While personal jurisdiction is intended to assess whether a defendant should be forced to defend a lawsuit in a location due to the defendant’s contacts with that forum, the doctrine has shifted to require the plaintiff to show a connection to the forum, even if the defendant otherwise has substantial contact with it. In its 2014 decision Daimler AG v. Bauman, the Supreme Court further limited the personal jurisdiction of corporate defendants in the spirit of curtailing forum shopping. But the Court’s 2021 decision concerning personal jurisdiction, Ford Motor Co. v. Montana Eighth Judicial District, and the Court’s granting of certiorari in Mallory v. Norfolk Southern Railway Co. cast doubt on the viability of Daimler. The 2021 Ford decision marks the beginning of an expansion of personal jurisdiction for corporate defendants. Justices Thomas, Sotomayor, and Gorsuch have expressed concerns over the protections afforded to corporate defendants under current doctrine. This Note elaborates on that skepticism. It traces the history of personal jurisdiction to reveal that the doctrine originates from the corporate consent and estoppel model—the very model at issue in Mallory. This Note argues that, absent guidance from Congress, courts must apply the original model—one that is inconsistent with Daimler and the nexus requirement. Finally, this Note argues that returning to the pre-Daimler and pre-nexus era produces favorable policy: it removes baseless corporate protections under the guise of the Fourteenth Amendment, clarifies the murky application of the doctrine in internet and stream of commerce cases, opens more fora for plaintiffs to allow free-market considerations to shape state law, and leaves the door open for Congress to legislate if it deems it necessary.
Ask any athlete, and they will confirm the importance of home-field advantage. Over a large sample size, home teams win between 55% and 60% of National Football League games.1 A similar phenomenon takes place in the Major League Baseball.2 In the National Basketball Association, the numbers are usually higher at around 65% home-team wins.3 Needless to say, if offered a choice, teams would prefer to play at home. The same is true for litigants. The Constitution recognizes that a litigation forum, the location in which a lawsuit is permitted to take place, is limited.4 The limitation of where a defendant may be sued is known as where the defendant is subject to the court’s “personal jurisdiction.”
Traditionally, a defendant was subject to personal jurisdiction in a particular location if the defendant was “at home” in that location. But the definition of where a corporate defendant is “at home” has changed dramatically. Prior to 2013, corporate defendants were “at home” in any location in which they engaged in “continuous and systematic” contact.5 But under the Supreme Court’s 2013 decision Daimler AG v. Bauman,6 corporate defendants are now “at home” only in the locations in which they (1) maintain their headquarters or (2) are incorporated.7 Consequently, in order for a plaintiff to sue a corporate defendant outside of these two locations, the plaintiff must comply with a significantly more complicated framework, the most perplexing aspect of which is the “nexus” requirement: in order to sue a defendant away from the defendant’s “home” and ensure that the defendant’s due process rights are not offended, the plaintiff must show a connection between the selected location and the plaintiff’s lawsuit.8
This relatively new doctrine produces peculiar results. Masquerading as due process, the doctrine inordinately shields corporations from having to defend lawsuits in locations where they previously would have had to. For example, current doctrine forbids Michigan plaintiffs from suing a New York company in California but permits an identical lawsuit in the same venue for the same injuries based on the same conduct by California-residing plaintiffs.9 Moreover, the doctrine forbids a Florida-residing plaintiff from suing a Texas corporation in Florida, even though the corporation was registered to do business in Florida; had an agent for service of process in Florida, a distributor in Florida, and a plant in Florida; had been sued for similar claims in Florida; and had itself initiated lawsuits in Florida.10 In other words, in locations where the defendant is not “at home,” current doctrine erroneously assesses the plaintiff’s connection to the litigation forum in determining whether the defendant’s due process rights have been violated. The scenarios described above, and other recent Supreme Court decisions, illuminate how far astray from its origins personal jurisdiction doctrine has drifted.11
In 2021, the Court handed down its decision in Ford Motor Co. v. Montana Eighth Judicial District Court,12 which revealed that at least three sitting Supreme Court Justices13 are skeptical of the current personal jurisdiction doctrine, arguing that it provides too much protection for corporate defendants under the guise of the Fourteenth Amendment’s Due Process Clause. In April 2022, the Court also granted certiorari to address the corporate consent and estoppel model head on.14 This model, described in further detail below, suggests that if a corporation registers to conduct business in a forum, it implicitly consents to jurisdiction in that forum and is estopped from arguing otherwise. This Note expands on the justices’ concerns and offers a way forward consistent with the way personal jurisdiction has historically been understood.
This Note will illustrate that the modern personal jurisdiction doctrine—and the nexus requirement in particular—was improperly created to curtail forum shopping.15 It will then show that while Congress has passed statutes limiting or expanding jurisdiction in other contexts,16 and has narrowed jurisdiction of federal courts through venue statutes,17 it has not done the same to limit personal jurisdiction. Therefore, the sole consideration for personal jurisdiction is due process. And under the Due Process Clause, personal jurisdiction is based on the corporate consent and estoppel model, which inquires only into the corporate defendant’s contacts with the selected forum—it is not so concerned with the plaintiff’s connection to the forum. Accordingly, Daimler and the nexus requirement are inconsistent with this traditional model. This Note will also show how a reversion to this model of personal jurisdiction will clarify the doctrine’s application to cases involving internet sales and the “stream of commerce.”18
This Note begins by synthesizing the genesis and evolution of personal jurisdiction doctrine, discussing first the nineteenth century norms and moving into how Supreme Court jurisprudence has developed under the lens of the Fourteenth Amendment. The next Part of this Note narrows in on the relatively new distinction between general and specific personal jurisdiction19 and the “nexus” requirement that has attached to the latter. The Note continues by listing reasons the nexus requirement is troublesome and difficult to apply, given the narrowing of the “at home” definition for corporate defendants.20 Finally, it ends with a preview of where the Court may be heading: given the granting of certiorari in Mallory, the Court appears to be in favor of reverting to the corporate consent and estoppel model and determining personal jurisdiction through assessing the defendant’s connection to the selected forum alone, consequently ditching Daimler and nixing the nexus requirement.
Personal jurisdiction refers to the power a court has to make rulings relating to a party.21 Practically, it refers to the location in which a plaintiff may sue a defendant and hold the defendant to answer for that lawsuit. If a defendant is subject to personal jurisdiction in a particular location, known as a “forum,” the defendant must respond to the lawsuit, and any decision impacting the defendant can be enforced in other jurisdictions.22 If a case is in state court, personal jurisdiction answers the question “which state’s court system?” If the case is in federal court, personal jurisdiction answers the question “the federal court in which state?”
Personal jurisdiction analysis is twofold: statutory and constitutional.23 States are free to pass statutes defining the personal jurisdiction of their state courts. These are referred to as “long-arm statutes,” as they extend or retract how far the “arm” of their court system can reach. Under Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure, a federal court applies the long-arm statute of the state in which it is located.24 In practice, a federal court in California will first determine whether there exists personal jurisdiction over a defendant under California’s long-arm statute. After making a determination under the long-arm statute, the court would turn to the constitutional analysis of personal jurisdiction.
The constitutional analysis of personal jurisdiction is based on the Due Process Clause of the Fourteenth Amendment. The analysis involves considerations of state sovereignty, federalism, and fairness. Because most states have long-arm statutes that permit personal jurisdiction to the limits of the constitution,25 the personal jurisdiction analysis often blends into just a constitutional question. As such, courts26 in states with to-the-limits-of-the-constitution long-arm statutes will only undertake a single analysis and have to answer one question: Is the exercising of personal jurisdiction in this forum consistent with the Due Process Clause? The remainder of this Note focuses only on the constitutional analysis of personal jurisdiction.
Another concept crucial to the understanding of this Note is the distinction between two kinds of personal jurisdiction: “general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction.”27 The former refers to a forum in which any plaintiff can bring any cause of action against the defendant.28 The latter is a forum in which, under current doctrine, plaintiffs may only bring causes of action that “arise out of or relate to” the forum.29 The specific personal jurisdiction requirement that the claim “arise out of or relate to” the forum is known as the “nexus” requirement because the plaintiff must show a “nexus” between the claim and the selected forum.
An example may help illustrate how the doctrine functions. Suppose a defendant is subject to general jurisdiction in Delaware. In that situation, a plaintiff from New York may sue the corporation in Delaware, even if there is no relation between the claim and Delaware—that is, even if the wrong alleged in the complaint took place in Maine. By contrast, suppose that the same defendant is not subject to general personal jurisdiction in Delaware. In the event that the wrong alleged in the complaint took place in Maine, the courts in Delaware would not have personal jurisdiction over the defendant and would not be able to adjudicate the dispute—this is because the plaintiff is unable to show a “nexus” between the claim and the selected forum in Delaware.
Besides the due process requirements that plaintiffs must comply with in deciding where to file a lawsuit, Congress has acted to pass statutes narrowing potential venues for litigation. Specifically, Congress has outlined three locations in which a civil action may be brought: (1) where a defendant “resides”;30 (2) where a “substantial part of the events or omissions giving rise to the claim occurred”;31 and (3) if there is no venue that fits (1) or (2), wherever the defendant is subject to the court’s personal jurisdiction.32
In situations where a plaintiff files a lawsuit in a location in which the defendant is subject to personal jurisdiction, Congress permits defendants to nevertheless file motions to transfer venue or dismiss the case.33 Congress envisioned two main reasons to permit a transfer of venue despite compliance with the requirements of personal jurisdiction. The first reason is when the plaintiff complies with the requirements of personal jurisdiction but does not comply with the requirements of the venue statute.34 For example, suppose that a corporation is headquartered in San Francisco, California (which is in the Northern District of California) and finds itself to be the defendant in a federal-law dispute35 with an employee over conduct that took place in San Diego, California (which is in the Southern District of California). If the employee files suit in the Central District of California, the defendant corporation may request a transfer to either the Northern or Southern District of California because, while the corporation is subject to personal jurisdiction in California, the Central District of California is an improper venue (it is not the venue where the defendant corporation is located,36 and it is not the location where a “substantial part of the events or omissions giving rise to the claim occurred”).37
The second reason is for convenience.38 That is, even if a plaintiff complies with the requirements of personal jurisdiction and with the requirements of the venue statutes, a defendant may nevertheless request and be granted a motion to transfer venue if “the interest of justice” so demands.39 In making the discretionary determination to transfer a case for convenience purposes, courts consider the following factors, among others: the relative ease of access to sources of proof, the cost of obtaining the attendance of required witnesses, administrative dealings of court congestion, and the local interests of having controversies decided where they took place.40 For example,41 suppose a plane company is headquartered in Great Britain and flies a plane in Scotland. The plane’s parts were manufactured in Pennsylvania and Ohio. While the company was flying the plane in Scotland, it crashed and killed everyone on board. The heirs of the passengers sued the plane company in Pennsylvania.42 The Pennsylvania court could dismiss the case under a forum non conveniens theory, concluding that the case should be tried in Scotland.43 In reaching this conclusion, the court would note that the crash had occurred in Scotland; the crash investigation had been conducted in Scotland; the witnesses are in Scotland; and the pilot’s estate, the plane’s owners, and the charter company were all located in Scotland.44
The venue statutes supplement personal jurisdiction doctrine. Importantly, though, they are acts of Congress and not judge-made interpretations of the Due Process Clause of the Fourteenth Amendment. As for the forum non conveniens doctrine, there is a common law background to the doctrine, and it existed before the ratification of the Fourteenth Amendment.45 This is crucial for originalist judges who believe that that Court should apply common law doctrines only if they existed at the time of the ratification of the amendment at issue. Of course, should Congress desire to narrow or expand the jurisdiction of federal courts and permit more or fewer fora for plaintiffs to file lawsuits, Congress is free to do so.46
The Supreme Court has historically been deadlocked in its personal jurisdiction doctrine. Justices seem to agree on dispositions but not the underlying reasoning for them.47 In March 2021, the Court handed down its decision in Ford Motor Co. v. Montana Eighth Judicial District.48 That decision doubled down on the Court’s previous personal jurisdiction decision, Bristol-Myers Squibb Co. v. Superior Court,49 in which the Court required plaintiffs to show a nexus between their claim and the forum state in order to establish specific personal jurisdiction over a defendant corporation that has long been established in the forum selected for the litigation.50 In both Ford and Bristol-Myers Squibb, the defendant corporation was not subject to general jurisdiction in the forum state despite its significant market presence there;51 in other words, the defendant corporation had purposefully availed itself of the forum state, arguably had continuous and systematic52 contact in the forum, but nevertheless was not “at home”53 there. In Ford, a plaintiff purchased a malfunctioning car outside of Montana, yet she was permitted to sue Ford in Montana because Montana was the plaintiff’s home state.54 In Bristol-Myers Squibb, a group of plaintiffs from Michigan was not permitted to sue in California (even though a group of California residents was permitted to sue there) because the Michigan plaintiffs had no connection to California.55 The plaintiffs’ place of residency was thus determinative in failing to establish personal jurisdiction over the corporation defendant and offended the corporation’s right to due process under the Fourteenth Amendment.56 Under both the first personal jurisdiction case since the passing of the Fourteenth Amendment, Pennoyer v. Neff,57 as well as under the revamped “minimum contacts” test in International Shoe,58 both Ford and Bristol-Myers Squibb would arguably be permitted to proceed in the selected fora. This Note will explain how the doctrine has evolved to the point of irreconciliation with these landmark cases.
Before delving into the history of personal jurisdiction and its development over the turn of two centuries, it is necessary to explain why it has been an area of such fierce contention. Personal jurisdiction is not about geography, not about which physical courthouse may entertain a controversy. Rather, it is about who adjudicates that controversy.59
In most states, state judges are elected by the general public.60 Accordingly, a case pending in state court is adjudicated by a judge subject to at least some public pressure. The case also has the potential of being tried before a jury composed of individuals from that state. These factors may create disadvantages for an out-of-state corporation, especially if the plaintiff is from the forum state.61 Hence the saying, “Though the courtroom be an adversarial arena, [the judge] is more than a referee . . . more than a linesman. [The judge] is the game.”62
Congress has addressed the fairness concerns of defendants being sued in state courts outside their place of residence through the mechanism of federal court removal.63 The process of removal, a product of congressional statute, allows defendants to move a case from state court—where judges are usually elected, and plaintiff-friendly state procedural law is likely to apply—to more defendant-friendly federal court if certain criteria apply.64 One such criterion is when there exists “diversity jurisdiction.” Diversity jurisdiction occurs when the litigating parties are citizens of different states.65 Corporations are citizens of the state in which they are incorporated and the state in which their headquarters is in.66 Notably, though, diversity jurisdiction is permitted only in cases of “complete diversity,” which requires all parties on either side of the litigation “v” to be citizens of different states.67 Given the complete diversity requirement, plaintiffs will oftentimes strategically sue along with a co-plaintiff from the same state as the defendant in order to preclude removal under diversity jurisdiction.68 Congress has taken steps to address these concerns as well. In class actions, defendant-corporations rely on the Class Action Fairness Act, another congressional statute that allows defendants to remove a case to federal court so long as the amount in controversy exceeds $5 million and there is diversity of citizenship.69 The Class Action Fairness Act does not require complete diversity.70
Then there is the issue of “forum shopping.” This term refers to plaintiffs seeking fora that offer the best choice-of-law and substantive law combinations to benefit their case.71 Plaintiffs also prefer to file claims in their hometown jurisdictions, where juries and judges are more likely to be sympathetic to the hometown plaintiff.72 Put another way, plaintiffs will choose to sue in locations where the law the court applies is most favorable to them and courtroom decisionmakers are more likely to favor them. One prominent example of the implications of forum shopping is the application of anti-SLAPP laws in various states and their availability in federal court.73 SLAPP stands for “strategic lawsuits against public participation.” An anti-SLAPP motion is a state-law procedural rule available in many states that allows a defendant to repel and quickly dismiss lawsuits that threaten the defendant’s free-speech rights or matters of public concern. When this motion applies, the burden shifts to the plaintiff to show a likelihood of prevailing in the lawsuit. Without such a showing, the plaintiff’s case is dismissed. Because anti-SLAPP motions are not creatures of federal law, different circuits have different interpretations of when they can apply in federal court.74 Some circuits permit the invocation of state anti-SLAPP motions in federal court in diversity jurisdiction cases while others do not.75 The difference in these circuits could mean extra litigation costs and a higher potential for settlement.76 Accordingly, the location of where a lawsuit is filed is a crucial strategic decision plaintiffs make.
Congress has not fully addressed forum shopping concerns by statute. While Congress has required certain claims to be litigated exclusively in federal court,77 Congress has few guidelines about which federal court plaintiffs are required to file in.78 This is where personal jurisdiction comes in. Personal jurisdiction’s roots are grounded in the Constitution alone, but its newfound application is in part to curtail forum shopping. The tension between personal jurisdiction doctrine’s roots and its modern significance, along with Congress’s inaction to curtail forum shopping, is the premise of this Note.
In the nineteenth century, corporations were subject to personal jurisdiction only in the state in which they were incorporated because they did not have the privilege to exist in other states.79 Other states could agree to recognize a corporation by a process called comity.80 As part of comity, states could require corporations to consent to being subject to the personal jurisdiction of the state in which they are licensed to conduct business.81 Accordingly, the estoppel model took form: if a corporation exercised corporate privileges in a state, it would be estopped from arguing that it was not subject to the personal jurisdiction of that state.82
The history83 of this model arose in the 1800s to address the “injustice”84 that would result if a corporation could not be subject to suit in a forum where it does business but nonetheless is not headquartered. States passed statutes that required corporations to consent to being sued in the state in exchange for the privilege of doing business in the state. One of the first cases to recognize this model was Ex parte Schollenberger.85 The Pennsylvania statute at issue in Schollenberger required corporations to appoint an agent to receive service that would have “the same effect as if served personally on the company within the State.”86 The statute in question did not explicitly grant jurisdiction, but the Court held that
if the legislature of a State requires a foreign corporation to consent to be ‘found’ within its territory, for the purpose of the service of process in a suit, as a condition to doing business in the State, and the corporation does so consent, the fact that it is found gives the jurisdiction, notwithstanding the finding was procured by consent.87
A few years later, the Court explicitly held that this model was constitutional.88
Importantly, the consent and estoppel model did not originally require a nexus between the litigation and the forum. Instead, courts have held that the corporation’s consent to be sued subjects the corporation to general jurisdiction in the forum. For example, in Pennsylvania Fire Insurance Co. v. Gold Issue Mining and Milling Co.,89 an insurance company based in Pennsylvania conducted business operations in Missouri and, as required by Missouri law, appointed a Missouri in-state agent for service of process.90 The insurance company contracted with an Arizona company to insure its buildings in Colorado.91 After the Colorado property was struck by lightning and significantly damaged, the Arizona company sued the Pennsylvania insurance company in Missouri over the Colorado contracts.92 The Pennsylvania insurance company argued that it was not subject to personal jurisdiction in Missouri because the contracts did not involve Missouri whatsoever; that is, there was no “nexus” between Missouri and the plaintiff’s claim.93 The Court disagreed, explaining that “the construction of the Missouri statute thus adopted hardly leaves a constitutional question open.”94 The appointment of an agent to receive service in Missouri, the Court held, showed the insurance company’s consent to be sued in Missouri.95 This line of reasoning continued in at least three other cases.96
The explicit corporate consent model could no longer hold up after the Court, in International Textbook Co. v. Pigg,97 held that states could not impede interstate commerce by denying out-of-state corporations from exercising corporate privileges in their states. Put another way, the Court forbade states from denying corporations permission to conduct business within their borders. As such, corporations no longer affirmatively consented to being subject to the personal jurisdiction of states in which they engaged in business activities.98 To remedy the doctrine, the Court, in International Harvester Co. v. Kentucky,99 held that when a corporation was “present” in a jurisdiction, it was subject to the personal jurisdiction of that forum through, presumably, an implied consent.100
Corporate “presence” proved to be a tricky term to define.101 Nevertheless, the remnants of the consent model held up well.102 Pennsylvania maintained its consent-by-jurisdiction framework and was the only state to explicitly inform corporations of what they were agreeing to by doing business in the state. Under Title 42, Section 5301(a) of the Pennsylvania Consolidated Statutes, registration to do business in Pennsylvania—which foreign corporations are required to do—constitutes consent to general jurisdiction in Pennsylvania courts.103 For a time even after International Shoe, courts continued to enforce the consent and estoppel model in Pennsylvania. For example, the Third Circuit in Bane v. Netlink104 held that there was no need to conduct a personal jurisdiction analysis (that is, to assess whether the defendant had systematic and continuous contact in the forum) because the defendant corporation consented to being subject to general personal jurisdiction in the state by virtue of the Pennsylvania statute.105 The court distinguished that situation from another Third Circuit case, Provident National Bank v. California Federal Savings and Loan Association,106 where the defendant had not registered to do business in Pennsylvania.107
However, in late 2021, the Pennsylvania Supreme Court struck down the law requiring out-of-state corporations to submit to jurisdiction as a requirement of registering to do business in the state, finding that the statute is incompatible with the Fourteenth Amendment, as interpreted in Daimler.108 The most recent Pennsylvania Supreme Court decision highlights the split over the constitutionality of such statutes. A number109 of other state high courts have reached similar conclusions, rejecting the constitutionality of jurisdiction-by-consent statutes.110 And a number of other state high courts have reached the opposite conclusion, finding that such statutes are constitutional.111 Other state high courts have used state law to reach conclusions in this area of the law.112 In April of 2022, the Supreme Court granted certiorari over the Pennsylvania Supreme Court’s decision.113
But what about states that do not explicitly by statute inform defendant corporations that they would be subject to general personal jurisdiction in the state? Nearly every state requires foreign corporations to appoint an agent to receive service of process in the state.114 Courts were split as to whether these schemes subjected corporations to general personal jurisdiction in the state. Minnesota, for example, has a statutory scheme that allows service of process over a foreign corporation through service on the Minnesota Secretary of State.115 In that situation, though, the service is valid “only when based upon a liability or obligation of the corporation incurred within this state or arising out of any business done in this state by the corporation prior to the issuance of a certificate of withdrawal.”116 Various Minnesota state and federal courts have interpreted these statutes as creating consent to general jurisdiction for registered foreign corporations.117 In Knowlton v. Allied Van Lines,118 the Eighth Circuit held that the Minnesota statute requiring a registered agent within the state creates general jurisdiction in that state when service is processed on that agent.119 Particularly, the court noted that “[t]he whole purpose of requiring designation of an agent for service is to make a nonresident suable in the local courts,” and, as such, “appointment of an agent for service of process . . . gives consent to the jurisdiction of Minnesota courts for any cause of action, whether or not arising out of activities within the state.”120
A nearly identical phenomenon has occurred in Iowa. Iowa federal courts, relying on Knowlton, found that an Iowa statute is “almost identical to that of Minnesota.”121 As such, even though it does not explicitly address jurisdictional consequences of registration, the statute confers general jurisdiction in Iowa courts.122 The same has been held to be true in Kansas123 and New Mexico.124 The Georgia Supreme Court reaffirmed the concept as well.125 And even after International Shoe fundamentally changed the personal jurisdiction analysis, several circuit courts continued to hold that consent by registration obviated the due process analysis and that states could exercise general jurisdiction based on that consent.126 This is not to say that there are no federal circuits holding to the contrary. While six circuits have found jurisdiction-by-consent statutes to be constitutional,127 five circuits reached the opposite conclusion.128 And two circuits avoided the constitutional question.129 These decisions are all in flux, given the Supreme Court’s decision in 2022 to grant certiorari and review the Pennsylvania statute.130
But “presence” and “consent” are two distinct ways of submitting to jurisdiction. Putting aside the question of whether a corporation “consents” through registering to do business—the question that the Supreme Court will aim to answer in Mallory—there is a simpler way to determine the existence of personal jurisdiction: assessing whether the corporation has engaged in systematic and continuous contact in the forum state. The Supreme Court’s guidance in Ford sheds light on where the Court may be heading on the “presence” front. The hallmarks of due process in the context of the consent and estoppel model are reciprocity and fairness.131 Ford seemed to reiterate the underlying theme of “reciprocal obligations” between a defendant and the forum as the basis for what makes the exercise of personal jurisdiction “fair.”132 In that case, because Ford Motor Company enjoyed “the benefits and protections” of state law while doing business in the forum, “allowing jurisdiction in these cases treats Ford fairly.”133
With the passing of the Fourteenth Amendment in 1868, the Supreme Court saw it proper to provide guidance on personal jurisdiction under a now-federalized due process standard. In Pennoyer,134 the Court held that a court may exercise personal jurisdiction over a party only if that party was served with process in the state seeking to adjudicate the controversy.135 As explained above, this ruling was consistent with the consent and estoppel model and the subsequent corporate presence model.
Despite Pennoyer’s overruling by International Shoe, the Court remained true to the spirit of the corporate consent and estoppel model. Pennoyer was overruled and substituted with the “minimum contacts” test in International Shoe.136 Under the new International Shoe standard, a defendant becomes subject to the personal jurisdiction of a state with which it engages in “minimum contacts.”137 The test was later refined in Hanson v. Denckla138 to define “minimum contacts” as contacts that demonstrate a defendant’s “purposeful availment” of the jurisdiction.139 In other words, a corporate defendant becomes subject to the personal jurisdiction of a forum if it takes a purposeful action to benefit from the privilege of doing business in that forum.140 Similarly, under World-Wide Volkswagen Corp. v. Woodson,141 the foreseeability of causing injury in a particular location was held not to be enough to subject a corporation to the personal jurisdiction of the courts in that location.142 Therefore, while the International Shoe test, along with its refinements in Hansen and World-Wide Volkswagen, departed from the Pennoyer service-of-process test, it remained consistent with the consent and estoppel model and the corporate presence model. “Minimum contacts” and “purposeful availment” became the tests to determine whether a corporation was “present” in a forum such that it should be subject to the personal jurisdiction of the forum. Foreseeability of injury, on the other hand, is not synonymous with corporate presence and therefore was not a basis for personal jurisdiction, just as a corporation cannot be “present” in a location based on foreseeability of injury alone and cannot be said to have “consented” to jurisdiction based on foreseeability of injury alone. Applying the new test, the Court in McGee v. International Life Insurance Co.143 found that a California court could subject a Texas insurance company to its personal jurisdiction, even though the insurance company had a single policy contract with a California resident.144 The corporation was found to have been present in California because it entered into a contract directly in California.145
The adherence to the origins of the personal jurisdiction consent and estoppel and corporate presence model did not last. In Burger King v. Rudzewicz,146 the Supreme Court subtly revised its test for personal jurisdiction beyond McGee and bifurcated what was previously a one-step “minimum contacts” test.147 The Court fractured the original intention of International Shoe, holding that personal jurisdiction can be established if two elements are met: (1) the defendant engaged in minimum contacts/purposeful availment of the forum state; and (2) the subjugation of personal contacts does not offend “traditional notions of fair play and substantial justice.”148 The Court, in a split decision,149 later created five factors by which to determine whether establishing personal jurisdiction over an out-of-state defendant would violate “traditional notions of fair play.”150
Two concurrences are most telling in just how far this doctrine has gone adrift. Justice Brennan’s concurrence in Asahi v. Superior Court argued that a defendant’s placing of a product into the stream of commerce may very well satisfy the minimum contacts prong but that it would not satisfy the “fair play and substantial justice” prong. That is, showing minimum contacts is not enough.151 Justice John Paul Stevens, in concurrence, agreed that jurisdiction would be “unreasonable and unfair,” but he did not join Justice O’Connor’s opinion, in part because the Court should not have even considered minimum contacts. He wrote that “it is not necessary to the Court’s decision. An examination of minimum contacts is not always necessary to determine whether a state court’s assertion of personal jurisdiction is constitutional.”152 Minimum contacts, however, is the key framework under which corporate presence is determined.153
Under current doctrine, a defendant is subject to the specific personal jurisdiction of a forum if the controversy “arises out of” or “relates to” the defendant’s contact with the forum state. This was first hinted at in Shaffer v. Heitner,154 in which the Court held that in rem jurisdiction—jurisdiction based solely on the presence of a defendant’s property in the forum—is insufficient on its own to establish personal jurisdiction.155 In Shaffer, plaintiffs filed a shareholder derivative suit against a corporation and corporate executives.156 The basis for personal jurisdiction in the selected forum was the defendant’s property in the forum. The Court held the following:
The presence of property in a State may bear upon the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation, as for example, when claims to the property itself are the source of the underlying controversy between the plaintiff and defendant, where it would be unusual for the State where the property is located not to have jurisdiction. But where, as in the instant quasi in rem action, the property now serving as the basis for state-court jurisdiction is completely unrelated to the plaintiff’s cause of action, the presence of the property alone, i.e., absent other ties among the defendant, the State, and the litigation, would not support the State’s jurisdiction.157
The Court further explained that
although the presence of the defendant’s property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State’s jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum.158
In making its determination, the Court acknowledged that it was backtracking from the “long history of jurisdiction based solely on the presence of property in a State”159 by now requiring a “relationship among the defendant, the forum, and the litigation” in order to establish personal jurisdiction.160 Therefore, the Court engaged in a policy analysis in its departure from the traditional doctrine. It did so presumably to curtail the shareholders’ forum shopping, despite the fact that the defendant corporation was “present” in Delaware due to its property in the state. As such, the Court looked beyond the original understanding of personal jurisdiction. Under the “long history of jurisdiction,” personal jurisdiction could be established “based solely on the presence of property in a State.”161 Even under the “minimum contacts” test from International Shoe, if a defendant owns property in a state, then that defendant has the minimum contacts necessary to subject it to personal jurisdiction in that forum. Given that Congress has provided no guidance on jurisdiction besides the venue statutes, the proper remedy for defendants faced with lawsuits in locations they prefer not to litigate in is to seek to transfer the case to a more appropriate venue.162
In future cases, the Supreme Court attempted to assert that the nexus requirement is, in fact, rooted in the original understanding of the Fourteenth Amendment’s due process standard. In Daimler AG v. Bauman,163 the Court explained that the concept of “reciprocal fairness” between corporations and the states in which they conduct business implies a nexus requirement. The Court never attempted to argue that the nexus requirement is rooted in the Pennoyer test, but the Court quoted a passage in International Shoe in support of its argument:
The exercise of th[e] privilege [of conducting corporate activities within a State] may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.164
But the reliance on International Shoe for this proposition is not entirely accurate. While International Shoe blessed the exercise of jurisdiction in cases where the suit arose out of the defendant’s contact with the state, it explicitly left open the possibility of the exercise of jurisdiction without such a nexus requirement:
While it has been held in cases on which appellant relies that continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity, there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.165
Historically, regarding the personal jurisdiction of corporations, there were instances in which a nexus requirement was explicitly rejected, that is, situations in which the exercise of jurisdiction was upheld despite the lawsuit not arising from the defendant’s contact with the forum.166
While the origins of the nexus requirement have to do with the defendant’s presence connecting with the litigation filed against it, the nexus requirement has now shifted to require the plaintiff’s connection with the forum state as well. The case cited by recent decisions for this proposition is Helicopteros Nacionales de Colombia, S.A. v. Hall.167 But importantly, Helicopteros’s understanding of “general jurisdiction” differs from what the term means today. Heliopteros specifically maintains that[e]ven when the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State, due process is not offended by a State’s subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation.168
The Court cited Perkins v. Benguet Consolidated Mining Co.169 for this proposition. In Perkins the Court found that a foreign corporation not incorporated or headquartered in Ohio could be subject to general jurisdiction in Ohio in a suit filed by a nonresident of Ohio when the cause of action did not arise out of or relate to the forum because “the foreign corporation, through its president, ‘ha[d] been carrying on in Ohio a continuous and systematic, but limited, part of its general business,’ and the exercise of general jurisdiction over the Philippine corporation by an Ohio court was ‘reasonable and just.’ ”170 In other words, Helicopteros does not require a nexus between the litigation and the forum so long as there is a “continuous and systematic” existence of the corporation in the forum.171 Presumably, then, Helicopteros only requires the plaintiff to show that the litigation “arises out of” or is “related to” the forum in situations where the defendant is not “continuos[ly] and systematic[ally]” present in the forum.172
The root of the confusion regarding the nexus requirement is that it was created before the concepts of “specific” and “general” jurisdiction existed or were properly defined. The Helicopteros court, relying on Perkins, held that if a corporation’s presence was “systematic” and “continuous” in a forum, then it would be subject to general jurisdiction in that forum such that no nexus is required at all.173 This is no longer the case today. A major reason why this is no longer the case is because of a prophetic article written by two Harvard Law School professors, which influenced the Court significantly.174 These professors have dubbed the terms we currently refer to as “general jurisdiction” and “specific jurisdiction,” while also defining the two to their near identical meanings in the current doctrine.175 The Court in Daimler adopted the policy proposed by the article, holding that a corporation is subject to general jurisdiction only in its place of corporation and its principal place of business.176 There is one crucial problem with the article, however: it is not premised on the Due Process Clause of the Fourteenth Amendment; instead, it is premised on creating the best policy for which to adjudicate matters and includes forum shopping and convenience for the parties as some of its major supporting propositions. But the underlying reasoning for personal jurisdiction is not convenience or effective policy—these are considerations Congress ought to consider in statutes dictating proper venues for litigation. The sole consideration in personal jurisdiction jurisprudence is due process.
After the terms general and personal jurisdiction were given their current definition, the Court in Bristol-Myers Squibb applied the Helicopteros rule without consideration of the Helicopteros Court’s understanding of general jurisdiction.177 As a result, it muddied the waters significantly. In Bristol-Myers Squibb, a group of medicine users sued in California state court a corporation that manufactured the drugs in California.178 Some of the plaintiffs were not California residents.179 The Court held that the non-California plaintiffs could not sue in California because there was no nexus between their litigation and the forum; the non-California plaintiffs’ claims did not “arise out of” or “relate to” California.180 Put another way, the Court held that it violated the defendant’s due process right to be sued in California by one group of plaintiffs but not another group of plaintiffs for the same cause of action and the same set of events, and the differentiating factor was the plaintiffs’ place of residency181 This analysis of the plaintiffs’ connection to the forum is the current understanding of personal jurisdiction, specifically the nexus requirement.
Notably, for the sake of judicial economy, the Bristol-Myers Squibb litigation was consolidated through multi-district litigation, commonly referred to as “MDL,”182 and pretrial proceedings for both groups of plaintiffs took place jointly in California. Through the MDL process, the two groups of plaintiffs could litigate only pretrial issues together in California without regard to personal jurisdiction. Courts have struggled with the application of personal jurisdiction to MDL proceedings.183 While personal jurisdiction in MDL is outside the scope of this Note, this set of events illustrates that courts take no issue with altering personal jurisdiction doctrine to promote judicial economy and the MDL process, yet they will continue to unnecessarily protect corporate defendants by rigidly upholding the nexus requirement in cases that are not large enough to consolidate through the MDL process.184
Based on the above explanations, personal jurisdiction doctrine has strayed away from its original roots of the Fourteenth Amendment and has drifted into a way of curtailing forum shopping. In many circles, this reason alone is enough to demand alteration.185 However, as I explain below, not only is the current doctrine inconsistent with the original understanding of personal jurisdiction, but it also causes complications in the context of internet sales and stream of commerce cases. In this section, I detail the current doctrine’s shortcomings. In the following section, I preview a direction the Court may be heading: a reversion to the original understanding of personal jurisdiction based on the corporate consent and estoppel model.
While the inconsistency with prior case law and the historical application of personal jurisdiction doctrine are by themselves sufficient to question the nexus requirement in its current form, the present standard is also problematic from a policy perspective. It provides corporations with additional protections not mandated by the Constitution—and nonexistent under statute—under the guise of due process.
Take Ford as an example. The Court held that the Ford Motor Company can be subject to personal jurisdiction in Montana for a case involving Ford Explorer vehicles because it sells Ford Explorers in Montana such that it “cultivated a market” there.186 But, presumably, if Ford sold different models in Montana and did not sell Explorers, there would be no jurisdiction over the plaintiff’s case in Montana because requiring Ford to answer a complaint in Montana under those circumstances would violate the Due Process Clause. This framing of the “market” being “cultivated” is shaky at best. Does it matter which year Ford started selling the Explorer in Montana? What if the model in question was older than the models Ford has sold in Montana? Does the trim of the model matter? What about the model’s color?187
The Court also held that the plaintiffs’ contacts with Montana are determinative.188 The Court held that if Ford sells Explorers in Montana, then Montana can decide any case involving an Explorer accident within its borders, regardless of how it got there, so long as the plaintiff has a connection to Montana.189 So, no matter how extensive Ford’s contacts with Montana might be, the determinative factor is the plaintiff’s connection with the forum. But what difference does it make to Ford whether the Explorer crash took place in Montana or in Idaho? If Ford already has significant contact with Montana such that it has cases pending in Montana, Ford would not be required to conduct any additional expenses to defend itself in Montana. Requiring Ford to defend one lawsuit in Montana while allowing Ford to dismiss an identical lawsuit solely on the basis of the plaintiff’s place of residency and connection to Montana is perplexing. Requiring Ford to defend the first lawsuit is no more a violation of Ford’s due process rights than it is to require Ford to defend against the second lawsuit.
Similarly, Bristol-Myers Squibb emphasized that the Michigan plaintiff’s suing the defendant corporation in California violated the defendant’s due process rights because the Michigan plaintiffs “did not ingest Plavix in California.”190 Nevertheless, a group of plaintiffs from California was permitted to sue in California for the same cause of action relating to the same drugs. The only difference between the two groups of plaintiffs is where they ingested the drugs. But that fact should not have been determinative. What difference does it make if a Texan brings his pills on a California vacation and ingests them there or if the Texan ingested the pills in Texas? 191 It is odd to argue that these hypothetical cases, as opposed to the ones previously before the Court, would not violate the defendant’s due process rights by allowing jurisdiction in each of these otherwise-identical cases. Figures 1 through 4 below illustrate how the doctrine plays out.
Figure 1. Nexus with Forum State Through Plaintiffs’ Residence
Figure 2. Nexus with the Forum State Through Plaintiffs’ Vacation
Figure 3. No Nexus Despite Defendant’s Continuous
Figure 4. Scenarios Analyzed Under the Current Doctrine
Did the Manufacturer purposefully avail
YES. It sold pills in CA.
YES. It sold pills in CA.
YES. It sold pills in CA.
Do the plaintiffs have
YES. They bought and ingested the pills in CA.
YES. They ingested the pills
NO. They did not buy or ingest the pills in CA.
CA courts have personal jurisdiction over CA plaintiffs’ claims.
CA courts have personal jurisdiction over TX plaintiffs’ claims.
CA courts do not have personal jurisdiction over TX plaintiffs’ claims.
The Ford decision also raises questions about the general jurisdiction framework. The Court seems to erode that concept, perhaps unintentionally. If Ford can “cultivate a market” in a forum, then it can be subject to personal jurisdiction for claims relating to that forum, so long as the plaintiff has a connection to the forum as well. As explained above, the “market” being “cultivated” can prove to be a difficult term to define. And requiring the plaintiff’s connection to the forum results in illogical and arbitrary grants and denials of jurisdiction, as illustrated in the above figures.
Under current general jurisdiction jurisprudence, a corporation is subject to general jurisdiction wherever it is “at home,” which has been held to mean its place of incorporation and headquarters.192 But why is it any more compliant with due process for a plaintiff residing in Idaho to sue General Motors (incorporated in Delaware and headquartered in Michigan) in Delaware and Michigan as opposed to Texas, where the company has had a factory and has done business since 1954?
The Court’s attempt at showing that Ford cultivated a market in Montana begins to bleed into the general jurisdiction framework. It would be a much simpler and more predictable test to ask whether Ford has “minimum contacts” such that it “purposefully availed” itself of the privilege of doing business in Montana, and consequently, it is subject to personal jurisdiction in Montana.
Justice Sotomayor pointed this out in her Daimler concurrence, noting that limiting general justification to a corporation’s principal place of business and its place of incorporation would lead to “deep injustice.”193 She pointed out that “the majority’s approach unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries.”194 She then called into question the special protections corporations would be receiving under the newly defined due process requirements:195 “Put simply, the majority’s rule defines the Due Process Clause so narrowly and arbitrarily as to contravene the States’ sovereign prerogative to subject to judgment defendants who have manifested an unqualified ‘intention to benefit from and thus an intention to submit to the[ir] laws.’ ”196
There is some indication based on Ford, the Court’s personal jurisdiction case from 2021, that at least some of the Justices are questioning the existing precedent. In particular, Justice Gorsuch’s Ford concurrence, which was joined by Justice Thomas, expressed skepticism of the “at home” test for corporations regarding general jurisdiction.197 He wrote, “[I]t seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.”198
The current doctrine does not adequately address how courts should apply it to cases involving internet sales. When it comes to determining purposeful availment, courts look to whether online conduct was purposefully directed at the forum state.199 Courts also use a sliding scale to determine whether the contacts constitute purposeful availment.200 For example, if a website is passive because it only advertises or posts information without any option for users to interact with it, the website may not provide a basis for personal jurisdiction. On the other hand, if the website involves making transactions or entering into contracts through knowing and repeated transmission of files over the internet, personal jurisdiction seems more likely. If the website falls in between these two categories of interactivity, the level of the interactivity and the nature of the website must be examined. In other words, the greater the commercial nature and interactivity associated with the website, the more likely the website operator engaged in purposeful availment of the forum state.
As a corollary to the sliding scale, courts have also recognized that tortious conduct that takes place online can subject a defendant to personal jurisdiction.201 If the defendant’s actions were intentional, uniquely or expressly aimed at the forum state, and caused harm in the forum state, personal jurisdiction is proper there, because the defendant is said to have “purposefully directed” actions at the forum state.202 A refined test examines whether the defendant knew and intended the consequences of its actions to be felt in the forum state, not just that the defendant knew where the plaintiff lives.203 That is, if the mention of the state is incidental and not included for the purposes of having the consequences felt in the forum state, there is likely no personal jurisdiction there.
For example, suppose that an Idaho newspaper, which distributes only in Idaho and the bordering towns in Washington State, publishes a story defaming a California celebrity. Can it be said that the newspaper intended the consequences of its story to be felt in California, given that it does not distribute in California? The newspaper has no contacts with California, so how can it be said that the newspaper purposefully availed itself of the privilege of doing business in California?
The Ford case adds an additional element that muddies the water even more. What if a corporate defendant “cultivates a market” in a forum? Under Ford, plaintiffs would be permitted to sue in that forum so long as they have a nexus to that market. In the above hypothetical, would the California celebrity be permitted to sue in Washington State because of the market the newspaper cultivated there? Also, as explained above, it is difficult to define the product that a company cultivates a market for, and framing the market being cultivated is highly malleable. For example, does Amazon cultivate a market for delivery in California? Or is the cultivated market analyzed by specific products, as it was in Ford? Assuming the latter, what is the justification of looking at the plaintiff’s connection to the forum to assess the due process rights of the defendant?
There is no agreed-upon framework by which to address stream of commerce cases. A “stream of commerce” case refers to a situation where a manufacturer sells products to a regional distributor and the regional distributor sells the products elsewhere. For example, assume that a car company manufactures its cars in China and then sells the fully manufactured cars to a distributor in California and no distributors in Oregon. Then assume that the California distributor sold the cars to a dealership in Oregon, and an Oregon resident bought a car from that dealership. If the car malfunctions, may the Oregon resident sue the manufacturer in Oregon? The question is whether the car manufacturer engaged in minimum contacts or purposefully availed itself of doing business in Oregon through the stream of commerce that brought its product to Oregon.
Justice White, in dicta in in World-Wide Volkswagen, suggested that there may exist personal jurisdiction over a manufacturer in a forum even if the manufacturer itself did not sell in that forum; he wrote that personal jurisdiction would exist in such a situation only if the sale in the forum was “not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly the market for its product.”204
The Court has been unable to agree on what these instructions practically mean. Justices Breyer and Alito understand this to refer to the number or substantiality of the sale in the forum.205 Justice O’Connor’s plurality opinion in Asahi held that there would be personal jurisdiction over a defendant manufacturer only if Justice White’s criteria were satisfied and the manufacturer engaged in “additional conduct . . . [that indicates] an intent or purpose to serve the market in the forum state.”206 This could include designing the product for the forum state, advertising the product in the forum state, or establishing channels for providing regular contact to consumers in the forum state. Justice Brennan, writing for the split court in Asahi, indicated that if the maker foresees and benefits from the contact with the forum, personal jurisdiction is satisfied, even without an intentional act targeting the forum.207
The Court’s split continued in McIntyre, in which the Justice Kennedy plurality held that a foreign manufacturer that sold products to a U.S. distributor was not subject to personal jurisdiction in the states the distributor subsequently distributed to.208 Justice Ginsberg dissented and wrote that, in her view, there is personal jurisdiction in a state when a manufacturer chooses a distributor who distributes to the entire United States.209 Justices Breyer’s and Alito’s concurrence explained that personal jurisdiction should be dependent on the number of products sold in the state.210
Figure 5 synthesizes current steam of commerce doctrine:
Figure 5. Current Stream of Commerce Doctrine
The Ford case presented a slightly nuanced version of the hypothetical discussed above. In Ford, the vehicle that malfunctioned was designed, manufactured, and sold outside of Montana.211 Later resells and relocations by consumers brought the vehicle to Montana, where it malfunctioned.212 As such, it was only through the “stream of commerce” that the particular vehicle at issue was brought to Montana.213 The Court united in its holding that Ford’s advertising in and manufacturing in Montana constituted sufficient purposeful availment, and held that the plaintiffs had a sufficient nexus to the forum simply because the car malfunctioned in Montana, even though they did not purchase the vehicle in Montana.214 However, if, through the stream of commerce, the plaintiffs were in the neighboring state of Idaho, then presumably there would be no nexus and no personal jurisdiction in Montana, even though the facts—and Ford’s purposeful availment of the Montana forum—would be identical. It is unclear why Ford’s due process rights would be violated if an Idaho plaintiff sues Ford in Montana but would not be violated if a Montana plaintiff who purchased Ford’s product in Wisconsin and drove to Montana sues in Montana.
Figure 6. The Ford Litigation
A reversion to the constitutional underpinnings of personal jurisdiction doctrine means removing the corporate protections available under the guise of the Fourteenth Amendment. The case is easier for removing plaintiffs’ requirement to show a nexus to the litigation when suing a corporation in a forum in which the corporation has systematic and continuous contact. As explained above, the nexus requirement came into being with the explicit understanding that it is a requirement only if the corporate defendant has no systematic and continuous contact with the forum. In other words, the case is easy for overruling Daimler and removing the narrow understanding of general jurisdiction, finding instead that general jurisdiction exists wherever corporations implicitly consent to personal jurisdiction through systematic and continuous contact.
However, some Justices may propose going a step further and removing the distinction between specific and general jurisdiction as it is inconsistent with the Court’s original understanding of personal jurisdiction. Accordingly, plaintiffs would be permitted to pursue causes of action in any forum in which a corporation engages in minimum contacts sufficient to constitute purposeful availment without showing a nexus to the litigation. Corporate defendants would be permitted to transfer cases under the venue statutes alone.
In situations where a corporation had purposefully availed itself of a forum in a previous one-off occurrence, the claim brought in that forum must allege conduct that took place during the purposeful availment of the selected forum.215 That is, a corporation would not be able to retroactively cease purposeful availment.
I have already explained why this model is consistent with the original understanding of personal jurisdiction. In many circles, this reason alone would be sufficient to adopt it. However, in this Part I detail why a reversion to this original understanding is good policy as well. It increases fora for plaintiffs, makes for a more predictable personal jurisdiction doctrine (especially in cases involving internet sales and the stream of commerce), and leaves room for Congress to act should it find the need to.
One avenue of development post-Ford envisions significantly expanding general jurisdiction in the way it is understood today. This would mean overruling the holding in Daimler, which permits general jurisdiction over a corporation only in its principal place of business and place of incorporation.216 As explained above, the case is easy to revert to the pre-Daimler jurisprudence, where general jurisdiction existed in each location where a corporation engaged in continuous and systematic contact with a forum, because that was the original understanding of personal jurisdiction. Nothing in the original understanding of personal jurisdiction, early cases dealing with the doctrine, or the Fourteenth Amendment compels affording corporations protections from being forced to defend lawsuits in fora besides their place of incorporation and headquarters. Such protections limiting personal jurisdiction can only come from statutes, and Congress has not legislated in the arena of personal jurisdiction.
However, assessing personal jurisdiction solely through the lens of purposeful availment reveals that the concept of general jurisdiction is unnecessary, especially after it was eroded in Ford. Ford held that if a corporation systematically serves a market, and the plaintiffs are from that forum state, it is as if there is general jurisdiction for those specific plaintiffs in the forum.217 But if a corporation is already prepared to defend against lawsuits in a particular jurisdiction, it does not offend due process rights to require the corporation to defend against all lawsuits in that jurisdiction, subject to transfer of venue “in the interest of justice.”218
Furthermore, as Douglas D. McFarland points out in his scholarship,
The original, unpolished International Shoe test is a one-step, unitary test. A court is not required to find “minimum contacts” and “fair play and substantial justice.” Neither is a court required to find “minimum contacts” or “fair play and substantial justice.” The opinion requires a court find “minimum contacts with [the state] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”219
Given this understanding, it becomes clear that it is more consistent with the Due Process Clause and International Shoe to allow jurisdiction for all claims in a forum where the defendant corporation engaged in “minimum contacts.”220 There need not be a difference between the type of claim permitted to originate in that forum. In other words, personal jurisdiction in a forum should be defined by defendant, not by claim. If a defendant is subject to personal jurisdiction in a particular location, then that defendant should be subject to personal jurisdiction in that location for all claims and should be permitted to transfer cases under the guidelines provided by Congress alone. The following figure is identical to Figure 4 above, referencing the three scenarios in Figures 1, 2, and 3, but it includes an extra row showing how the ultimate conclusion would change should Daimler be overruled.
|Figure 7. Scenarios Analyzed Under the Consent and Estoppel Model|
|Scenario #1||Scenario #2||Scenario #3|
|Did the Manufacturer purposefully avail itself of CA?||YES. It sold pills in CA.||YES. It sold pills in CA.||YES. It sold pills in CA.|
|Do the plaintiffs have a “nexus” to CA?||YES. They bought and ingested the|
pills in CA.
|YES. They ingested the|
pills in CA.
|NO. They did not buy or ingest the|
pills in CA.
|Conclusion under current doctrine||CA courts have personal jurisdiction over CA plaintiff’s claims.||CA courts have personal jurisdiction over TX plaintiff’s claims.||CA courts do not have personal jurisdiction over TX plaintiff’s claims because there is no nexus.|
|Conclusion without Daimler||CA courts have personal jurisdiction because the manufacturer purposefully availed itself of California law.||CA courts have personal jurisdiction because the manufacturer purposefully availed itself of California law.||CA courts have personal jurisdiction because the manufacturer purposefully availed itself of California law.|
A straightforward and predictable test for personal jurisdiction solves issues relating to internet sales cases. Internet sales would be analyzed in the same way as all other sales cases: if the seller does business in the forum, then the plaintiff should be permitted to sue the seller in that forum. Doing business means selling a product in that forum. If a seller wants to avoid being subject to personal jurisdiction in a particular forum, then it can choose not to sell in that forum.
Take, for example, a 2021 Third Circuit case221 involving a lawsuit against Imgur and Reddit, two internet companies, alleging that the companies were compliant in an authorized use of the plaintiff’s likeness when a photo of her in a convenience store began circulating on these websites in an advertisement for erectile dysfunction and dating websites. Living in Pennsylvania, the plaintiff decided to sue Imgur and Reddit in Pennsylvania, despite knowing neither the convenience store’s location nor how the image was posted online. Both companies conceded that they had purposefully availed themselves of the privilege of doing business in Pennsylvania.222 They nevertheless argued that their minimum contacts with Pennsylvania were not related to the litigation—in other words, they argued that there was no nexus between the plaintiff’s claim and the forum. The Third Circuit agreed with the District Court’s dismissal for lack of personal jurisdiction.223
There are troubling implications with this holding. First, a plaintiff is required to do additional research before the opening of discovery to determine where online harm originated. The court found unconvincing the argument that personal jurisdiction is proper in Pennsylvania because that is where the harm took place. Second, the court’s attempted distinction224 from Ford draws an arbitrary line. Just as in Ford, in which the motor company “systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those States,”225 here, the internet companies systematically served a market for the very product that was used to cause the harm—the platform in which the unauthorized posting of the plaintiff’s photo took place.
In other words, distinguishing the type of product that the market was “systematically served” with is unpredictable and malleable. A much more straightforward approach would be to look only at whether Reddit and Imgur continuously and systematically served the market, which they in all likelihood did. And even if they did not continuously and systematically serve the market, they certainly had minimum contacts with Pennsylvania such that they purposefully availed themselves of the state. The burden would then be on the defendant corporations to move for a transfer of venue. The presumption should be that due process is not violated because of the companies’ purposeful availment within the forum. If the corporate defendants seek to transfer venue, they would need to provide evidence for why there is a more suitable venue.
Accordingly, removing the nexus requirement and analyzing personal jurisdiction solely through purposeful availment—and assessing whether the online activity is in fact a purposeful availment—resolves the issue. To be clear, a company may “cultivate a market” in a forum without ever stepping foot into that forum.226 As such, in the case described above, the defendants Imgur and Reddit would be subject to personal jurisdiction in the selected forum because of their admitted purposeful availment and presence in the forum.
This approach is consistent with other cases that have analyzed the issue of internet sales: under current doctrine, a corporate defendant can expect to be subject to personal jurisdiction in a venue in which a “substantial number of copies are regularly sold and distributed.”227 In Keeton v. Hustler Magazine, Inc.,228 the Supreme Court upheld the exercise of jurisdiction in New Hampshire over a nonresident magazine publisher defendant.229 The Court reasoned that although the magazine publisher had a nationwide audience and had not targeted the forum particularly, it should reasonably anticipate an action “wherever a substantial number of copies are regularly sold and distributed.”230 The same should be true when it comes to internet sales. Therefore, if a corporation wants to avoid being subject to personal jurisdiction in a particular location, it may cease its business operations in that state.231
A reversion to the original understanding of personal jurisdiction would simplify the analysis in stream of commerce cases. Removing the nexus requirement shifts the analysis solely to determining whether the defendant purposefully availed itself of a forum. Courts would look not at whether the plaintiff’s alleged harm has a connection to the forum, since these are venue concerns, not due process concerns.
Instead, courts would assess, as the Court did in Ford, whether the manufacturer “cultivated a market” in the forum state such that it is fair and just to require the defendant to defend a lawsuit in that jurisdiction. As with internet sales, if a manufacturer does not want to be subject to personal jurisdiction in a particular state, it may direct its distributor not to distribute products into that state.232 Without such instruction, and if the distributor supplies products in a state, the manufacturer would have minimum contacts with that state that constitute purposeful availment. Under the original understanding of personal jurisdiction, any plaintiff would be permitted to sue the manufacturer in that state, irrespective of whether the plaintiff’s cause of action arises from the manufacturer’s contacts. The manufacturer would then be permitted to transfer the case using the venue statutes.
It is clear that reverting to the previous personal jurisdiction doctrine would pave a path to forum shopping.233 As an initial matter, one must ask whether the negative effects of forum shopping warrant such significant constitutional maneuvering to counter the practice. Perhaps a free market that permits forum shopping is beneficial, as some scholars have argued.234 Forum shopping may cause beneficial competition among states to alter their laws if they want to stimulate businesses.235 Just as a company considers taxes, state law, and other benefits, so too should companies consider being subject to personal jurisdiction in a state if they want to maintain a presence in that state.236
Some scholars have pointed out that the possibility of forum shopping provides judges with incentives to make the law more pro-plaintiff and that these judges’ actions have the possibility of creating wide-ranging effects, given that their courts will likely attract a disproportionate share of cases.237 Professor Dan Klerman points to several examples of this phenomenon taking place, the most prominent being the patent-plaintiff-friendly Eastern District of Texas and plaintiff-friendly mass tort jurisdictions such as Madison County, Illinois. Both of these venues have seen a dramatic uptick in the number of claims filed there.
As a result of these observations, scholars conclude that “[c]onsideration of forum selling helps justify constitutional constraints on personal jurisdiction. Without constitutional limits on jurisdiction, some courts are likely to be biased in favor of plaintiffs in order to attract litigation.”238 However, these policy considerations are for Congress to consider. The solution to these concerns is not judge-made constitutional limits on jurisdiction, because the Constitution is silent on forum shopping.239 Instead, the solution may be statutory limits on jurisdiction.
It goes without mentioning that parties engage in forum shopping in drafting forum-selection and choice-of-law clauses, which require any dispute arising from a transaction to be filed in a particular location and apply particular law.240 If the Constitution prohibits forum shopping, it presumably prohibits forum shopping no matter the context and whether both parties engage in it. Given that courts have continuously upheld forum selection and choice-of-law clauses,241 it cannot be said that forum shopping is per se unconstitutional.
More fundamentally, it is important to remember that personal jurisdiction is rooted in due process. Those who argue that it is the Court’s, rather than Congress’s, job to curtail forum shopping assert that impartial judging is a core concept of due process and, as such, personal jurisdiction is the proper route to address these concerns. However, this argument fails to consider that corporations have the option to remove themselves from being subject to personal jurisdiction wherever they feel the judging would not be impartial.242 Therefore, so long as the defendant purposefully availed itself of a forum, the defendant should be prepared to face a lawsuit in the forum, irrespective of whether the Constitution permits forum shopping.
Furthermore, should forum shopping cause such significant burdens, or should the public demand reform, Congress has authority to act. Congress’s venue statutes currently permit parties to transfer venues in cases of forum shopping,243 and Congress has permitted removal to federal courts specifically to address bias in state courts.244 In cases where the defendant is subject to personal jurisdiction in a forum, the defendant may, if it is more convenient for witnesses or collecting evidence, move to transfer the case to a different jurisdiction.245 Various articles have also proposed statutes that codify personal jurisdiction.246
There is merit to the argument that corporations should be permitted to organize their business strategically to avoid lawsuits in unfavorable locations. This is especially true in situations where the removal statutes do not permit a corporate defendant to remove a proceeding to federal court.247 The way the Court is heading comports with the notion of strategic business organization. Corporations may choose to engage in business in locations by considering whether the risk of liability is worth the profits of doing business in the forum. Just as corporations assess tax, employment law, and various other factors, so too should personal jurisdiction be another factor. This potential future course undoubtedly increases the fora where a business may be sued, and it may encourage states to pass laws that are more plaintiff friendly. The free market should correct any radical laws because corporations can choose whether to engage in commerce in a particular forum based on the laws that forum passes.
True, without Daimler, corporations that engage in internet sales would be subject to personal jurisdiction in many more locations than they otherwise would have been. But these corporations can decide as a matter of corporate policy not to sell to individuals located in a certain jurisdiction for lack of desire to be forced to defend a lawsuit there.248 To be clear, a corporation would not need to suspend access to its passive website in certain locations to avoid being subject to personal jurisdiction there. Making a website available solely for consumer browsing (not purchases) in a certain location would not constitute “purposeful availment” because the website would be passive in nature249 and the corporation’s contact with website visitors would be unilateral action on the part of the website browsers, which the Court has already ruled is insufficient to constitute “purposeful availment.”250 For similar reasons, a corporate defendant would not be subject to personal jurisdiction in a forum if, by the stream of commerce, one of its products makes its way into a state where the corporation does not “serve [the] market.”251 Therefore, to avoid being subject to personal jurisdiction in certain locations, a corporation can decide not to cultivate a market in the locations where it wants to avoid defending lawsuits.
Another consideration is the discretionary nature of transfer of venue and choice of law. Review of personal jurisdiction is a matter of law that is conducted de novo.252 By contrast, transfer of venue is discretionary and is conducted under an abuse of discretion standard.253 But appellate courts have not been shy to tell the district courts they have abused discretion when it comes to motions for transfer of venue. In other words, plaintiffs would be encouraged to forum shop and choose venues that are less willing to transfer cases out of their jurisdiction. While a valid concern, it is not one that should factor into a constitutional analysis of personal jurisdiction. Congress may feel compelled to alter the venue statutes. Even so, despite the discretionary nature of venue transfer, courts have not been afraid to reverse denials of transferring venue, even under the abuse of discretion standard.254
This Note began with an analogy to sports teams preferring to play in front of their home crowds. There is no question that teams have such a preference. But the defiance of this preference does not constitute a violation of rights. Surely the Los Angeles Lakers, because the team plays in the National Basketball Association, must play away from home across the nation, including in front of less-than-welcoming Boston fans when they face the Celtics.
When a corporation conducts business in a particular location, it avails itself of that location. Under the traditional corporate consent and estoppel model, the privilege of conducting business creates a reciprocal obligation on the corporation to subject itself to the jurisdiction of that location, irrespective of who sues it there.
While personal jurisdiction purports to assess whether a defendant should be forced to defend a lawsuit in a forum due to the defendant’s contacts with that forum, the doctrine has shifted to requiring the plaintiff to show a connection to the forum, even if the defendant has substantial contact with the forum. This Note has explained the history and development of personal jurisdiction doctrine and showed how the Court has narrowed where corporate defendants are “at home.” Consequently, the Court requires the plaintiff to comply with the nexus requirement when suing in locations besides the corporation’s “home.” In doing so, this Note revealed that the evaluation of personal jurisdiction doctrine is a diversion from the traditional corporate consent and estoppel model and is a result of the Court substituting its judgment for Congress’s regarding the need to curtail forum shopping. It offered a prediction of where the Court may be headed: toward an expansion of corporate personal jurisdiction—by ditching Daimler and nixing the nexus requirement.