A Linguistic Critique of Tag Jurisdiction: Justice Scalia and the Zombie Metonymy
68 Am. U. L. Rev. 1 (2018).
* Associate Professor, University of Oregon School of Law. For helpful comments and guidance, I thank Kevin Clermont, Antonio Barcelona, Eric Pederson, and Carl Bjerre. Thanks also to participants at the Stockholm Metaphor Festival’s workshop on topics in metonymy, the West Coast Regional Conference on Language and Law, and the Law and Society Annual Meeting in Honolulu.
This Article takes an innovative linguistic and cognitive perspective in order to construct a fresh critique of Justice Scalia’s opinion in Burnham v. Superior Court, which famously upholds “tag jurisdiction” based merely on a defendant’s transient presence in the forum state. Presence in the forum state, this Article demonstrates, was likely never anything more than a subconscious cognitive device—a metonymy—for more abstract and fairness-based concepts like the minimum contacts standard separately developed by the Supreme Court in International Shoe Co. v. Washington. Metonymy is a common and useful tool that assists people’s thought processes in law as in everyday life, and judges of an earlier era were justified in using it. But justice demands that law must mature over time, much like an individual’s own thought processes do, outgrowing metonymies that have ceased to be useful. Thus, in Burnham, Justice Scalia should have recognized the cognitive origins of the presence-in-forum criterion, instead of complacently accepting the presence-in-forum criterion as inherently persuasive. This Article poses a radical challenge to Burnham that goes far beyond policy arguments and into the linguistic roots of judicial thought. With Justice Gorsuch replacing Justice Scalia on the bench, will Burnham be buried, or will its outdated metonymic reasoning continue to lurch zombie-like onward?