Pennoyer v.

Neff (1878) and the Law of Personal Jurisdiction through

International Shoe (1945)

The Problem of Personal Jurisdiction. Consider the following scenario: You reside in
New Jersey. While you are walking your dog near your home, a bicyclist carelessly rides into
you, injuring you. The bicyclist apologizes and says he is temporarily in New Jersey on
vacation, but that his permanent residence is in California. The two of you exchange business
cards. Your injuries are not life-threatening, but you do end up requiring medical care costing
you $5000, and the two weeks of work you are required to miss cost you $3000 in lost wages.
You then consult a lawyer, who tells you that, based on the facts you’ve reported to her, you
probably have a valid claim against the bicyclist for negligence. In the meantime, the bicyclist
has returned to California. Can you now sue the bicyclist for negligence in a court in New
Jersey, where you live? In other words, do the courts of New Jersey have the power to hale the
bicyclist before them and render a valid judgment against him? Or will you have to file a lawsuit
in the distant state of California in order to obtain a valid judgment against the bicyclist?

Today, the answers to these questions are clear: The courts of New Jersey have
jurisdiction over the bicyclist with respect to your claim for negligence. So long as the bicyclist
is given proper notice of the lawsuit by being served with the complaint (even in California) in
accordance with the New Jersey rules for service of process, there is no reason why you cannot
sue him in the courts of New Jersey. There is no need to initiate proceedings in the courts of
California or some other state, simply because the bicyclist is not currently present in New
Jersey.

One hundred and twenty-five years ago, however, the situation was far different: The
courts of New Jersey would have had no constitutional authority to render a judgment against the
bicyclist, or to require him to appear before them, if he were not present in the state of New
Jersey at the time you filed the lawsuit (or, as explained below, if he did not have property in
New Jersey that could be seized as a way of initiating the lawsuit). Needless to say, that reality
would be most inconvenient for you, even unfair. The way in which the law of personal
jurisdiction changed from this older, restrictive rule to the current, more flexible one constitutes
one of the most important developments in the history of American law during the last century
and a half.

The older rule, which barred the assertion of personal jurisdiction over a defendant not
present within the borders of the state in which the court sits, was based on the idea that there are
strict territorial limits on the power of states; state courts may not “reach out” beyond the state’s
borders to assert power over persons residing elsewhere. Today, the constitutional standard for
the assertion of personal jurisdiction is less rigid and more practical; it recognizes that sometimes
a person’s earlier presence in the forum, or his connections with the forum that do not amount to

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actual presence there, can justify the assertion there of personal jurisdiction over him now.
Although the older rule categorically prohibiting courts from asserting jurisdiction over persons
not present within their territorial boundaries has long since perished, it is important to know
something about the reasoning that underlay that rule, because in important ways it continues to
inform the present-day law of personal jurisdiction. The purposes of this handout are to
summarize and explain the Supreme Court’s decision in Pennoyer v. Neff (1878), the decision
that established the older rule barring state courts from asserting personal jurisdiction over
persons not present within the state; to explain why the Pennoyer approach gave way to a
different approach by the mid-twentieth century; and to set the stage for the modern personal
jurisdiction cases that we will read. This will enable us to focus on the modern law of personal
jurisdiction while also having an understanding of what it replaced.

Historical Background to Pennoyer v. Neff. Most of us sense intuitively (1) that a court
should not be able to assert its authority over a defendant that has never had any connection with
the state in which the court sits, and (2) that a court should not be able to enter a valid judgment
against a defendant when no effort has been made even to notify the defendant that a lawsuit has
been filed against him. These two principles seem to be a matter of simple fairness, and today
they are enshrined in our constitutional law. But it is surprising how long it took for those
principles to become part of our constitutional law.

Prior to ratification of the Fourteenth Amendment in 1868, there was no federal

constitutional provision that constrained the authority of state courts to assume jurisdiction over
defendants in civil lawsuits. Of course, most judges and lawyers believed that there were general
limits, derived from conceptions of the sovereignty of states and traditional common-law judicial
process, on the reach of a court’s authority. The typical process for a civil lawsuit in state court
was for the plaintiff to file his complaint with the court, and for the court to issue a writ to be
served by the local sheriff on the defendant, ordering him to appear in court at an appointed time.
This process was predicated on the assumption that the defendant would be found within the
state; all agreed that the court’s writ could not run into another state, and that a local sheriff had
no legal power to compel a defendant residing in another state to do anything. Over time, most
states modernized their rules for service of process somewhat by providing for personal service
of the complaint upon the defendant, enabling plaintiffs to bypass the cumbersome process of
having a local sheriff serve the court’s writ on the defendant. It was generally assumed,
however, that even with this simplified process, a state court had no authority to order a
defendant residing outside the state to appear in its courts. (Note that when we use the word
“reside,” we mean “is present within the state at the time the lawsuit is commenced.” It does not
mean that the defendant has a home or house in the state.)

Today, the question of a court’s authority to assert jurisdiction over a defendant is

separate from the question of whether the defendant has received adequate notice of the

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proceeding; both requirements must be independently satisfied. In the nineteenth century,
however, since service of the complaint or of the sheriff’s writ was the very means by which a
court obtained jurisdiction over the defendant in a civil action, the law governing civil procedure
did not distinguish sharply between the question of personal jurisdiction and the question of
adequate notice to the defendant. The court obtained lawful authority over the defendant if and
only if service of the complaint on the defendant had been effected by the traditional means of
having the sheriff serve the writ, or by personal service. Thus, valid establishment of the court’s
jurisdiction over the defendant and valid notification of the defendant were largely one and the
same.

The Problem of the Default Judgment. But what if the defendant could not be found
within the state, even though he was present there somewhere? Everyone agreed that it was
unacceptably unfair for a judgment to be entered against a defendant who had never been
notified of the proceeding notwithstanding the fact that he could easily have been served within
the state. At the same time, though, it was equally unfair to allow a wrongdoer – often, an
absconding debtor – to deprive the plaintiff of a remedy simply by hiding out or making himself
unamenable to service of process. Nineteenth-century American law never fully resolved this
dilemma. Necessarily, states devised a variety of expedients to enable courts to issue a default
judgment (that is, a judgment for the plaintiff in a case where the defendant never formally
appears in the case) under certain circumstances. Obviously, a defendant who receives actual
notice of the pendency of a lawsuit against him, by being served with the complaint, but who
nevertheless fails to appear in court, has no cause of complaint if a default judgment is entered
against him. But it is a different matter when the defendant never received notice, especially if
his inaccessibility was innocent and not based on his deliberate effort to avoid service of process.
The “default judgment” solution was purchased at the cost of relaxing the usual practice of
requiring personal service upon defendants, for example by allowing a case to proceed whenever
its pendency was announced for a specified period of time in a local newspaper. This type of
“constructive service” was convenient for plaintiffs who might otherwise have been denied a
remedy for a valid claim, but it ran the substantial risk of injustice to defendants who, simply
because they could not be found within the state for entirely innocent reasons, were unamenable
to service of process.

The Case of Pennoyer v. Neff. Such was the state of affairs when the U.S. Supreme
Court decided Pennoyer v. Neff (1878), its first major ruling on the constitutional requirements
for the assertion of valid personal jurisdiction by state courts, and still one of its most famous
decisions in the area of civil procedure. Pennoyer is a difficult case, and there are many parts to
the court’s decision. But the most important thing Pennoyer did was to provide a constitutional
basis for the traditional understanding that state courts could not extend their power out of state
by asserting jurisdiction over a defendant not residing within the state at the time the lawsuit was
commenced. As we have seen, this had been the approach previously taken by American law,
but that understanding had been based on general notions about power and the sovereignty of the

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states. Prior to 1868 (the year the Fourteenth Amendment was ratified), there was no provision
on the U.S. Constitution that clearly imposed this limitation on state courts. With ratification of
the Fourteenth Amendment, however, the Court, speaking through Justice Stephen J. Field, held
that this limitation was now a constitutional requirement.

The facts of Pennoyer were colorful. John Mitchell, himself something of a rapscallion,
provided legal services for Marcus Neff, a resident of Oregon. Neff allegedly failed to pay
Mitchell what he owed him for those legal services, so Mitchell brought a lawsuit against Neff in
Oregon state court for the amount due. Neff, however, was out of the state at the time the
lawsuit was commenced; even if he could have been located, the prevailing understanding barred
Oregon process from running out of state. (Neff, it turns out, did own some land within the state
of Oregon; we will see the significance of this fact in a moment.) The law governing Oregon
state court procedure, however, provided that the state court could validly adjudicate Mitchell’s
claim if notice of the pending lawsuit were published for six weeks in a local newspaper. (This
was known as “constructive” service of process.) Mitchell arranged for such publication in a
local Oregon newspaper. When, predictably, Neff never responded or appeared in the action –
the likelihood that he would see the newspaper notice of the litigation was precisely nil – the
court entered default judgment in favor of Mitchell.

A default judgment for damages is only useful for a plaintiff, however, if he can turn it
into money. In most cases a losing defendant will simply pay the plaintiff the amount awarded
by the court, but obviously that would not occur in the case of a default judgment, especially
when the defendant was not even aware that a judgment had been entered against him. Oregon
law provided for a process in which property of the defendant could be seized by the sheriff; that
property could then be sold at auction, or, perhaps, by the victorious defendant, and the proceeds
be used to satisfy the amount of the judgment that had been entered in the plaintiff’s favor.
Mitchell, who after all was himself an experienced lawyer, initiated this procedure. As a result,
Neff’s land in Oregon was “seized” – not literally, of course, but the sheriff issued papers
providing for the sale of the land at auction. It was Mitchell, in fact, who bought the land at the
auction; he subsequently sold it to Pennoyer, a man who years later would become Governor of
Oregon. All this took place without Neff having known of it.

Eventually, Neff returned to Oregon and discovered that his land had been sold and that
Pennoyer was now in possession of it. Neff subsequently brought an action against Pennoyer in
federal court, arguing that he, Neff, was the true owner of the land. Pennoyer defended on the
ground that the sale at auction of Neff’s land, in order to enforce the default judgment that had
been entered against Neff in the prior lawsuit, conclusively established that Neff no longer had
rights in the land and that Pennoyer’s subsequent purchase of it made him the true owner. Neff
responded that the default judgment in the prior lawsuit lacked validity, because that lawsuit was
initiated while he was outside the state and he had never been served or notified about it. The
Oregon courts ruled in favor of Neff, and the case was appealed to the U.S. Supreme Court. This
resulted in the epochal decision we know as Pennoyer v. Neff.
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 The ultimate question in Pennoyer v. Neff was whether the Oregon court in the first
lawsuit – Mitchell v. Neff – had valid personal jurisdiction over Neff, without which any
judgment against Neff would be void. But the procedural setting in which the question came
before the Supreme Court was a bit complex, and we should take a moment to understand some
of the other issues lurking in the case. First, the question of the validity of personal jurisdiction
in the first lawsuit was only taken up in the course of the second lawsuit; since Neff had never
appeared in the first case, which resulted in a default judgment against him, the issue of personal
jurisdiction over him was never explicitly raised and determined in that case. So, in the second
lawsuit, Pennoyer v. Neff, Neff raised the issue of personal jurisdiction collaterally – that is, in a
second proceeding looking back retrospectively at the first proceeding. Normally, as you will
see when studying the topic of Respect for Judgments, an issue that has been determined
adversely to a party in one case cannot be relitigated by him as a party in a second case. That
principle is known as Issue Preclusion or Collateral Estoppel. However, there is an exception:
the issue of personal jurisdiction in the first case. Since, in the case of a default judgment, the
question of personal jurisdiction was never truly litigated and determined in the first case, it is
permissible for a party to raise, in the context of the second case (which will usually be an action
to enforce the judgment in the first case), the question of whether personal jurisdiction in the first
case was valid. That is what Neff did when he sued Pennoyer for possession of the Oregon
property; in response to Pennoyer’s argument that the sale of Neff’s property pursuant to the first
case conclusively terminated Neff’s rights in the property, Neff argued that the results of the first
case were null and void because the Oregon court had lacked personal jurisdiction over him in
that case.

Second, most people reading the facts of the lawsuit in Mitchell v. Neff observe that the
method used to “serve” Neff with the complaint in that case – publishing a notice of the pending
litigation in an Oregon newspaper while Neff was out of the state – seems a woefully inadequate
means of giving Neff notice of the lawsuit, and that it would be grossly unfair to permit the
litigation to go forward on that basis. Undoubtedly, that’s what a court today would conclude.
However, the Supreme Court in Pennoyer said little about the question of what constitutes
adequate notice to a defendant concerning the pendency of a lawsuit against him. The Court was
almost wholly focused on determining the constitutional standards for when a state court may
exercise power over a defendant – i.e. personal jurisdiction. Today, we think of personal
jurisdiction and adequate notice as independent questions, both of which must be satisfied in
order for a court to reach a valid judgment; but the Court in Pennoyer did not. Let us put aside
the issue of notice for the time being and focus on what the Court in Pennoyer said about
personal jurisdiction.

Pennoyer held that, under the Fourteenth Amendment, what we call a judgment in
personam – the garden-variety judgment against a defendant in a case of breach of contract,
personal injury, and so on – can only be validly entered by a state court against a defendant if he
is present (“resident”) within the state at the time the lawsuit is commenced. In addition, if the

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defendant has property within the state, the court can validly enter a judgment against the
defendant notwithstanding the defendant’s absence from the state – but only up to the value of
the property, and only if the property is legally “seized” and brought before the court at the time
the lawsuit is filed. This second, less common, procedure is called in rem jurisdiction, because
the defendant is not personally liable for the full value of the plaintiff’s claim, but only up to the
value of the thing (“res” = “thing” or “property”) that was seized as a means of initiating the
lawsuit. This in rem procedure, which is more commonly known today as “attachment,” had
been devised by courts largely to deal with defendants who evaded service of process (whether
by leaving the state or simply hiding within the state) but who had property within the state.

Under Pennoyer, then, constitutionally valid personal jurisdiction must be based on one
of these two situations: (1) presence of the defendant within the state at the time the lawsuit is
commenced, or (2) presence of the defendant’s property within the state at the time the lawsuit is
commenced, plus actual legal seizure or attachment of the property at the time the litigation is
commenced. The Court in Pennoyer said one other thing as well: Attachment of the property in
this second, in rem procedure was, in itself, constitutionally sufficient notice to the defendant.
Nothing more was necessary. The Court reasoned that, even when outside the state, a person
will be attentive to her affairs within the state, and we can assume that legal seizure of her
property will come to her attention without any special effort to notify her. This sounds dubious
to us, but that’s what Justice Field said in Pennoyer. As to the garden-variety in personam
procedure, however, the Court said nothing about what kind of notice might be required. The
Court simply assumed that, since the defendant’s presence within the state was a requirement for
personal jurisdiction, establishment of jurisdiction would be effectuated in the normal, time-
honored fashion – personal service upon the defendant – and the problem of notice would simply
not arise. This was a strange omission by the Court, because it disregarded the problem of the
default judgment in which the defendant, while confessedly within the state, could not be found.
But that’s what the Court said in Pennoyer.

It is easy to see that, under the constitutional standards established for personal
jurisdiction in Pennoyer, the Oregon court lacked personal jurisdiction over Neff in the first
lawsuit. Neff was outside the state at the time the lawsuit was brought, so the court had no in
personam jurisdiction over Neff. Neff had property within Oregon, but Mitchell had made no
effort to have that property seized until after the default judgment had been entered. Since the
property was not seized at the outset of the litigation, there was no basis for the assertion of in
rem jurisdiction with respect to Neff’s property. The Court therefore held for Neff in Pennoyer:
Because personal jurisdiction had been lacking in Mitchell v. Neff, Pennoyer’s effort in the
second case to use the results of that litigation to establish his title to the Oregon property was
invalid. Neff had been successful in collaterally attacking the issue of personal jurisdiction in
the first case.

The Court’s language and reasoning in Pennoyer were, to some extent, products of their
time. Justice Field’s approach was rigidly territorial: If you (or your property) were in the state
6
at the time of the lawsuit, the court could validly assert jurisdiction over you; otherwise, it
couldn’t. Field’s opinion bristled with the language of state sovereignty. Efforts by state courts
to extend their authority by asserting power of defendants beyond their borders were, he said,
“mere abuse,” an insult to the sovereign prerogatives of other states. His assumption seemed to
be that one and only one state had constitutional authority at a given time to hale a defendant
before its courts – the state in which the defendant was present. No other state could interpose
its judicial authority in such a situation. Fairness to defendants seemed to have little to do with
the analysis in Pennoyer; judicial assertions of authority over out-of-state defendants were per se
invalid even if the defendant would suffer little or no inconvenience by being compelled to
appear, and, for all the Pennoyer opinion suggested, assertions of authority over in-state
defendants might be valid even if the defendant never learned of it. The emphasis on state
sovereignty and rigid territorial boundaries in Pennoyer seems odd in light of the fact that the
Fourteenth Amendment was the basis for the decision; the Fourteenth Amendment is usually
regarded as a protection for the rights of individuals, not for the sovereign prerogatives of states
vis-à-vis states.

Consent as an Alternative Basis for Personal Jurisdiction. We should note that there is,
and always has been, an alternative basis for personal jurisdiction: the consent of the defendant.
Thus, even under Pennoyer, a defendant who is out of state when the lawsuit is commenced can,
if she wishes, choose to appear in the action and litigate it, and personal jurisdiction will thereby
have been validly established. Her appearance serves to waive any objection to personal
jurisdiction she might otherwise have. What it means to “appear” can be a more complicated
question than it might seem at first glance. As you will learn, all states provide for some process
by which a defendant can “appear” in the action for the sole purpose of contesting the court’s
personal jurisdiction over her, without thereby waiving that objection to personal jurisdiction,
which would be a logical absurdity. In any case, however, it is clear that if a defendant appears
in the action to the extent of litigating the merits of the case, she has thereby consented to
personal jurisdiction, whether she intended to or not. Another way of consenting to personal
jurisdiction and waiving any objection to it is by agreeing in advance to do so. Business
contracts frequently include a provision requiring that any litigation over the contract’s terms be
brought in a particular court or in a particular state; agreeing to this provision means that you
have consented in advance to personal jurisdiction even in a court where you might otherwise
have a meritorious objection to personal jurisdiction. The fact that a party can thus consent to
personal jurisdiction is another principle that sits awkwardly with the Court’s emphasis in
Pennoyer on the sovereign power of states; it is difficult to see why a private party should be
able to “waive” an objection that is based on the sovereign prerogatives held by the state. That
tension – between the sovereignty of states and the due process rights of individuals as the
fundamental basis for constitutional limitations on the power of state courts to assert jurisdiction
over defendants – has persisted in the law of personal jurisdiction even in the years since
Pennoyer was replaced by a different conception of the constitutional limits on personal
jurisdiction.

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 The Unworkability of the Pennoyer Test. Pennoyer, then, established a constitutional test
for the validity of assertions of personal jurisdiction by state courts that was emphatically
territorial in its focus. In this respect, the decision was consistent with developments in other
areas of late nineteenth-century American law, where an emphasis on the limitations imposed by
state boundaries was likewise taking shape. Ironically, however, Pennoyer established these
rigid limits on the jurisdiction of courts at precisely the time when changes in technology and
patterns of economic and personal mobility were beginning to make such rigid territorial limits
unrealistic and, ultimately, untenable. Within a generation after the decision in Pennoyer, its
territorial approach to personal jurisdiction began presenting courts with knotty problems.

The most visible example was that of injuries caused by automobiles, which by the 1910s
had become ubiquitous. An out-of-state motorist could drive into a state, injure a resident there,
and leave the state before the day was over, much less before the plaintiff could initiate a lawsuit
in her home state. Pennoyer’s limitations on the assertion of in personam jurisdiction would, if
taken seriously, bar the initiation of a lawsuit by the injured plaintiff against the wrongdoer in
her own state (assuming the defendant had no property there); she was in theory limited to a
lawsuit in the wrongdoer’s home state, which for many people would be a considerable hardship.
Some states attempted to get around this situation by passing statutes declaring that, by the act of
driving into the state, an out-of-state motorist would be deemed to have designated the Secretary
of State or some other state official as the motorist’s agent for service of process. A lawsuit
against the motorist thus could be filed in the state’s courts simply by serving the complaint on
the designated state official. The whole process rested on a blatant fiction, since in fact the
driver did not actually “appoint” anyone, much less the Secretary of State, when crossing into the
state. In a classic example of trying to make an accommodation to practical reality while
maintaining the purity of the governing doctrine, the Supreme Court held that such statutes and
assertions of personal jurisdiction were constitutional, so long as the governing statute required
the state official to notify the out-of-state motorist that he had been sued – otherwise any
judgment entered against the motorist would be a violation of due process. But this cumbersome
procedure really amounted to an end-run around Pennoyer’s requirement that only those present
in the state could be haled into the state’s courts. The practical effect of the procedure was to
authorize a court to assert authority over an out-of-state defendant.

A second problem with Pennoyer was the question of how to justify personal jurisdiction
over a corporate defendant. By the late nineteenth century, multistate business operations,
including the sale of consumer goods, were an established and growing part of corporate
enterprise. There was no difficulty in determining the state in which a corporation had been
chartered, but could a corporation also be said to be “present” in other states in which it did
business, made sales, or otherwise carried out corporate operations? It quickly became clear that
to allow a business corporation to evade the reach of the courts in all states but the one in which
it had been incorporated would work a great deal of injustice to persons in other states who had
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been harmed at the corporation’s hands and had a valid legal claim against it. Many states
enacted statutes requiring “foreign” corporations (those incorporated in other states) to appoint
an in-state agent for service of process in order to do business there; if such a corporation failed
to appoint such an agent, a state official would be regarded as its agent for service of process,
much as in the automobile situation. The Supreme Court, surprisingly, upheld such statutes even
if the state official so designated and served never even bothered to notify the corporation that it
was being sued. These odd results, together with the unedifying metaphysical debates
concerning when a corporation should be considered to be “present” in a state for purposes of the
Pennoyer standard, eventually led to reconsideration of Pennoyer itself.

In 1945, the Supreme Court, in a case called International Shoe v. Washington,

significantly reshaped the constitutional test for determining when state courts may validly
exercise personal jurisdiction over a defendant. International Shoe, a corporation with its
principal place of business in Missouri and incorporated in Delaware, had several employees in
Washington who whose responsibility was to display the company’s shoes to prospective
purchasers. As a matter of law and policy, the State of Washington required all employers doing
business within the state to make contributions to the state unemployment insurance fund.
International Shoe declined to make its required contribution for the years in which it had
employees within the state, and when the State of Washington brought an action against
International Shoe in a state administrative tribunal to recover the required contributions,
International Shoe defended on two separate grounds: (1) that it was unconstitutional for
Washington even to require International Shoe to make the contributions, and (2) that it was
unconstitutional under Pennoyer for the courts of Washington to assert personal jurisdiction over
it. (Even though the initial forum was an administrative tribunal and not a traditional court, the
same arguments applied.) The case went up to the U.S. Supreme Court.

The Court disposed easily of the first contention; it concluded that Washington’s exaction
of unemployment insurance fund contributions from International Shoe was constitutional. On
the second point, the Court again rejected International Shoe’s argument, holding that it was
constitutional for the tribunals of Washington to assert personal jurisdiction over International
Shoe for the purpose of enforcing its unemployment fund assessment. But the Court also took
the opportunity to re-orient the constitutional analysis of personal jurisdiction, and, while it did
not explicitly overrule Pennoyer v. Neff, it made clear that the rigid territorial theory of Pennoyer
was no longer an adequate basis for determining the constitutionality of exercises of personal
jurisdiction by state courts. The key portion of the Court’s opinion is as follows:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto
power over the defendant's person. Hence his presence within the territorial jurisdiction of a court
was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff . . . But
now . . . due process requires only that in order to subject a defendant to a judgment in personam, if

9
 he be not present within the territory of the forum, he have certain minimum contacts with it such that
the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

The difference between this formulation and the test announced in Pennoyer is obvious.
Instead of a bright-line test based on whether the defendant was “present” in the state at the time
the lawsuit was filed, we have a more amorphous test asking whether the defendant has
“minimum contacts” with the forum, and what makes such “contacts” sufficient as a basis for
personal jurisdiction is that the assertion of jurisdiction be consistent with “traditional notions of
fair play and substantial justice.” Obviously, that is a far more subjective inquiry than
determining whether the defendant was present in the state at the time the lawsuit was filed. Just
as obviously, the Court’s “minimum contacts” standard was meant to eliminate metaphysical
questions about where a corporation is “present” from the personal jurisdiction analysis: The
Court held that International Shoe could legitimately be subjected to the authority of the
Washington courts in the particular case, not because it was “present” in the state but because its
activities there over a period of years made its subjection to the judicial authority of Washington
both reasonable and fair. Similarly, the “minimum contacts” standard would enable state courts
to assert personal jurisdiction over out-of-state drivers who caused injuries while temporarily
within the state but who left the state before a lawsuit could be brought against them; those
drivers certainly had the requisite “minimum contacts” with the state, and it would comport with
“traditional notions of fair play and substantial justice” for the state to assert judicial authority
over them.

The move from the Pennoyer standard to the International Shoe standard is characteristic
of twentieth-century legal thought in the United States. For a rigid, bright-line rule that is easy to
administer but that would lead to unacceptable results in some, perhaps many, cases, the Court
substituted a more subjective standard that permits courts to avoid such silly results in particular
cases but whose contours depend on the specific facts of the individual case. There is no
concrete dictionary definition of what connections on the part of a defendant with a state will
constitute “minimum contacts,” or of what constitutes “fair play” and “substantial justice.” What
we gain in the way of a more nuanced, fine-tuned assessment of whether personal jurisdiction is
legitimate in a particular case is countered by the imprecision and subjectivity of the test as a
general standard.

The “minimum contacts” test seems on the surface to be a sensible one that accords with
our intuitions in many situations, but it leaves many hard questions unanswered. For example, a
corporation like International Shoe will frequently do business of one kind or another in many
states at once. It has the requisite “minimum contacts” with Washington, making it fair and
reasonable for Washington to subject it to the state’s judicial process on a claim that the state
itself has against International Shoe for payments to the state unemployment insurance fund. But
do International Shoe’s contacts with Washington justify the assertion of personal jurisdiction

10
over International Shoe in Washington for any claim brought by anyone, no matter how
unrelated the claim is to the connections that International Shoe has with the state? For example,
suppose International Shoe fires a worker at its headquarters in Missouri, and the worker later
moves to the state of Washington. She sues International Shoe in Washington court for wrongful
termination. International Shoe, we know, has some contacts with Washington, and those are
sufficient to support jurisdiction there when the state seeks to enforce its unemployment fund
assessment. But will those connections justify the assertion of personal jurisdiction over
International Shoe when the fired employee sues the company there?

The answer is: Probably not. The Supreme Court in International Shoe indicated its
awareness of the danger that a “minimum contacts” standard could, if not subject to limitations,
be read to make a defendant subject to personal jurisdiction a state for any claim that any person
might wish to bring against the defendant there, even if the defendant’s particular contacts with
the state were entirely unconnected with the claim. Therefore, the Court distinguished between
situations in which the plaintiff’s claim arises out of the very contacts the defendant has with the
forum, and those in which the plaintiff’s claim does not. Thus, in the actual International Shoe
case, Washington’s claim for unpaid contributions to the state unemployment insurance fund is
closely connected to International Shoe’s contacts with the state: Those contacts consist of the
company’s business activities in the state, including employment of a few people who offer
samples of the company’s shoes to Washington retailers and other purchasers, and the state
unemployment assessments are predicated on those very in-state business activities. Personal
jurisdiction in this kind of situation is an example of what is called specific jurisdiction: The
company’s contacts with the state are sufficient to support personal jurisdiction there for claims
arising out of those very contacts, but they are not so pervasive as to justify personal jurisdiction
as to claims not arising out of those contacts.

Sometimes a defendant’s connections with the forum are so systematic, continuous, and
pervasive that no special inquiry is needed as to whether the claim being brought arises out of
those connections; the defendant may be sued in that state no matter what the claim is. This is
called general jurisdiction. The clearest examples of general jurisdiction are, for an individual,
that individual’s state of citizenship, and, for a corporation, that corporation’s state of
incorporation and the state where it has its principal place of business. In these situations, there
can hardly be any unfairness in the assertion by a state of personal jurisdiction, no matter how
unrelated the claim might be to the forum. (For example, to use the hypothetical with which we
began this handout, you may have caused bicycle accident in New Jersey while on a temporary
visit there; if you are a citizen of California and the injured party sues you in California, there is
little logical connection between the accident and California, but your connection with California
is so pervasive that there is no reason the courts of California may not assert personal jurisdiction
over you with respect to such a claim.)

When considering a personal jurisdiction problem, a little care in organizing the analysis
in terms of specific and general jurisdiction will pay dividends. One good approach is to ask,
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first, whether the defendant’s contacts with the forum as so systematic and pervasive as to justify
the conclusion that the defendant is subject to general jurisdiction there. If so, we have a case of
general jurisdiction and personal jurisdiction is valid regardless of what the claim is. If not, then
we should ask if the plaintiff’s claim could be said to arise out of the contacts that the defendant
does have with the forum. If so, then we have an instance of specific jurisdiction and personal
jurisdiction over the defendant is valid. If not, then there is no legitimate basis for personal
jurisdiction.

As a mode of analysis, the specific-general jurisdiction dichotomy – in particular, the

scope and meaning of the term “general jurisdiction” – has become more controversial in recent
years. The principal reason is that large corporations, including overseas corporations, can have
substantial impact on many people in many states even when their contacts with a given state
does not rise to the level that would support general jurisdiction, i.e. when they are not
incorporated and do not have their principal place of business in that state. Some believe that the
scope of general jurisdiction – the power of a state to assert judicial authority over a corporate
defendant even as to claims not specifically arising out of the defendant’s connections with the
forum – ought to be expanded to include states where the corporation’s activities have a
significant impact on the economy even though the state is not the corporation’s state of
incorporation nor its principal place of business. As you will see when considering the Supreme
Court’s recent decision in Goodyear Dunlop Tires Operations, S.A. v. Brown (2011), however,
the Court has not ratified this idea.

The imprecision of International Shoe’s “minimum contacts” test has led to a steady
stream of Supreme Court decisions refining the test and applying it to specific situations. As the
cases you will read illustrate, there are many scenarios, whether involving individual or
corporate defendants, tort or contract claims or even divorce actions, that can test the limits of
“minimum contacts.” One important problem has been what is called the “stream of commerce.”
An example is the situation in which a company in one state or country supplies a part to be
incorporated by another company in another state or country into a finished product, which is
then shipped to yet another state where it injures a consumer or worker. If it is alleged that the
part manufactured by the first company caused the injury, can that company be subjected to the
jurisdiction of the courts in the state of injury, even if it did not know where the finished product
would ultimately be shipped or used? More recently, the advent of the Internet and “e-
commerce” has generated a new set of problems concerning where individuals and companies
with an Internet presence can be sued for injuries allegedly caused by products they market, or
statements they make, on their websites. The following cases will explore some of the numerous
variations on these themes.

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