The Single Contract as Minimum Contacts: Justice Brennan "Has it His Way

William & Mary Law Review, Sep 2017

By Pamela J. Stephens, Published on 10/01/86

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The Single Contract as Minimum Contacts: Justice Brennan "Has it His Way

The S ingle Contract as Minimum Contacts: Justice Brennan "Has it His Way " Pamela J. Stephens 0 0 Pamela J. Stephens, Th e Single Contract as Minimum Contacts: Justice Brennan "Has it His Way", 28 Wm. & Mary L. Rev. 89 (1986), https://scholarship.law.wm.edu/wmlr/vol28/iss1/3 - INTRODUCTION In the past ten years the Supreme Court has made major changes in its approach to personal jurisdiction." The Court has forged two independently developed lines of cases into one standard 2 that depends upon InternationalShoe Co. v. Washington.It has addressed personal jurisdiction concerns in the contexts of a single serious tort,4 a child custody dispute,5 personal injury liability insurance,6 and a first amendment challenge.7 Until 1985, however, the Court had failed, even when presented with the opportunity, to address personal jurisdiction limitations when a nonresident's contact with the forum state consists of a single contract rather than ongoing business activities.' Unaided by the Supreme Court, lower federal and state courts have grappled with this issue and have reached widely varying results, supported by widely varying assumptions about the Supreme Court's current posture.' Those results range from a willingness to assert jurisdiction based solely on the existence of a contract be* Associate Professor, Vermont Law School; B.A., 1977, Ohio State University; J.D., 1975, University of Cincinnati. 1. For a general discussion of the Supreme Court's changes, see Jay, "Minimum Contacts" as a Unified Theory of PersonalJurisdiction:A Reappraisal,59 N.C.L. REV. 429 (1981); Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L. REV. 33 (1978). 2. Shaffer v. Heitner, 433 U.S. 186 (1977). 3. 326 U.S. 310 (1945). 4. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). 5. Kulko v. Superior Court, 436 U.S. 84 (1978). 6. Rush v. Savchuk, 444 U.S. 320 (1980). 7. Keeton y. Hustler Magazine, Inc., 465 U.S. 770 (1984); Calder v. Jones, 465 U.S. 783 (1984). 8. See Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., 445 U.S. 907, 909-10 (1980) (White, J., dissenting from denial of certiorari). 9. See id. (Justice White cited several examples); Note, Long-Arm Jurisdictionin Commercial Litigation: When is a Contract a Contact?, 61 B.U.L. REv. 375 (1981). tween a resident and nonresident'0 to examinations not only of the contract itself, but also its surrounding circumstances. Courts have considered the relative bargaining power of the parties 1 and the nonresident's status as either the buyer or seller 2 or as the "passive" or "aggressive" party to the contract.' s The assumptions range from an emphasis on sovereignty concerns and the purposefulness of the defendant's contacts with the forum state 4 to emphasis on reasonableness, fairness, inconvenience to the defendant, and the forum's interest in the litigation.' 5 In Burger King Corporationv. Rudzewicz, s the Supreme Court finally focused directly on the single contract issue and purported to establish a general standard for the assertion of personal jurisdiction in such cases.' 7 10. See, e.g., Mouzavires v. Baxter, 434 A.2d 988 (D.C. 1981), cert. denied, 455 U.S. 1006 (1982). 11. See, e.g., Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079 (1st Cir. 1973). 12. Leoni v. Wells, 264 N.W.2d 646 (Minn. 1978). The court said, "However, our cases have delineated a sharp distinction between nonresident sellers and nonresident buyers. With respect to the latter, an isolated purchase of goods from a Minnesota seller will not by itself subject the buyer to the jurisdiction of Minnesota courts." Id. at 647. 16. 105 S. Ct. 2174 (1985). 17. Id. at 2185. "At the outset, we note a continued division among lower courts respecting whether and to what extent a contract can constitute a 'contact' for purposes of due process analysis." Id. 1986] This Article reviews the Supreme Court's post-International Shoe decisions to determine what, if any, guidelines the Court had given for personal jurisdiction in single contract cases prior to the Burger King case. It also examines lower federal court and state court decisions to establish the range of factual situations presented and the ways courts have dealt with them. The Article highlights the distinction drawn in the cases between specific and general jurisdiction. It also considers in detail the Supreme Court's decision in Burger King and its application to future single contract cases. Lastly, the Article focuses on how Burger King affects the law of personal jurisdiction as a whole, suggesting that, perhaps in spite of itself, the Court is moving away from sovereignty as the basis for due process concerns in the area and toward a multifactored analysis. Such an analysis considers not only the nonresident's right to a fair and convenient forum, but also the plaintiff's interest in bringing the case in a particular forum and the forum's interest in retaining jurisdiction. The Article also addresses implica (...truncated)


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Pamela J. Stephens. The Single Contract as Minimum Contacts: Justice Brennan "Has it His Way, William & Mary Law Review, 2018, Volume 28, Issue 1,