Zippo-ing the Wrong Way: How the Internet Has Misdirected the Federal Courts in Their Personal Jurisdiction Analysis

26 Pages Posted: 25 Sep 2008 Last revised: 28 Jan 2014

Date Written: September 25, 2008


IN 1997, THE UNITED STATES District Court for the Western District of Pennsylvania decided whether Internet-based contacts alone are sufficient to establish personal jurisdiction over a defendant. In this unlikely watershed case, Zippo Manufacturing Co. v. Zippo Dot Com, Inc., the district court wrangled with the new concept of purposeful availment through electronic contact with a forum state. The court viewed Zippo and its antecedents as a new body of personal jurisdiction law: Internet-based personal jurisdiction. In Zippo, the district court created a new test, the Zippo sliding scale, to evaluate the purposeful availment issue when a defendant’s contacts are based on Internet activity. Many courts then followed Zippo’s impulse to categorize Internet- based contacts differently than other contacts and applied the sliding scale to a variety of cases possessing the common thread of Internet activity.

Zippo and its progeny question the extent the law should customize doctrine addressing the practical changes created by technological advances. Courts are now in a similar position to courts at the turn of the twentieth century, when the country struggled with the realities of industrialization and cross-country travel. In Pennoyer v. Neff 3 and later in International Shoe Co. v. Washington,4 courts mediated the tensions between national growth and the tradition of territoriality. Courts did this through tests based on a defendant’s contacts with the forum, rather than a defendant’s physical presence in the forum. Territoriality, or place, served as the foundation of twentieth-century personal jurisdiction jurisprudence and the use of a minimum contacts analysis formed the analytical framework.

Tensions exist between the role of contacts based on Internet activity and contacts based on physical location. The Zippo sliding scale was a federal district court’s response to the tension created by the perceived amelioration of place as a determinant of contacts and purposeful availment. The Zippo approach responded to a rising fear that if entities are able to contact citizens of the forum through the Internet alone, those contacts will fail the test of minimum contacts because Internet-based contacts can be disseminated so widely that purposeful availment with any particular forum is nonexistent.

This Article argues that the district court’s response in Zippo constituted a premature, non-functional, and destabilizing reaction to Internet-based contacts analysis. First, the Zippo sliding scale has destabilized the foundation of personal jurisdiction jurisprudence by directing courts to analyze the defendant’s contacts in reference to a linear scale. Second, this Article addresses how Zippo’s hasty construction creates a new need to define the established framework of contacts analysis based on the place theory directives of Pennoyer and International Shoe. Finally, this Article evaluates how place theory fits in the modern context through the hypothetical analysis of a case wherein a defendant’s only contacts with the forum are Internet based.

Suggested Citation

Dunham, Catherine Ross, Zippo-ing the Wrong Way: How the Internet Has Misdirected the Federal Courts in Their Personal Jurisdiction Analysis (September 25, 2008). Elon University Law Legal Studies Research Paper No. 2008-01, Available at SSRN: or

Catherine Ross Dunham (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States

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