Their Beef Is with Burger King

Abstract

International Shoe Co. v. Washington was decided seventy-five years ago, and there are some rumblings that it is showing its age. On the Supreme Court, Justice Gorsuch has been the most open skeptic, wondering whether “International Shoe just doesn’t work quite as well as it once did,” though Justice Thomas and Justice Alito have shared similar concerns. While other Justices seem less open to jettisoning International Shoe itself, they have nonetheless worried about its limits, raising questions about online commerce, coffee farmers in Kenya, and duck decoy makers in Maine.

These complaints are misdirected. The Justices’ criticisms (both explicit and implicit) are not really about International Shoe—they are about the doctrinal scaffolding that the Supreme Court superimposed on top of International Shoe in the mid-1980s. In cases like Burger King v. Rudzewicz, Helicopteros Nacionales de Colombia, S. A. v. Hall, and Asahi Metal Industries Co. v. Superior Court, the Supreme Court bifurcated personal jurisdiction analysis into general and specific jurisdiction and articulated a three-part test for specific jurisdiction that we still teach 1Ls today. This festschrift essay draws on Professor Linda Silberman’s prescient contemporaneous commentary about these doctrinal developments to remind readers of the choices made and paths not taken. If Burger King’s effort to rulify personal jurisdiction is proving unworkable, that is not a reason to abandon International Shoe. Instead the Court could scrape off some of the barnacles of interpretation that have accumulated on top of International Shoe, a process the Court may already have started. Granted, even a scrubbed-down version of International Shoe’s framework may not be enough to placate those Justices (like Gorsuch and Thomas) who are seeking an originalist understanding of the Due Process Clause. But better and more stable progress will be made if we can at least diagnose the source of current complaints correctly.

Keywords: personal jurisdiction, Supreme Court, International Shoe