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Personal Jurisdiction and the 'Interwebs'

62 Pages Posted: 13 Sep 2014 Last revised: 14 Oct 2015

Alan M. Trammell

University of Arkansas - School of Law

Derek E. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: September 10, 2014

Abstract

For nearly twenty years, lower courts and scholars have struggled to figure out how personal jurisdiction doctrine should apply in the Internet age. When does virtual conduct make someone amenable to jurisdiction in any particular forum? The classic but largely discredited response by courts has been to give primary consideration to a commercial Web site’s interactivity. That approach distorts the current doctrine and is divorced from coherent jurisdictional principles. Moreover, scholars have not yielded satisfying answers. They typically have argued either that the Internet is thoroughly exceptional and requires its own rules, or that it is largely unexceptional and can be subject to current doctrinal tests.

The difficult relationship between the Internet and modern personal jurisdiction doctrine is a symptom of a much larger problem. We argue that the Supreme Court’s current approach has bifurcated physical and intangible harm. Viewed through that lens, the overarching problem comes into focus because rules that sensibly govern the physical world apply awkwardly — sometimes incoherently — to intangible harm. Accordingly, we propose a return to personal jurisdiction’s first principles, particularly a concern for fairness and predictability. We argue that courts should dispense with the fiction that purely virtual conduct creates any meaningful contact with a particular forum. The narrow approach that we advocate likely will restrict the number of places where a plaintiff can sue for intangible harm, but through three test cases we demonstrate why such a rule will enhance fairness and predictability while also ensuring sufficient access to justice.

Keywords: Internet, personal jurisdiction, Calder, cyberlaw, forum, Zippo, minimum contacts, trademark, hacking, network attack, litigation, federalism, sovereignty, Nicastro, e-commerce, specific jurisdiction, general jurisdiction

Suggested Citation

Trammell, Alan M. and Bambauer, Derek E., Personal Jurisdiction and the 'Interwebs' (September 10, 2014). 100 Cornell Law Review (2015 Forthcoming); Arizona Legal Studies Discussion Paper No. 14-26; Columbia Public Law Research Paper No. 14-419. Available at SSRN: https://ssrn.com/abstract=2494969

Alan M. Trammell

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States
479-575-2655 (Phone)

HOME PAGE: https://law.uark.edu/directory/directory-profile.php?Uid=amtramme

Derek E. Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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