General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale Test Play in the Analysis?
General Jurisdiction and Internet Contacts: What Role, if any, Should the Zippo Sliding Scale Test Play in the Analysis?
Eric C. Hawkins 0
Recommended Citation
0 Eric C. Hawkins, General Jurisdiction and Internet Contacts: What Role , if any, Should the Zippo Sliding
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Cover Page Footnote
J.D. Candidate, 2007, Fordham University School of Law I would like to thank Professor Marc Arkin for her
valuable help with this Note.
This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol74/iss4/29
GENERAL JURISDICTION AND INTERNET
CONTACTS: WHAT ROLE, IF ANY, SHOULD
ZIPPO SLIDING SCALE TEST PLAY IN THE
ANALYSIS?
THE
Since the mid-1990s, courts have struggled with the issue of whether to
assert personal jurisdiction over an out of state defendant who has
established contacts with the forum state via the Internet. As courts
searched for a way to apply the conventional "minimum contacts" rule to
Internet activity, the "sliding scale" test of Zippo Manufacturing Co. v.
Zippo Dot Corn, Inc. 1 emerged as the most popular framework for
analyzing Internet contacts. But since Zippo was decided in 1997,
numerous flaws have emerged in the sliding scale test, and critics have
questioned the test's continuing usefulness. 2 Courts disagree as to whether
Zippo is the proper standard for general jurisdiction cases. 3 This Note
focuses on that question.
Part I of this Note provides background material on the concept of
personal jurisdiction and the "minimum contacts" test used to determine
when a court has jurisdiction over an out of state defendant. Part I also
examines the emergence of the Zippo test and some reactions to it. Part II
explores the split among courts over what role, if any, Zippo should play in
a general jurisdiction analysis. Part III argues that the Zippo test is
inconsistent with the Supreme Court's general jurisdiction doctrine and is
under-protective of due process rights in the general jurisdiction context.
Therefore, this Note proposes that courts abandon Zippo in general
jurisdiction cases and refocus the analysis on traditional minimum contacts
doctrine.
* J.D. Candidate, 2007, Fordham University School of Law. I would like to thank Professor
Marc Arkin for her valuable help with this Note.
1. 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (introducing a "sliding scale test" for
determining whether to assert personal jurisdiction over an out of state defendant in the
Internet context).
2. See infra Part I.B.3.
3. See infra Part II.
I. PERSONAL JURISDICTION BACKGROUND
Part I of this Note surveys fundamental personal jurisdiction concepts
and their application in the Internet age. First, it covers the evolution of the
U.S. Supreme Court's minimum contacts framework, from the oWriagsihninogftothne4
minimum contacts concept in International Shoe Co. v.
through the Court's most recent major refinement of it in Asahi Metal
Industry Co. v. Superior Court of California5. Next, this part examines the
Zippo sliding scale test, which attempts to adapt minimum contacts analysis
to Internet activities. 6 Part I concludes by presenting some reactions to
Zippo and post-Zippo trends in Internet-based personal jurisdiction.
A. Due Processand the Evolution ofMinimum Contacts
The Due Process Clause of the Fourteenth Amendment limits the power
of a state court to issue binding judgments on out of state defendants who
do not have sufficient connections with that state. 7 This section of the Note
examines the ways in which the Supreme Court has defined that limitation.
1. The Minimum Contacts Rule
The Supreme Court addressed the constitutional limitations on the
exercise of personal jurisdiction over an out of state defendant in
InternationalShoe.8 In InternationalShoe, the state of Washington sought
personal jurisdiction over the International Shoe Company, a Delaware
corporation that had its principal place of business in St. Louis, Missouri,
but sold its products in Washington. 9 The state was attempting to recover
from International Shoe unpaid contributions to the state unemployment
fund.10 The company argued that it did not have to contribute because it
was not an employer within the meaning of the relevant statute. 11
International Shoe did not have an office or inventory in Washington.' 2
Instead, the company employed between eleven and thirteen salesmen,
working on commission, who displayed samples there.13
When a customer
made an order, the salesman would relay it to International Shoe's office in
St. Louis, and the company would ship the merchandise to the customer. 14
In deciding the case, the InternationalShoe Court formally articulated
the due process protection to which an out of state defendant is entitled: A
state
may
only exercise jurisdiction
minimum contacts" with the state. 15
over a defendant that has "certain
This is the "minimum contacts" rule.
The rule is based on the premise that enjoying the benefits of acting within
a state gives rise to certain respon (...truncated)