personal jurisdiction, minimum contact, international shoe, sliding scale, targeting, specific jurisdiction, general jurisdiction
Commentators frequently claim that there is no single, coherent doctrine of extra-territorial personal jurisdiction, and, unfortunately, they are correct. The International Shoe case, commonly (but inaccurately) thought of as the wellspring of the modern form of the doctrine, announced a relatively straightforward, two-factor, four-permutation test that worked well for resolving most cases. In the nearly sixty-year period following Shoe, however, as the Supreme Court expanded and refined the standard, what was once straightforward and uncomplicated became serendipitous and convoluted. Two general, and generally incompatible, versions of the doctrine competed for dominance. The first, what might best be described as a totality-of-the-circumstances view, is essentially a balancing test which weighs the convenience interests of litigants against the sovereignty interests of state and federal governments to situate litigation wherever those collective interests are reasonably accommodated. The second, perhaps best described as a defendant-veto view, is a kind of single-factor test that permits defendants to escape the extra-territorial reach of a state's personal jurisdictional power by avoiding certain kinds of purposeful contacts with the state. There is some overlap between these two versions of the doctrine, of course, but also a considerable area of difference, and the two views dictate opposite results when the forum a defendant has studiously avoided is a (or even the most) convenient forum. In the decade immediately after Shoe, the competition between the two views remained in relative equilibrium, with neither view gaining a clear upper hand, but at the end of that period, in the bookend cases of Hanson v. Denckla and McGee v. International Life Insurance Company, the Supreme Court reached opposite results, relying on the defendant-veto view in Hanson and the totality-of-the-circumstances view in McGee, when the reverse outcomes seemed to make more sense. It was as if, after ten years of thinking about it, the Court was no clearer on what form the doctrine should take than it was when it started. The doctrine then sat nearly dormant for about twenty years, during which the Court made few systematic attempts to restate or reformulate it. It was not until the early 1980s, in a spate of now well-known cases (Kulko, Helicol, Ireland, Keeton, Calder, Woodson, Burger King, and Asahi, among others), that the Court got back into the field, mostly to reinforce the defendant-veto view, which had been losing ground in the lower federal and state courts. In this important series of cases the Court added considerable sophistication to the doctrine, but introduced a number of confusing elements as well. The confusion was caused principally by the Court's unfortunate propensity to use key concepts to mean more than one thing, to change doctrinal terminology without indicating that it was doing so, to use more than one term to express the same idea, to fail to ground the doctrine adequately in the Constitution (causing many to question its legitimacy), and to mix and match substantive law and jurisdictional concerns in developing doctrinal principles, all the while professing that it was not doing any of these. Lower federal and state courts were confused by all of this, of course, and began to add layers of confusion of their own, relying sometimes on one part of the Supreme Court's thinking and other times on other parts. Many courts, for example, all but eliminated the category of general jurisdiction, at least as originally understood and articulated in Shoe, by making its requirements either identical to, or less demanding than, those required for the supposedly easier-to-satisfy category of specific jurisdiction. Courts also ignored the distinction between contacts and fairness considerations in the specific jurisdiction standard, and began to treat both types of factors as interchangeable and free-standing jurisdictional tests in their own right. And still other courts defined the nexus requirement of specific jurisdiction to include almost any kind of relationship between the defendant's forum contacts and the plaintiff's claim, confusing litigants and undercutting the defendant's veto right. These and equivalent doctrinal frolics-and-detours have caused serious problems for litigants, lawyers, and judges, of course, who want to know where suits may be brought and where they will have to defend. The problem is especially serious in periods when the Supreme Court is not taking personal jurisdiction cases, since there is little prospect of reversing erroneous lower court decisions. The lack of a clear standard also exacerbates the pressure on litigants to forum shop, and forum-shopping, in turn, reinforces the familiar rule-of-law criticism of American courts, that their decisions lack legitimacy because they are based more on home court prejudice than on substantive entitlement. It may be that the Supreme Court is about to get back into the personal jurisdiction business, however, in part to clear up the difficulties described above, and in part to resolve new kinds of problems raised by cases in which the defendant's forum contacts are made over the internet. The roughly twenty year dormancy period in which the Court, historically, has not taken personal jurisdiction cases is coming to an end, for one thing, and many of the internet-contacts cases that have now begun to proliferate present interesting questions not easily resolved by existing doctrinal formulations. Early internet (mostly commercial dealing) cases were not all that different from the telephone contacts and stream-of-commerce pollution contacts cases familiar in the Shoe era, but the newest set of cases, principally those involving libel and intellectual property claims, present questions not easily answered by earlier formulations of the standard, and they have produced a wide variety of not always consistent or satisfactory responses in the lower federal and state courts. In this article I hope to sort out some of these confusions, and offer suggestions for how the Court, using the internet cases, might get the personal jurisdictional doctrine back on track.