs have remarkably few choices of fora for suit. Those cases expressly elevated the fairness concerns surrounding defendant in being subject to suit over the fairness concerns of plaintiffs in having access to a convenient forum for suit. Whatever the overarching wisdom of the cases, the effect of their constriction of personal jurisdiction, combined with the choice-of-law rules adopted in the age of expansive jurisdiction to prevent forum shopping, has resulted in a legal regime that gives plaintiffs few available fora and then, in a wide range of cases, closes the courthouse doors of those fora. The vindication interests underlying states’ adoption of longer statutes of limitation is thereby suffocated. This Article proposes that the current choice-of-limitations rules be turned on their head by encouraging states to adopt a rule that chooses the longer limitations period, thus allowing a plaintiff’s suit to proceed. Such a rule will advance the vindication interests of states and plaintiffs without unfairly minimizing the repose interest of defendants. Significantly, such a rule also will advance the value of certainty in choice of law while simultaneously advancing the values of fairness and justice between the parties to civil litigation.

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Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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