A Clash of Principles: Personal Jurisdiction and Two-Level Utilitarianism in the Information Age


Utilitarianism provides the best analytic framework for “minimum contacts” analyses in multi-state mass tort litigation. Utilitarianism is a consequentialist ethical philosophy contending that one should act in a way that maximizes utility; that is, act in a way that maximizes pleasure and minimizes pain. This is often referred to as the “felicific calculus.”1 To maintain a civil lawsuit against a defendant, a court must have “personal jurisdiction” over that defendant, meaning that the defendant must have minimum contacts related to the suit such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.2 This is referred to as the “minimum contacts” test.3 The minimum contacts test serves two primary functions: first, ensuring that litigation takes place in a convenient forum; and second, ensuring that states do not intrude on the sovereignty of other states.4 The former function can be seen as a form of utilitarianism, whereby the court effectively weighs the costs and benefits of maintaining litigation in the given forum. However, the former function can conflict with the latter, more formalist function of maintaining a federalist system. This conflict featured in the recent Supreme Court case Bristol-Myers Squibb v. Superior Court, where the Supreme Court ruled that California did not have personal jurisdiction over mass tort claims from Oklahoma consumers, even though the exact same claims were being brought in California.5 In this case, the Supreme Court affirmed that in minimum contacts analyses, the formalist function is more important than the utilitarian one. The purpose of this note is to argue that the utilitarian function of minimum contacts should subsume the formalist one.


personal jurisdiction, utilitarianism, minimum contacts, felicific calculus, consequentialism



Wesley M. Bernhardt (Washington University in St. Louis)



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