Stanley E. Cox (New England Law | Boston) has posted The Missing 'Why' of General Jurisdiction (University of Pittsburgh Law Review, Forthcoming) on SSRN. Here is the abstract:
The 2014 Daimler decision continues the lack of foundational analysis for general personal jurisdiction that has existed since the 1984 Helicol case. The "why" of general jurisdiction has been missing for three reasons. First, cert was granted only on extreme cases, easily reversed. Second, the Court abandoned normal minimum contacts analysis. This led to the third problem, a doctrinal vacuum, which the Court filled only with description and assertions rather than justification. These points are made in Part I.
The way forward is to provide the missing "why" for the Court’s correct holdings. These arguments are made in Part II. Limiting general jurisdiction to where a defendant is most at home, as Daimler requires, comes directly from International Shoe’s total replacement of Pennoyer's overly broad authorizations. Shoe’s minimum contacts test did not just allow service outside the forum. Shoe more importantly limited state power, as Shaffer v. Heitner made clear. Only a relationship between the defendant’s forum contacts and what the litigation is about, i.e. regulatory legitimacy, not all-purpose presence, can support jurisdiction post-Shoe.
General jurisdiction is not easily justified under Shoe’s approach. General jurisdiction authorizes extraterritorial regulation of potentially any foreign conduct. Only the defendant's true home state can exercise such power over a defendant. Sovereigns are not required to wield general jurisdiction power, however, since they are not required extraterritorially to regulate. General jurisdiction is always surplusage. The place where the cause of action arose, the specific jurisdiction forum, is always the only sure place to sue in the post-Shoe world. When the Court realizes these points, it will not only be able to supply the missing "why" of general jurisdiction, but also be in a better position to evaluate all future personal jurisdiction cases.