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Brief for Professor Stephen E. Sachs in Support of Petitioner

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Brief for Professor Stephen E. Sachs in Support of Petitioner NO. 16-405 In the Supreme Court of the United States BNSF RAILWAY CO., Petitioner, v. KELLI TYRRELL, Special Administrator for the Estate of Brent T. Tyrrell; and ROBERT M. NELSON, Respondents. On Writ of Certiorari to the Supreme Court of Montana BRIEF OF PROFESSOR STEPHEN E. SACHS AS AMICUS CURIAE IN SUPPORT OF PETITIONER STEPHEN E. SACHS Counsel of Record DUKE UNIVERSITY SCHOOL OF LAW 210 Science Drive Box 90360 Durham, NC 27708 (919) 613-8542 [email protected] Counsel for Amicus Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES................... ii INTEREST OF THE AMICUS CURIAE ......... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.................... 1 SUMMARY OF ARGUMENT.................. 2 ARGUMENT............................... 6 The Court Should Decline to Consider BNSF’s Constitutional Argument .................. 6 A. Congress Has Not Altered the Law of State Personal Jurisdiction Here .............. 6 B. Congress Not Having Acted, the Court Should Not Address Its Power to Act ..... 19 C. Congress Would Have Power to Recognize the Expanded Exercise of State Personal Jurisdiction.......................... 21 CONCLUSION ............................ 31 APPENDIX Act of April 22, 1908 .....................App. 1 Act of April 5, 1910 ......................App. 1 Act of March 3, 1911 .....................App. 2 Act of Aug. 11, 1939 .....................App. 2 Act of June 25, 1948 .....................App. 3 ii TABLE OF AUTHORITIES CASES Ashwander v. TVA, 297 U.S. 288 (1936) .................... 4, 19 Baker v. Gen. Motors Corp., 522 U.S. 222 (1998) ...................... 27 Balt. & Ohio R. Co. v. Kepner, 314 U.S. 44 (1941) ................. 12, 13, 17 Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839) ................. 7 Banks v. Greenleaf, 2 F. Cas. 756 (CCD Va 1799) (No. 959) ....... 24 Bartlet v. Knight, 1 Mass. 401 (1805) ....................... 24 Beard v. Beard, 21 Ind. 321 (1863) ....................... 23 Belcher v. Chambers, 53 Cal. 635 (1879) ....................... 27 Bissell v. Briggs, 9 Mass. 462 (1813) ....................... 24 Bond v. United States, 134 S. Ct. 2077 (2014) .................. 4, 19 Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U.S. 537 (1930) .......... 27 Buchanan v. Rucker, 9 East. 192, 103 Eng. Rep. 546 (K.B. 1808) . 23 iii Commercial Mut. Accident Co. v. Davis, 213 U.S. 245 (1909) ....................... 7 Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899) ...................... 27 D’Arcy v. Ketchum, 52 U.S. (11 How.) 165 (1851) ....... 6, 25, 26, 29 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ................. 2, 3, 16 Davis v. Farmers Coop. Equity Co., 262 U.S. 312 (1923) ...................... 12 Denver & Rio Grande W. R. Co. v. Terte, 284 U.S. 284 (1932) ...................... 12 Dep’t of Transp. v. Ass’n of Am. Rs., 135 S. Ct. 1225 (2015) .................... 19 Elliott v. Lessee of Peirsol, 26 U.S. (1 Pet.) 328 (1828) ................. 24 Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152 (1825) ............. 27 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ....................... 25 Fall v. Eastin, 215 U.S. 1 (1909) ........................ 27 Flower v. Parker, 9 F. Cas. 323 (CCD Mass 1823) (No. 4891) .... 25 Green v. Chi., Burlington & Quincy Ry. Co., 205 U.S. 530 (1907) ....................... 8 iv Hart v. Granger, 1 Conn. 154 (1814) ....................... 24 Hess v. Pawloski, 274 U.S. 352 (1927) ...................... 28 Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 579 (1914) ....................... 7 International Shoe Co. v. Washington, 326 U.S. 310 (1945) ............... 3, 6, 16, 28 Jenkins v. Putnam, 1 S.C.L. (1 Bay) 8 (SC Ct. Com. Pl. & Gen. Sess. 1784) ............................. 24 In re Keasbey & Mattison Co., 160 U.S. 221 (1895) ....................... 9 Kempe’s Lessee v. Kennedy, 9 U.S. (5 Cranch) 173 (1809) ............... 23 Kibbe v. Kibbe, 1 Kirby 119 (Conn. Super. Ct. 1786) ......... 24 Kilburn v. Woodworth, 5 Johns. 37 (NY 1809) .................... 24 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) ...................... 25 Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1856) ................ 7 M‘Elmoyle ex rel. Bailey v. Cohen, 38 U.S. (13 Pet.) 312 (1839) ................ 24 Macon Grocery Co. v. Atl. Coast Line R. Co., 215 U.S. 501 (1910) .................. 8, 9, 17 v The Marshalsea, 10 Co. Rep. 68b, 77 Eng. Rep. 1027 (K.B. 1613) ............................. 23 Mich. Cent. R. Co. v. Mix, 278 U.S. 492 (1929) ...................... 12 Michael H. v. Gerald D., 491 U.S. 110 (1989) ...................... 20 Miles v. Ill. Cent. R. Co., 315 U.S. 698 (1942) ............. 13, 14, 15, 16 Mondou v. N.Y., New Haven & Hartford R. Co., (Second Employers’ Liability Cases) 223 U.S. 1 (1912) ........................ 11 N.Y. Life Ins. Co. v. Hendren, 92 U.S. 286 (1876) ....................... 25 Old Wayne Mut. Life Ass’n of Indianapolis v. McDonough, 204 U.S. 8 (1907) .......... 7, 8 The Paquete Habana, 175 U.S. 677 (1900) ...................... 28 Payne v. Tennessee, 501 U.S. 808 (1991) ...................... 30 Pennoyer v. Neff, 95 U.S. 714 (1878) ................... passim Phelps v. Holker, 1 U.S. (1 Dall.) 261 (Pa 1788) .............. 24 Picquet v. Swan, 19 F. Cas. 609 (CCD Mass 1828) (No. 11,134) ......................... 22, 29 vi Pope v. Atl. Coast Line R. Co., 345 U.S. 379 (1953) ................ 14, 15, 16 Richards v. Jefferson County, 517 U.S. 793 (1996) ...................... 20 Rogers v. Coleman, 3 Ky. (1 Hard.) 413 (1808) ................. 24 Rose v. Himely, 8 U.S. (4 Cranch) 241 (1808) ............... 23 Scott v. McNeal, 154 U.S. 34 (1894) ....................... 20 Shaw v. Quincy Mining Co., 145 U.S. 444 (1892) ...................... 17 St. Clair v. Cox, 106 U.S. 350 (1882) ....................... 7 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) ....................... 17 Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) .................. 25 Tauza v. Susquehanna Coal Co., 115 N.E. 915 (NY 1917) ............... 7, 8, 16 Toland v. Sprague, 37 U.S. (12 Pet.) 300 (1838) ................ 22 U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) .............. 15 Underwriters Nat’l Assur. Co. v. N.C. Life & Accident & Health Ins. Guar. Co., 455 U.S. 691 (1982) ...................... 20 vii United States v. Welden, 377 U.S. 95 (1964) ....................... 16 Voorhees v. Jackson, 35 U.S. (10 Pet.) 449 (1836) ................ 23 CONSTITUTION, STATUTES, LEGISLATIVE MATERIAL, and RULES U.S. Const. art. IV, § 1 .............. 1, 24, 28, 29 U.S. Const. art. VI, cl. 2 .................. 22, 28 U.S. Const. amend. V ..................... 4, 22 U.S. Const. amend. XIV ................. passim 28 U.S.C. § 1445 (2012) ...................... 16 28 U.S.C. § 1652 (2012) ...................... 25 28 U.S.C. § 1738 (2012) ...................... 29 28 U.S.C. § 1738A (2012) ................. 19, 20 28 U.S.C. § 2403(a) ......................... 19 45 U.S.C. § 51 et seq. ........................ 3 45 U.S.C. § 56 (2012) ...................... 3, 15 Judiciary Act of 1789, ch. 20, 1 Stat. 73 .... 8, 24, 25 Act of May 26, 1790, ch. 11, 1 Stat. 122 ......... 24 Act of Aug. 13, 1888, ch. 866, 25 Stat. 433 ........ 8 Second Federal Employers’ Liability Act, ch. 149, 35 Stat. 65 (1908) ...................3, App. 1 Act of April 5, 1910, ch. 143, 36 Stat. 291 ..................passim, App. 1 viii Act of March 3, 1911, ch. 231, 36 Stat. 1087 .....................15, App. 2 Act of Aug. 11, 1939, Ch. 685, 53 Stat. 1404 .....................15, App. 2 Act of June 25, 1948, ch. 646, 62 Stat. 869 ......................16, App. 3 45 Cong. Rec. 4092–93 (1910) ................. 10 H.R. 17, 15th Cong., 1st Sess. (1817) ........... 29 H.R. 45, 13th Cong., 2d Sess. (1814) ........... 29 H.R. 46, 9th Cong., 1st Sess. (1806) ............ 29 H.R. 17263, 61st Cong. (1910) ................. 9 H.R. Rep. No. 513, 61st Cong., 2d Sess. (1910) ............................... 9, 10 S. Rep. No. 432, 61st Cong., 2d Sess. (1910) ..... 10 Liability of Common Carriers to Employees: Hearing before the Subcomm. of the Comm. on the Judiciary, U.S. Senate, on the Bill H.R. 17263, 61st Cong. (1910) .................. 10 Fed. R. Civ. P. 4(e).......................... 18 Fed. R. Civ. P. 4(e) (1963) .................... 18 Fed. R. Civ. P. 4(f).......................... 18 Fed. R. Civ. P. 4(f) (1938) .................... 18 Fed. R. Civ. P. 4(f) (1963) .................... 18 Fed. R. Civ. P. 4(h) ......................... 18 ix Fed. R. Civ. P. 4(i) (1963) .................... 18 Fed. R. Civ. P. 4(k) (1963) .................... 18 Fed. R. Civ. P. 4(k)(1)(A)..................... 18 Fed. R. Civ. P. 4(k)(1)(C)..................... 18 Advisory Committee’s Notes, 28 U.S.C. app. (2012) ................................. 18 Sup. Ct. R. 14.1(e)(v)........................ 19 Sup. Ct. R. 15.2............................. 3 Sup. Ct. R. 29.4(b).......................... 19 Sup. Ct. R. 34.5............................ 15 OTHER AUTHORITIES Am. Law Inst., Foreign Judgments Recognition & Enforcement Act (2005) ................... 20 Dorsey, Some Reflections on Not Reading the Statutes, 10 Green Bag 2d 283 (2007) ........ 15 Gibson, The Venue Clause and Transportation of Lawsuits, 18 Law & Contemp. Probs. 367 (1953) ................................. 12 Hague Conference on Private International Law, Report of the Fifth Meeting of the Working Group on the Judgments Project (Nov. 2015), https://goo.gl/zmcGTz ..................... 21 Juenger, The American Law of General Jurisdiction, 2001 U. Chi. Legal F. 141 ....... 8 Keasbey, Jurisdiction over Foreign Corporations, 12 Harv. L. Rev. 1 (1898) ..................... 8 x Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559 (2002) ................................. 24 Perdue, Personal Jurisdiction and the Beetle in the Box, 32 B.C. L. Rev. 529 (1991) .......... 29, 30 Perdue, What’s “Sovereignty” Got to Do with It? Due Process, Personal Jurisdiction, and the Supreme Court, 63 S.C. L. Rev. 729 (2012) ........ 26, 28 Restatement (First) of Judgments (1942) ....... 20 Sachs, Full Faith and Credit in the Early Congress, 95 Va.
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