Since the Supreme Court's decision in Pennoyer v. Neff, a state's assertion of personal jurisdiction has always been subject to the restraints of the Fourteenth Amendment's Due Process Clause. Over the years, the content of the due process limitation has varied widely. Even after the Court's adoption of the "minimum contacts" standard in International Shoe Co. v. Washington, the standard has varied, depending upon the definition given to the phrase, "minimum contacts."

      The modern doctrinal standard, developed most fully by the Court in World-Wide Volkswagen Corp. v. Woodson in 1980, is the so-called "purposeful availment" test: In order for the minimum contacts test to be satisfied, the defendant must have "purposefully availed" itself of the benefits and privileges of the forum.

      The existence of the Internet appears to present a significant problem for application of the purposeful availment standard, because when something is placed on a web page it automatically becomes available everywhere. Thus, it is not immediately clear how such activity is appropriately characterized from a purposeful availment perspective. If the mere act of placing something on a web page is automatically deemed purposeful availment, then Internet users are automatically subject to jurisdiction everywhere, regardless of what actual contact they have had with the forum-thereby effectively rendering the concept of "purposeful availment" meaningless. On the other hand, were the placing of something on the Internet not deemed purposeful availment, a state might well be denied the reasonable opportunity to provide a convenient forum for its citizens who have been harmed as a result.

      While there are several ways that courts could conceivably seek some form of intermediate reconciliation of this seeming dilemma, it is my position that none of these provides a completely satisfactory solution, either because of practical considerations, conceptual flaws, or a combination of both. In at least a certain category of cases, then, attempting to apply purposeful availment to the Internet will amount to inserting a square peg in a round whole.

      On one level, this conclusion leads me to a rejection of the purposeful availment test in Internet cases, in favor of a test grounded in a balance of fairness considerations to the defendant against a state's legitimate interest in providing a forum. However, it would be practically difficult, if not conceptually awkward, to confine rejection of the purposeful availment test to Internet cases. Thus, I believe that the Internet cases merely underscore the fundamentally flawed nature of the purposeful availment test as a measure of due process. I therefore conclude that we should use the Internet example as a spearhead for rejecting the purposeful availment test in all jurisdictional contexts.

      In defining limitations to be imposed on states, it is important to recall that the only basis for the United States Supreme Court's ability to restrict state power is the finding of a constitutional violation. While due process may properly confine a state's assertion of jurisdiction, just as it restricts any other state action, it is important to keep in mind the narrow basis for restriction. In shaping the purposeful availment test, the Court viewed the due process clause as an instrument of interstate federalism-a complete constitutional non-sequitur. Moreover, it is quite conceivable that in numerous cases, a state may subject an out-of-state defendant to suit without violating basic notions of procedural fairness, even when the defendant has not purposefully availed itself of the forum's benefits and privileges. Finally, use of the purposeful availment test severely restricts a state's power to protect its citizens. Thus, wholly apart from its application to the Internet, the purposeful availment test is both conceptually and practically flawed.

1. Placing Something on the Internet as Automatic Purposeful Availment

2. Analogy to Nationwide Mailings

3. Presumptive Rejection of Purposeful Availment

4. "Internet Plus": Use of the Internet as One Factor of a Multi-Factor Analysis

      Where web page owners cause harm through breach of contract or products liability as a result of Internet purchases, in many cases it would arguaby not be difficult-at least comparatively speaking--to apply a purposeful availment standard in order to determine the constitutionality of jurisdiction. Much more problematic, however, would be use of that standard to test the constitutionality of jurisdiction in other contexts, such as intentional torts. In these cases, a defendant could inflict significant harm in numerous forums with which it had no meaningful contact, even though it had not purposefully availed itself in that forum-at least in any meaningful sense of the phrase.

      To a certain extent, of course, a similar problem arises in non-Internet cases. However, use of the Internet seriously compounds the problem, because of the unique ability of a web page owner to cause significant harm simultaneously in every state of the union.

       In Calder v. Jones, the Court implied that in intentional tort cases, jurisdiction may be found even absent purposeful availment, on a basis of a "focal point" test, i.e., the forum that had been targeted by the defendant and that effectively served as the center of gravity of the litigation. Arguably, use of the Calder standard in internet cases could expand the scope of a state's jurisdictional authority even to cases where the defendant had not purposefully availed himself of the forum's benefits and privileges. However, use of the Calder standard is not free from difficulty:

1. At no point did the Court ever explain why such cases deserve unique jurisdictional treatment; indeed, in another portion of the same decision, the Court emphasized that jurisdictional rules were neutral as to the substantive issues in the case-a point the Court appeared to ignore in this portion of the decision.

2. The standard effectively resolves the merits of the case before they have ever been adjudicated, since it determines jurisdiction on the basis of allegations of tortuous behavior aimed at the forum that go to the substance and have never been litigated.

3. In an earlier decision, the Court had expressly rejected use of a focal point analysis, yet failed to acknowledge that fact in Calder.

         More importantly, the requirement that the forum actually be the focal point of the case and that the defendant have targeted the forum may not prove all that helpful in internet cases, since the mere fact that the defendant knows that the plaintiff resides in the forum will generally not be sufficient to satisfy Calder standards, at least in internet cases. See Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002).

         We are, then, left with the same dilemma: Use of current jurisdictional standards unduly interferes with a state's power to protect its citizens by providing them with a convenient forum to sue, yet construing those standards to be satisfied by the placing of information on a web page would extend a state's jurisdiction indefinitely. Thus, the Internet has underscored the severe problems to which use of the traditional purposeful availment test gives rise in the modern technological age.

     

   V.   PROPOSING A NEW STANDARD

         What is called for, in light of these insights, is an entirely different constitutional standard for measuring the legitimacy of a state's assertion of personal jurisdiction in internet cases. I propose that a fairness/convenience standard be adopted: A state's assertion of jurisdiction will be deemed unconstitutional if-and only if-such meaningful inconvenience would result to the out of state defendant in presenting her defense that the requirements of procedural due process would be violated. In making this decision, a state's legitimate counter interest in protecting its citizens would be considered, as part of the traditional Mathews v. Eldridge balancing test for procedural due process.

         While as a practical matter at the very least this test must be applied in Internet jurisdiction cases, on a purely conceptual level the rationale for using this test goes far beyond the Internet context. Indeed, it logically applies to all assertions of jurisdiction, because the only grounds for invalidating a state's choice to assert jurisdiction is the violation of the United States Constitution, and the only constitutional provision that meaningfully restricts such assertions is the Fourteenth Amendment's due process clause.