The Inextricable Merits Problem in Personal Jurisdiction

Abstract

In 1984, Hollywood star Shirley Jones convinced the Supreme Court to adopt an effects-based test for personal jurisdiction when she brought suit in California against a Florida defendant for defaming her reputation. After adopting the test in Calder v. Jones, the Court never returned to the issue, and in fact avoided personal jurisdiction questions entirely for more than two decades. This past spring, however, the Supreme Court not only revisited the personal jurisdiction doctrine but also signaled an intention to return to personal jurisdiction issues in the near future, with two justices calling specifically for development of the doctrine in cases involving modern “commerce and communication.” When the Court chooses to accept such a case, it will likely be to resolve an emerging issue that has divided lower courts - the proper scope of the Calder effects test. This Article seeks to limit the reach of the effects test. It argues that many of the conflicting cases in this area can be reconciled only by acknowledging courts’ implicit assumptions about the underlying merits of the case. The Article then demonstrates that once these assumptions are made explicit, the merits of the cases are so inextricably intertwined with the jurisdictional issues that courts cannot resolve the jurisdictional question without fully trying the case on the merits - an action that would require the defendant to forfeit the very constitutional interests that the personal jurisdiction doctrine was developed to protect. Finally, the Article examines how the development of the Internet destroyed previous assumptions about the litigation resources of likely defendants. It concludes that narrowing the effects-test doctrine would minimize the cost of forum selection for both plaintiff and defendant, would promote online commercial development, and would better protect a robust speech environment.

Keywords: Calder v Jones, personal jurisdiction, commerce and communication, effects test doctrine, forum selection, free speech, stream of commerce, inextricable merits, jurisdictional proof, due process, internet activity

JEL Classification: K30, K39