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"Arise out of" or "Related to:" Textualism and Understanding Precedent—A Four Step Process to Resolve Jurisdiction Questions Utilizing The Third Circuit Test in O’Connor as a Uniform Standard
Washington and Lee Journal of Civil Rights and Social Justice (2011)
  • Victor N Metallo
Abstract
In the aftermath of Helicopteros Nacionales de Columbia, S.A. v. Hall and its progeny, the circuits are still divided as to the meaning and application of the terms "arise out of" or "related to" in specific jurisdiction analysis. While the Supreme Court indicated its reluctance to expound on these terms, several circuits have focused significantly on this language in adopting and developing their own peculiar jurisdictional methodology in answer to the perceived discrepancy. For the first time in over a quarter of a century, the Supreme Court has granted certiorari to two cases involving the "stream of commerce" theory used by state courts to justify lawsuits against foreign companies whose products end up injuring state residents. Whether or not the Court will use the opportunity to resolve the disagreement among the circuits over the "arise out of" or "related to" language is unclear. For now, the various approaches taken by the several circuits in light of these phrases are still in play, and companies will have to remain wary of when and where they will be subject to jurisdiction. The purpose of this article is to argue for a single jurisdictional standard, using textualism as a way to understand the meaning of the "arise out of" or "relates to" language. At present, there is no single standard. Instead, the circuits have responded to the problem by borrowing different tests from tort law to measure a defendant’s activity within a state. Circuits, such as the First and the Eighth, apply the "proximate cause" test, while others, such as the Sixth, Seventh, and the Ninth, apply the looser but-for test. The Third Circuit, however, rejects using a "hybrid" approach, holding that sliding scale tests are in tension with the Supreme Court’s distinction between specific and general jurisdiction. It considers the test too variable, because it focuses too much on the quantity and quality of the defendant’s activity. Because a sliding scale test creates such uncertainty, it makes it difficult for a defendant to know whether or not it will be subject to jurisdiction. Instead, the Third Circuit created a heightened but for standard, which compensates for the disparity between the proximate cause and the but for tests, while maintaining the causation requirement. The Third Circuit test maintains the distinction between general and specific jurisdiction, and thus, is in harmony with Supreme Court precedent. The remaining portion of this article is divided into five parts. Part I of this comment briefly sets forth the historical background to personal jurisdiction analysis through Helicopteros. Part II analyzes the split among the circuits in their interpretation and application of the above terms. In Part III, the Third Circuit’s approach to jurisdiction analysis is discussed and analyzed. Part IV supports the Third Circuit’s test using textualism and suggests a four-step process as a framework to resolving jurisdictional questions. Finally, Part V concludes that the Third Circuit test should be adopted as a single, uniform standard.
Disciplines
Publication Date
Spring 2011
Citation Information
Victor N Metallo. ""Arise out of" or "Related to:" Textualism and Understanding Precedent—A Four Step Process to Resolve Jurisdiction Questions Utilizing The Third Circuit Test in O’Connor as a Uniform Standard" Washington and Lee Journal of Civil Rights and Social Justice Vol. 17 (2011)
Available at: http://works.bepress.com/victor_metallo/1/