OPTIONAL - Law Review Article - Personal Jurisdiction After Asahi

Pace Law Review
Volume 9
Article 3
Issue 3 Summer 1989
June 1989
Contacts, Fairness and State Interests: Personal

Jurisdiction after Ashai Metal Industry Co. v.
Superior Court of California
Bruce N. Morton
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Recommended Citation
Bruce N. Morton, Contacts, Fairness and State Interests: Personal Jurisdiction after Ashai Metal Industry
Co. v. Superior Court of California, 9 Pace L. Rev. 451 (1989)
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Contacts, Fairness and State Interests:
Personal Jurisdiction after Asahi Metal
Industry Co. v. Superior Court of California.
Bruce N. Mortont
I. Introduction
On February 24, 1987, the Supreme Court decided the case
of Asahi Metal Industry Co. v. Superior Court of California.1
This case is now the Supreme Court's most recent pronounce-
ment2 in the area of personal jurisdiction.3 Unfortunately, Asahi
has only further obfuscated a realm of law already confusing and
uncertain. The law of personal jurisdiction involves several theo-
retical issues more complex than simplistic reference to "mini-
mum contacts" would lead one to expect."
This Article will set forth the current state of the law of
personal jurisdiction, focusing on some of these complexities and
issues. Part II delineates two fundamental, threshold issues un-
t B.S., Juilliard School of Music; Ph.D., University of Rochester; J.D., University of

Michigan.
My deepest thanks to Pam Armstrong for her invaluable assistance, not only as an
indefatiguable researcher and a superb editor, but also for her perceptive comments and
criticisms, which led to many clarifications and improvements. I also thank Willis Moore
for research assistance, and Michelle Chaikin and Carolyn Popielarski who typed and
retyped the manuscript patiently and efficiently, and who always seemed to understand
what the lines and arrows meant.
1. 480 U.S. 102 (1987).
2. The only Supreme Court case to cite Asahi is Bendix Autolite Corp. v. Midwesco
Enter., 108 S. Ct. 2218 (1988), however, Bendix relates not to personal jurisdiction, but
to the constitutionality of an Ohio statute tolling the statute of limitations while a de-
fendant is not present within the state.
3. "Personal jurisdiction," as used here, refers to the authority of a court to adjudi-
cate the rights, interests and obligations of a party against whom a claim has been as-
serted. In general, personal jurisdiction is required in both state and federal courts, and
the issues and problems are the same in both systems. Personal jurisdiction is to be
contrasted with "subject matter jurisdiction," which refers to the power or competence
of the court to hear the type of case before it. J. FRIEDENTHAL, M. KANE, A. MILLER, Civil
Procedure § 2.1 (1985).
4. International Shoe v. Washington, 326 U.S. 310, 316 (1945), see infra notes 7-32
and accompanying text.
1
PACE LAW REVIEW [Vol. 9:451
derlying all personal jurisdiction questions. The first is whether

the minimum contacts test is ultimately concerned with contacts
or with fairness. The second, related issue, questions whether re-
strictions on the power of a court to assert jurisdiction over a
defendant are grounded solely on the due process clause of the
fourteenth amendment, or whether the concept of state sover-
eignty provides a separate and independent source of those re-
strictions. This Article takes the position that the minimum con-
tacts test is ultimately about fairness, and that the sole source of
restrictions on the assertion of personal jurisdiction is the due
process clause. Part II also discusses three significant Supreme
Court decisions which set the stage for Asahi.
Part III of this Article sets forth the facts and procedural
underpinnings of Asahi, and analyzes the Court's reasoning.
Part III also evaluates the impact of the case by examining sev-
eral later opinions from the lower federal courts.
This Article argues throughout that two widely held views
on personal jurisdiction should be rejected. The first doctrine
holds that a necessary condition to the assertion of personal ju-
risdiction is that the defendant must have "purposefully
availed" himself of the benefits and protections of the laws of
the forum state.5 This doctrine should be rejected because the
ultimate basis upon which personal jurisdiction may be asserted
should remain the defendant's presence, whether literal or meta-
phorical, in the forum state. The determination of where one is
cannot be analyzed, ultimately, in terms of where one intends to
be, or in terms of one's purposes.
A second widely accepted doctrine is the "state interest"
theory 6 or the view that the right of a court to assert jurisdiction
over a defendant rests in part on the interests of a forum state
in resolving a particular controversy. This doctrine should also
be rejected. Since the sole source of restriction on personal juris-
diction is the due process clause, and since considerations of
state interest are unrelated to the due process rights of the de-
fendant, it follows that forum state interests are irrelevant to
questions of personal jurisdiction.
It is an unusual combination of views to affirm that the ulti-
5. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

6. See infra notes 33-55 and accompanying text.
http://digitalcommons.pace.edu/plr/vol9/iss3/3 2
19891 AFTER ASAHI
mate basis for personal jurisdiction is fairness, and simultane-

ously to reject the state interest theory. On the contrary, most
people who would affirm the fairness basis for jurisdiction do so
in order to affirm the importance of considerations other than
the defendant's contacts with the forum, especially state inter-
est. But, accepting "fairness" as the ultimate test of personal ju-
risdiction in no way implies acceptance of the state interest doc-
trine. Rather, the fairness test is wholly consistent with the view
that the defendant's contacts with the forum are and should be
the only relevant factor in determining what is fair.
II. Background
A. Traditional Threshold Issues Underlying Personal
Jurisdiction
1. Contacts and Fairness
The basic test of whether an assertion of personal jurisdic-
tion is constitutional7 is the well-known "minimum contacts"
test, articulated in InternationalShoe v. Washington :8
[D]ue process requires only that in order to subject a defendant
to a judgment in personam, if he be not present within the terri-
tory of the forum, he have certain minimum contacts with it such
that the maintenance of the suit does not offend 'traditional no-
tions of fair play and substantial justice.' s
This test was extended in Shaffer v. Heitner,10 where Justice
Marshall wrote: "We . . . conclude that all assertions of state-
court jurisdiction must be evaluated according to the standards
set forth in InternationalShoe and its progeny.""
The InternationalShoe minimum contacts standard, as ex-
7. Assertions of jurisdiction are subject to both constitutional and statutory limita-

tions. If a state statute does not go to the limits of what is constitutionally permitted,
then the state statute may present a further limitation on the assertion of jurisdiction
beyond federal constitutional limitations. This Article focuses on federal constitutional
issues.
8.326 U.S. 310 (1945).
9. Id. at 316 (quoting Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (1930)).
10. 433 U.S. 186 (1977).
11. Id. at 212. The point of the word "all" in this passage is that the minimum
contacts standard now applies not only to jurisdiction traditionally termed "in per-
sonan," but also to that traditionally termed "in rem" and "quasi-in-rem." Id.
3
tended by Shaffer, is both broad, in respect to the number of

cases which call for its application, and general, in that the lan-
guage of the standard gives little guidance as to how it is to be
applied in particular cases.12 But InternationalShoe was a care-
fully crafted opinion which clearly, if cryptically, pointed in the
right direction for the future evolution of the law. Subsequent
courts have either misunderstood the code, or chosen not to fol-
low the directions. The author's rejection of much of what later
courts have said about personal jurisdiction is based upon a
careful return to the letter and spirit of International Shoe,
with its focus upon fairness to the defendant, based upon the
defendant's presence in the forum.' s
The common sense basis for the minimum contacts test is
easily discerned. In general, it is fair to expect a defendant to
answer a suit in a jurisdiction where he is present, unfair other-
wise. " At the very least, a defendant must have some contacts
or connection with a forum in order to be deemed legally present
for the purposes of asserting jurisdiction over him. 5 But, was
the essence of the test in InternationalShoe intended to be con-
tacts or fairness? That is, was the ultimate inquiry intended to
be whether the defendant had certain objective contacts with
the forum, such that if they were present, fairness would be pre-
sumed, or was the ultimate inquiry intended to be whether the
assertion of jurisdiction was fair?
The InternationalShoe Court takes for granted that what
is at stake in jurisdictional analysis is what due process requires,
and that all that is required is that an absent defendant have
such minimum contacts that the maintenance of the suit does
12. Professor Hazard has written that the InternationalShoe test is a good one but
has noted that "because of its generality, it must be subjected to a process of 'arbitrary
particularization' in order to come up with workable rules." Hazard, A General Theory
of State Court Jursidiction,1965 SuP. CT. REV. 241, 277-88, cited in LANDERS, MARTIN &
YEAZELL, CIVIL PROCEDURE 173 (1988).
13. It is true, of course, that the minimum contacts test refers to the circumstance
where the defendant is not present within the forum, but the opinion makes clear that it
in no way rejects presence as the essential basis for jurisdiction. Rather, the opinion
expands the concept of presence to include more than literal physical presence. See In-
ternational Shoe v. Washington, 326 U.S. 310, 316-17 (1945).
14. See Pennoyer v. Neff, 95 U.S. 714, 733 (1877).
15. InternationalShoe, 326 U.S. at 316.
1989] AFTER ASAHI
not offend fair play and substantial justice."' Due process is a

normative or a moral concept. Due process is the process to
which one is entitled; the process to which one has a right; the
process which it would be wrong to deprive one of. Normative
concepts, such as due process, are notoriously resistant to defini-
tion or analysis in non-normative, descriptive terms. There is an
inevitable gap between factual premises describing how things
are, and normative conclusions as to how they ought to be. Some
philosophers have argued that it is inherently impossible to
bridge this gap, and they have spoken of the "fallacy" of at-
tempting to do so. 17 Whether or not these arguments are sound,
they help explain why the normative concept of due process is
analyzed in InternationalShoe by means of another normative
concept, fairness to the defendant, and why the minimum con-
tacts test must be interpreted as ultimately focusing on fairness,
rather than on the purely factual, descriptive notion of contacts.
It is only the normative concept of fairness which captures the
elements of entitlement and obligation built into the constitu-
tional standard of due process.'"
The same issues of how to bridge the gap between the nor-
mative and the non-normative reappear when one considers how
to apply the standard of fairness to particular cases. One cannot
just look at a situation and perceive fairness as one perceives
descriptive characteristics. The minimum contacts test of Inter-
national Shoe ties together the concepts of fairness and contacts
by requiring sufficient contacts so that the maintenance of the
suit is not unfair.' It is clear that the Supreme Court was pro-
16. Id.
17. See, e.g., G. E. MOORE, PRINCIPIA ETHICA, passim (1986).
18. This is the answer to Justice Black's insistent rejection, in his dissent, of a stan-
dard for jurisdiction based upon "fair-play," or any idea of "natural justice." Justice
Black states:
I believe that the Federal Constitution leaves to each State, without any "ifs"
or "buts," a power to ... open the doors of its courts for its citizens to sue corpo-
rations whose agents do business in those States .... I think it a judicial depriva-
tion to condition its exercise upon this Court's notion of "fair play," however ap-
pealing that term may be.
InternationalShoe, 326 U.S. at 324-25 (Black, J., dissenting). But since the constitu-
tional standard of due process includes within its meaning the notion of right or entitle-
ment, there is no alternative to an essentially normative inquiry into how it is just or fair
to treat that defendant.
19. Id., at 316.
5
posing some kind of relation between the concepts of contacts

and fairness. The Court's language cannot reasonably be inter-
preted, as courts today routinely interpret it, 20 to mean that
there are two separate and independent constitutionally based
tests, the contacts test and the fairness test, both of which must
be met in order for jurisdiction to be constitutional.2 1
Does the Court unequivocally assert that the defendant's
contacts with the forum are the sole factors relevant to the juris-
dictional analysis, and may one thereby conclude that the intro-
duction of other factors, such as state interests, is unfaithful to
the spirit of International Shoe? The only language which sug-
gests otherwise is the Court's reference to convenience, (actually
"inconvenience"), 2 and the Court's remark that "[w]hether due
process is satisfied must depend.., upon the quality and nature
of the activity in relation to the fair and orderly administration
of the laws which it was the purpose of the due process clause to
insure. Perhaps it could be argued that this reference to "fair
and orderly administration of laws" is the peg needed to support
the introduction of the state interest doctrine. 2' But the Court
immediately limits the scope of the "fair and orderly" language
by tying it to the purpose of the due process clause. 5 This is
why the elaborate state interest doctrines now in fashion go far
beyond any reasonable interpretation of this language. If these
doctrines may be justified at all, it must be on some basis other
than faithfulness to the minimum contacts test as originally
propounded.
20. The following cases are typical of the due process analysis currently imple-
mented by lower federal courts applying the two-part InternationalShoe test: Irving v.
Owens-Corning Fiberglass Corp., 864 F.2d 383 (5th Cir. 1989); Benally v. Amon Carter
Museum of Modern Art, 858 F.2d 618 (10th Cir. 1988); Williams Electric Co., Inc. v.
Honeywell, Inc., 854 F.2d 389 (11th Cir. 1988); East Vail Townhomes Inc., v. Eurasian
Development D.A., Inc., 716 F.2d 1346 (10th Cir. 1983); Hedrick v. Daiko Shoji Co., 715
F.2d 1355 (9th Cir. 1983); DeMelo v. Touche Marine, Inc., 711 F.2d 1260 (5th Cir. 1983).
21. InternationalShoe, 326 U.S. 310. It is consistent to treat certain objective con-
tacts as guidelines or rules of thumb, in the presence of which the assertion of jurisdic-
tion will normally be fair. But the InternationalShoe Court stressed that the degree of
contacts required cannot be determined in a way which is "simply mechanical or quanti-
tative." Id. at 319.
22. Id. at 317.
23. Id. at 319 (emphasis added).
24. Id.
25. Id.
19891 AFTER ASAHI
Undeniably, the Court's reference to "convenience" in-

troduces a factor other than objective defendant-forum contacts.
The Court states: "An 'estimate of the inconveniences' which
would result to the [defendant]26 from a trial away from its
'home' or principal place of business is relevant in this connec-
tion." The "connection" to which the Court refers is explained
in the preceding sentence: "Those demands may be met by such
contacts of the corporation with the state of the forum as make
it reasonable, in the context of our federal system of govern-
ment, to require the corporation to defend the particular suit
which is brought there."28
' And the sentence preceding this states
that the "demands" at issue are the "demands of due process." 29 '
Whatever the Court meant by the curious phrase "to make
it reasonable, in the context of our federal system of govern-
ment," the key point again is that this language is tied to satis-
fying the demands of due process, that is, the due process rights
of the defendant, and that the convenience referred to is the
convenience of the defendant. This passage cannot reasonably
be interpreted as endorsing a grand convenience and reasonable-
ness theory of jurisdiction where one tabulates many different
interests - the preferences of all the parties, the convenience
of witnesses, the congestion of the courts, the social policies of
the states.30 These factors are more appropriately invoked under
the heading of venue. The reference to the "federal system of
government," in view of the limitation of the phrase to the due
process rights of the defendant, can only be understood as mak-
ing the modest point that we have a complex system of courts
and that some courts are likely to be more convenient than
others to the defendant.
It may be convenient for a defendant to appear in a forum
in which he has never been present, in which he conducts no
26. The phrase "to the corporation," and the pronoun "its" plainly refer to the de-
fendant. The minimum contacts test was extended to defendants other than corportions
in Hanson v. Denckla, 357 U.S. 235, 251 (1958) (Court referred to the minimum contacts
test as applying generally to a defendant).
27. International Shoe, 326 U.S. at 317 (emphasis added) (quoting Hutchinson v.
Chase & Gilbert, 45 F.2d 139, 141 (1930)).
28. Id., at 317.
29. Id.
30. See generally World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 292-94
(1980), for an example of a case in which these factors are considered.
7
business, in which he has no agent or representative, in short, in

which he has none of the contacts traditionally thought neces-
sary as described in International Shoe and its progeny. The
simplest illustration is one where the defendant's activities are
conducted exclusively within the boundaries of his home state,
but the courthouse of an adjoining state is located within a few
miles from his home and place of business. Consistent with the
International Shoe Court's discussion of convenience, the ad-
joining state court might allow the assertion of jurisdiction over
the defendant on the basis of fewer objective contacts than
might otherwise be required. Conversely, a defendant may be
grossly inconvenienced if required to appear in a forum where
traditional contacts are present. In the latter case, the inconve-
nience must be weighed against the factors favoring jurisdiction
to decide whether allowing jurisdiction would be fair. Ulti-
mately, it does not matter whether one treats convenience to the
defendant as a kind of contact, or whether one treats it as a sep-
arate factor other than contacts, as long as one keeps in mind
that the basic standard is fairness and that convenience is one
factor subsumed under that heading.
To what extent should courts consider the circumstances
peculiar to a specific defendant when estimating whether the in-
convenience to the defendant makes an assertion of jurisdiction
unfair? It may be more inconvenient for one defendant than for
another to submit to jurisdiction in a forum under otherwise
identical conditions. The status of the defendant as a corpora-
tion, natural person, or other legal entity, and the financial
means of the defendant are the factors to be considered in this
analysis. Since the ultimate test is fairness to the defendant, and
since the emphasis in International Shoe is on avoiding
mechanical determinations by considering the facts of each
case, 31 courts should be permitted to take such factors into ac-
count. The Supreme Court has endorsed this position in Burger
King Corp. v. Rudzewicz. s2
31. 326 U.S. at 319.

32. 471 U.S. 462 (1985). See infra notes 107-132 and accompanying text. Another
recent case which appears to take into account the relative means and status of the par-
ties in assessing a jurisdictional issue is Sollinger v. Nasco International, Inc., 655 F.
Supp. 1385 (D. Vt. 1987). The court refers to the plaintiff as a "Vermont craftperson"
and although the court does not explicitly refer to the corporate status of defendant in
1989] AFTER ASAHI
2. Due Process and State Sovereignty

The minimum contacts test today functions primarily, and
perhaps solely, as an implementation of the due process clause
of the fourteenth amendment. The basic statement in Interna-
tional Shoe of the minimum contacts test assumes that what is
at stake is due process, and by implication, that the due process
rights involved are those of the defendant."3 But traditionally,
limitations on the assertion of state court jurisdiction were
based upon the concept of sovereign rights possessed by states
within the federal system.,4 The argument for limitations based
on federalism is as follows: the states stand as coequal sover-
eigns, and possess rights against each other. Therefore, a state
may not assert jurisdiction over a person or property located in
another state, because to do so would violate a right possessed
by another, coequal sovereign."
This territorial sovereignty theory of jurisdiction is tradi-
tionally traced to the celebrated case of Pennoyer v. Neff, 6 but
even there, the authority for the territorial theory is less persua-
sive than one might have hoped. The argument is based on the
contention that the several states of the United States are in all
respects like independent countries, except insofar as the federal
constitution is to the contrary." The Pennoyer Court then
stated that there are "two well-established principles of public
law" respecting the jurisdiction of an independent state over
persons and property.3 8 These are the propositions that "every
State possesses exclusive jurisdiction and sovereignty over per-
sons and property within its territory"39 and that "no State can
exercise direct jurisdiction and authority over persons or prop-
erty without its territory. ' ' 40 The Pennoyer Court never asserted
this context, it states that "[diefendant would face only minor inconvenience in coming
to Vermont to resolve the dispute." Id. at 1388.
33. 326 U.S. at 320.
34. Pennoyer v. Neff, 95 U.S. 714, 722 (1877).
35. Id.
36. 95 U.S. 714.
37. Id. at 722. "[E]xcept as restrained and limited by [the Constitution], they pos-
sess and exercise the authority of independent States, and the principles of public
law. . . are applicable to them." Id.
38. Id.
39. Id.
40. Id.
9
that there was a direct constitutional basis for the territorial

theory of jurisdiction, but rather assumed that this theory fol-
lowed from the concept of sovereignty rooted in international
law as that concept extended to the United States' federal
system."'
But the Pennoyer argument for the territorial-sovereignty
theory based upon the international analogy is unsound. Under
the international model, where one sovereign exercises jurisdic-
tion for a wrong committed elsewhere, without the consent of
that nation, the objection is not that this is unfair to the alleged
wrongdoer, but rather that such an exercise is an affront or in-
sult to the sovereign nation where the wrong was committed."2
In other words, the injured party is the second sovereign nation,
not the person over whom jurisdiction is asserted. The right to
assert immunity from jurisdiction does not, therefore, belong to
the defendant. The immunity must be asserted by, and may be
waived by, the offended nation. Thus, the territorial-sovereignty
model of personal jurisdiction does not provide a theoretical un-
derpinning for the right of a defendant to move for a dismissal
of an action on the grounds of absence of personal jurisdiction.
Pennoyer implicitly recognized that in international law,
immunity belongs to the nation, not to the individual defend-
ant.4'3 The Court noted that while the valid judgments of a na-
tion may have indirect effects elsewhere, any direct attempt by
41. For a discussion of the Court's theory of jurisdiction based on "principles of

general, if not universal, law" see id. at 720.
42. See, e.g., P. SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS (1983). In a
discussion of the traditional law as to the rights in general of an individual against a
state, the author observed that international law has always "demanded substantial pro-
tection for aliens within a State." Id. § 1.5, at 12. Sieghart goes on to state:
But even that demand flowed from the doctrine of national sovereignty it-
self - so that, if a State fell short of the requirement to protect another State's
nationals, for example by expropriating their property, the compensation was due
to the other State whose "personal" sovereignty had been violated, not to the indi-
vidual whose property had been taken.
Id. While this treatise analyzed the inroads on this traditional doctrine in the field of
international human rights, by implication, the broad principle still applies generally,
and in particular to the case of an individual litigant claiming immunity from the juris-
diction of a foreign sovereign.
43. "The several States are of equal dignity and authority, and the independence of
one implies the exclusion of power from all others. And so . . . the laws of one State
[nation] have no operation outside of its territory, Except so far as is allowed by com-
ity." Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (emphasis added).
19891 AFTER ASAHI
one nation to affect persons or property located elsewhere or to

give extraterritorial operation to that nation's own laws "would
be deemed an encroachment upon the independence of the State
in which the persons are domiciled or the property is situated,
and be resisted as usurpation."" The Pennoyer Court recog-
nized that in the international context, jurisdiction over the in-
dividual defendant may be consented to by the nation, even over
the objection of the individual. Therefore, the international
model does not provide a basis for an individual defendant to
claim a personal immunity from jurisdiction. 5
The Supreme Court has repeatedly flipflopped on the issue
of whether the territorial-sovereignty theory provides an inde-
pendent basis for limitations on jurisdiction. In World-Wide
Volkswagen Corp. v. Woodson," for example, the Court affirmed
that the territorial-sovereignty theory provided such a limita-
tion,"1 but in the recent case of Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee," the Court reversed itself,
stating:
The restriction on state sovereign power described in World-
Wide Volkswagen Corp., however, must be seen as ultimately a
function of the individual liberty interest preserved by the Due
Process Clause. That Clause is the only source of the personal
jurisdiction requirement and the Clause itself makes no mention
of federalism concerns. Furthermore, if the federalism concept
operated as an independent restriction on the sovereign power of
the court, it would not be possible to waive the personal jurisdic-
tion requirement: Individual actions cannot change the powers of
sovereignty, although the individual can subject himself to powers
from which he may otherwise be protected."'
Citing World Wide with approval, however, the Court held
44. Id. at 723.

45. See, e.g., Lewis, The Three Deaths Of "State Sovereignty" and the Curse of
Abstraction in the Jurisprudenceof Personal Jurisdiction,58 NOTRE DAME L. REV. 699
(1983); Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical
Evaluation, 75 Nw. U.L. REV. 1112 (1981). Professor Redish provided a careful historical
analysis demonstrating the absence of any basis for a link between federalism and due
process concerns.
46. 444 U.S. 286 (1980).
47. Id. at 293-94.
48. 456 U.S. 694 (1982).
49. Id. at 703 n.10.
11
in Asahi Metal Industry Co. v. Superior Court of California,"

that the determination of the reasonableness of the exercise of
jurisdiction depends among other things upon the "shared inter-
est of the several States in furthering fundamental substantive
social policies."5 1 At least one court 2 has suggested that the
Asahi holding amounts to a retreat by the Supreme Court from
its position in Insurance Corp. of Ireland.5 s This conclusion
does not necessarily follow. One may consistently hold that the
shared interest of the states in fostering substantive social poli-
cies is a relevant factor in determining the constitutionality of
an exercise of jurisdiction, without being committed to the terri-
torial-sovereignty theory of jurisdiction. " That is, one could ar-
gue (though we do not) that the interest of the states in foster-
ing policies is a factor relevant to the fairness to the defendant,
under the due process clause, of an exercise of jurisdiction.55 The
law on this point unfortunately remains uncertain, and the Su-
preme Court has yet to write the final chapter.
B. Setting the Stage for Asahi

1. World-Wide Volkswagen Corp. v. Woodson
a. Majority Opinion
World- Wide Volkswagen Corp. v. Woodson"6 illustrates
some of the issues and problems alluded to above and provides
50. 480 U.S. 102, 113 (1987).

51. Id. (quoting World- Wide Volkswagen, 444 U.S. 286, 292 (1980)).
52. See Bearry v. Beech Aircraft Corp., 818 F.2d 370, 373 (5th Cir. 1987); see also
infra notes 209-18 and accompanying text.
53. 456 U.S. 694, 703 n.10 (1982).
55. This point is emphasized because at least one very recent case confuses the issue
of whether forum state interest is relevant to the jurisdictional analysis with the issue of
whether state sovereignty is a source of jurisdictional restrictions. See Simmons v. Sea-
tide Int'l Inc., 693 F. Supp. 510 (E.D. La. 1988). There the court stated:
With its decision in InternationalShoe, the Supreme Court rejected the concep-
tion of personal jurisdiction based solely on notions of state sovereignty. But in no
way has the Court abandoned this conception as a partial basis for its decisions on
personal jurisdiction. The Court continues to explain its holdings on grounds of
fairness by looking at burdens and convenience to the parties and at interest of
the states in the litigation.
Id. at 514 (citations omitted).
56. 444 U.S. 286 (1980).
1989] AFTER ASAHI
the necessary foundation for examining the most recent law. In

World-Wide, Harry and Kay Robinson brought a products lia-
bility action in Oklahoma state court as a result of an automo-
bile accident in Oklahoma in which their Audi automobile was
struck in the rear. 7 The resulting fire severely burned Kay
Robinson and her two children.58 Among the named defendants
were Audi NSU Auto Union Aktiengesellschaft, the manufac-
turer of their automobile; Volkswagen of America, Inc., its im-
porter; World-Wide Volkswagen Corporation (World-Wide), its
regional distributor; and Seaway, the retail dealer from which
the Robinsons purchased the Audi automobile.5 9 Both World-
Wide and Seaway were incorporated and had their principal
place of business in New York; World-Wide distributed vehicles,
parts, and accessories to retail dealers in New York, New Jersey,
and Connecticut."
Seaway and World-Wide entered special appearances con-
tending that "Oklahoma's exercise of [personal] jurisdiction over
them would offend limitations on the State's jurisdiction im-
posed by the due process clause of the fourteenth amend-
ment."6 ' The Oklahoma district court rejected this contention
and held that it could validly assert jurisdiction over these de-
fendants. 62 The defendants sought a writ of prohibition to re-
strain Woodson, the Oklahoma judge, from exercising jurisdic-
tion over them, but the Supreme Court of Oklahoma denied the
writ and upheld personal jurisdiction. 63 The court made the ar-
guments that: (a) given the nature and purpose of the product
involved (an automobile), it is reasonably foreseeable that the
product would find its way to Oklahoma and cause injury, and
(b) given the retail value of an automobile, it is reasonable to
infer that defendants "derive substantial income from
automobiles which from time to time are used in the State of
Oklahoma.""'
57. Id. at 288.

58. Id.
59. Id.
60. Id. at 288-89.
61. Id. at 288.
62. Id.
63. Id. at 289-90.
64. Id. at 290.
13
Upon certiorari, the United States Supreme Court reversed

and denied jurisdiction. 5 One difficulty faced by the Court is
that the lower court was not explicit as to the logical status of
the two arguments (a) and (b) above. Did the Oklahoma court
hold that each point was individually sufficient to support the
result and that the two arguments were therefore cumulative?
Did it believe that the two arguments were jointly, but not indi-
vidually sufficient and were somehow related to each other? Or
did it consider one of the two arguments to be the key, and the
other merely additional support? In concrete terms, did the
Oklahoma court believe that it was sufficient to support jurisdic-
tion that, because of the inherent mobility of the automobile,
petitioners could reasonably foresee that the Robinsons' auto-
mobile, after being injected into the stream of commerce, would
make its way to Oklahoma and cause injury there? Or was it
necessary to the Oklahoma court's holding that the defendants
derive substantial revenue from products used in Oklahoma? If
that finding was necessary, to what extent did the Supreme
Court reject the lower court's reasoning solely because the find-
ing was based upon a reasonable inference, rather than an ex-
plicit showing, that the defendants derived such revenue?
With respect to the Oklahoma court's foreseeability argu-
ment, (a) above, the Supreme Court stated categorically that
"'foreseeability' alone has never been a sufficient benchmark for
personal jurisdiction . ... " The Court pointed out that if this
were the rule, "amenability to suit would travel with the chat-
tel, '6 7 and the Court analogized this to the abandoned rule of
Harris v. Balk.18 But the Court continued with perhaps the most
quoted passage in the opinion:
This is not to say, of course, that foreseeability is wholly ir-
relevant. But the foreseeability that is critical to due process
analysis is not the mere likelihood that a product will find its way
into the forum State. Rather, it is that the defendant's conduct
and connection with the forum State are such that he should rea-
65. Id. at 291.

66. Id. at 295.
67. Id. at 296.
68. Id. (citing Harrisv. Balk, 198 U.S. 215 (1905) (establishing the rule that a court
could secure quasi-in-rem jurisdiction over an absent creditor by attaching the obligation
to him of a debtor who was subject to a service of process within the forum)).
1989] AFTER ASAHI
sonably anticipate being haled into court there."'
This "haled into court" standard is the closest the Supreme

Court comes to articulating a general theory of personal jurisdic-
tion. The reference to what the defendant should "reasonably
anticipate" suggests that the Court is emphasizing the element
of fairness to the defendant. But the standard borders on the
vacuous. How does one know when one should reasonably antici-
pate being haled into court and subjected to personal jurisdic-
tion? What one reasonably anticipates is that existing law will
be fairly and consistently applied. But the existing law on the
subject is whatever the Supreme Court says it is. Thus, the Su-
preme Court's purported new test for personal jurisdiction is
useless and circular without independent substantive criteria to
guide one's reasonable anticipations. Consequently, the old
problems of determining what contacts are sufficient for per-
sonal jurisdiction reappear when one tries to identify substan-
tive criteria for what should be reasonably anticipated.
What guidance does the Court give in providing such sub-
stantive criteria? Here the purposeful availment standard rears
its head. The Court refers to the oft-quoted language from Han-
son v. Denckla70 that the "unilateral activity of those who claim
some relationship with a nonresident defendant cannot satisfy
the requirement of contact with the forum State, ' 1 and that a
defendant must purposely avail itself of the forum in order to be
subject to jurisdiction there.7 2 Here the plaintiffs themselves
moved their automobile into the forum state. But, the Court
asked, did the defendants do anything amounting to the pur-
poseful activity necessary for jurisdiction? The Court then dis-
cusses at least four factors which might be relevant to the deter-
mination of whether a defendant has engaged in such purposeful
activity: the intent of the defendant, the knowledge of the de-
fendant, the expectation of the defendant, and the amount of
financial benefit accruing to the defendant from the use of its
products in the forum state.73 The Court appears to stress the
69. Id. at 297.

70. 357 U.S. 235 (1958).
71. Id. at 253 (quoted in World-Wide Volkswagen, 444 U.S. at 298).
72. Id.
73. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297-98 (1980).
15
defendant's intent, and to downplay the objective financial ben-

efit accruing to the defendant. That is, the Court suggests that it
is sufficient for personal jurisdiction in a state that a defendant
inject a product into the stream of commerce where he deliber-
ately seeks to exploit the market of that forum state:
[I]f the sale of a product of a manufacturer or distributor ... is
not simply an isolated occurrence, but arises from the efforts of
the manufacturer or distributor to serve, directly or indirectly,
the market for its product in other States, it is not unreasonable
to subject it to suit in one of those States if its allegedly defective
merchandise has there been the source of injury to its owner or to
7
others. 4
Taken literally, to subject a defendant to jurisdiction in a forum,
this passage requires a causal connection between the sale of the
product which causes the injury and the effort to serve the mar-
ket "if the sale ... arises from the efforts." 5 The phrase, "the
sale," can only refer to the sale of the specific item which causes
the injury. But how would the Court analyze the case where a
sale is made and the defendant conducts promotional efforts in
the forum state, but where there is no causal connection be-
tween the efforts and the sale? Suppose, for example, that
World-Wide had run advertisements in newspapers in Tulsa and
Oklahoma City, but that the Robinsons had never seen and were
wholly unaware of these advertisements when they bought their
Audi and drove it into Oklahoma. Two further possibilities exist
74. Id. at 297 (emphasis added).

75. Id. (emphasis added). Presumably this causal language simply follows from the
fact that the Court is concerned with specific, rather than general, jurisdiction. Where a
cause of action arises out of or relates to defendant's conduct in the forum, "specific"
jurisdiction is required and the "minimum contacts" standard applies. Where the cause
of action is unrelated to defendant's conduct in the forum, "general jurisdiction" must be
established over the defendant, and the more stringent test of "consistent and system-
atic" contacts with the forum must be met. See Helicopteros Nacionales de Colombia, S.
A. v. Hall, 466 U.S. 408 (1984). For a recent case discussing the distinction between
specific and general jurisdiction, see, e.g., Dupont Tire Serv. Center, Inc. v. North Ston-
ington Auto Truck Plaza, Inc., 659 F. Supp. 861 (D.R.I. 1987). There the court held that
a single trip by an officer of defendant to the forum state constituted sufficient contacts
for specific jurisdiction where the parties' negotiations were purposefully directed to-
wards activities within the forum state, where the contract was physically negotiated
while both parties were in the forum state, and where the parties' actual and contem-
plated course of dealing was purposefully directed towards the forum state. See also
Huang v. Sentinel Gov't Sec. 657 F. Supp 485, 488-89 (S.D.N.Y. 1987).
19891 AFTER ASAHI
on these facts: either the promotional activities had been suc-

cessful, and some sales in Oklahoma had been generated, or they
had been entirely unsuccessful, and absolutely no business had
been generated for World-Wide by these ill-advised promotional
activities in Oklahoma. If one takes the above quotation liter-
ally, the Supreme Court would not find specific jurisdiction in
either of these situations, since the sale to the Robinsons was
causally unrelated to the advertising in Oklahoma and thus did
not arise from the defendant's efforts in Oklahoma.
But curiously, the Court continues: "The forum State does
not exceed its powers under the due process clause if it asserts
personal jurisdiction over a corporation that delivers its prod-
ucts into the stream of commerce with the expectation that they
will be purchased by consumers in the forum State. ' 76 This lan-
guage suggests that the mere knowledge of a defendant that its
products are likely to be sold in a foreign state is sufficient for
specific jurisdiction over that defendant, since one may expect to
make sales in a foreign market without making efforts to serve
it. However, this statement by the Court which bases jurisdic-
tion on expectation must be an aberration. The entire thrust of
World-Wide is that the mere injection of a product into the
stream of commerce, even where it is foreseeable and therefore
within one's reasonable expectations that it may cause injury
elsewhere, is not sufficient for jurisdiction in a foreign forum.
Basing jurisdiction on expectation is inconsistent with requiring
causal connection between the efforts and the sale.
This apparent inconsistency is illustrated by the situation
where the seller-defendant makes no promotional or distribu-
tional efforts in the forum state, but does gain knowledge that a
sale is intended for use there. Suppose, for example, that a cus-
tomer of World-Wide had casually remarked that he was a resi-
dent of Oklahoma, soon to return, or that he was about to move,
or travel there. Would World-Wide's voluntary consummation of
this sale with this knowledge constitute sufficient purposeful
availment to subject World-Wide to jurisdiction once the acci-
dent occurred in Oklahoma? Would it make a difference if this
were a large sale of many vehicles for use in Oklahoma? If one
takes the Court's words literally, jurisdiction would exist under
76. 444 U.S. at 297-98 (emphasis added).
17
the "expectation" language (the language previously termed an

aberration). Under the "efforts" language, the answer would de-
pend on whether a sale with knowledge of the intended place of
use constituted an effort to serve that market. It is worth noting
that the Court referred to "the efforts of the manufacturer ... to
serve [the market], directly or indirectly .... ,,7 It would have
helped had the Court provided more guidance as to what consti-
tuted an indirect effort to serve the market, and as to how much
effort amounts to deliberate exploitation or purposeful avail-
ment sufficient to confer jurisdiction. It would be tempting to
conclude that the sale of a product with the expectation that it
would be consumed in a foreign market, but without any direct
effort to serve that market, is what the Court meant by an indi-
rect effort to serve the market. This would harmonize the two
inconsistent quotations above, and would be consistent with ear-
lier law and with common sense. But there is no textual reason
to suppose that this is what the Court intended. And when the
Court came to write the various opinions in Asahi,7 s there was
disagreement as to what the "purposeful availment - effort to
serve the market" theory of World-Wide actually meant.
What does the Court say about the importance of financial
benefit derived by a defendant? Did the Court mean to imply
that even if World-Wide did a thriving business in Oklahoma, as
a result of its efforts, that the Robinsons could not have secured
jurisdiction over World-Wide if their purchase of their Audi had
been unrelated to World-Wide's promotional activities in
Oklahoma, regardless of the magnitude of financial benefit
World-Wide derived from its activities? Interestingly, the Court
remarks that "[t]here is no evidence of record that any
automobiles distributed by World-Wide are sold to retail cus-
tomers outside this tristate area [New York, New Jersey and
Connecticut]. ' 9 Would it have made a difference if there had
been evidence of record of sales by World-Wide outside of the
77. Id. at 297 (emphasis added); see also supra note 64 and accompanying text.
79. 444 U.S. at 298. Specifically, the Court states that:
The Oklahoma Supreme Court... found (that petitioners earn substantial reve-
nue from goods used in Oklahoma], drawing the inference that because one auto-
mobile sold by petitioners has been used in Oklahoma, others might have been
used there also. While this inference seems less than compelling on the facts of the
1989] AFTER ASAHI
tri-state area, and in particular, in Oklahoma? Upon careful

reading, the Court resolved this issue. Although the Court re-
marked that the Oklahoma court merely inferred that World-
Wide earned substantial revenue from goods used in Oklahoma,
and while the Court characterized this inference as "less than
compelling,"8 0 it is crucial to an understanding of this case to
realize that the Supreme Court accepts, for the sake of argu-
ment, the conclusion that World-Wide does earn substantial rev-
enues from activities in Oklahoma, and that the Court rejects
jurisdiction nevertheless. It would be a serious mistake to inter-
pret this case as holding that one reason why jurisdiction was
lacking was that the defendant had not been shown to derive
financial benefit from its activities in the state of Oklahoma. On
the contrary, the Court explicitly accepts the finding of the
lower court that World-Wide did derive substantial financial
benefits,8 1 and the Court's analysis assumed the conclusion as a
material fact upon which its analysis is based. 2 The Court also
appeared to accept, for the sake of argument, the factual conten-
tion that World-Wide derives benefit from "an extensive chain
of Volkswagen service centers throughout the country, including
some in Oklahoma, '18 and concluded that, even upon these as-
sumptions, there were not sufficient contacts to support
jurisdiction. "
One wonders whether the Court meant to downplay finan-
cial benefit to the defendant as a predicate for jurisdiction to the
extent that it did. How would the Court deal with the unknown
and unsolicited financial benefit situation, where the benefit is
considerable? Suppose that World-Wide made a large sale in
New York of many vehicles to a single purchaser. Unknown to
World-Wide, the purchaser was a fleet owner from Oklahoma
where the vehicles were intended to be used, and where in fact
instant case, we need not question the court's factual findings in order to reject
its reasoning.
Id. (citation omitted) (emphasis added).
80. Id.
81. Id.
82. Cf. Goodhart, Determining the Ratio Decidendi of a Case, 40 YALE L.J. 161
(1930), reprinted in G. CHRISTIE, JURISPRUDENCE (1973).
83. 444 U.S. at 298-99.
84. Id. at 299.
19
they were used. Suppose that the purchaser was injured in an

accident while driving one of these vehicles in Oklahoma. In this
hypothetical situation, the seller would have derived substantial
benefit from sales of goods for use in Oklahoma, but would
neither have solicited sales in Oklahoma, nor would have had
knowledge at the time of the sale that the goods were purchased
for use in that state. In short, World-Wide would have done
nothing to satisfy the purposeful availment standard. The Court
appears committed to rejecting jurisdiction on the grounds that
the defendant had not made a deliberate, knowing effort to ex-
ploit the market, and that the connection with the forum
stemmed from the unilateral activity of the purchaser.
The Robinsons argued that the financial benefits acknowl-
edged by the Court to have flowed to World-Wide were suffi-
cient to support jurisdiction, but the Court made the following
crucial, but unsatisfactory response: "[F]inancial benefits accru-
ing to the defendant from a collateral relation to the forum
State will not support jurisdiction if they do not stem from a
constitutionally cognizable contact with that State." 85 But what
does the Court mean by a "collateral relationship," and by "fi-
nancial benefit accruing from a collateral relationship," and why
does the Court deprecate such a benefit in its jurisdictional anal-
ysis? Contrary to the Court's implications, the law has always
been that a financial benefit accruing to a defendant from activi-
ties within a jurisdiction is in itself a constitutionally cognizable
contact tending to support jurisdiction, regardless of the type of
relationship from which that benefit accrues." 86 In the instant
case, the entry of defendant's product into Oklahoma where it
caused injury, combined with the reasonable foreseeability that
it might do so, is itself a contact relevant to the issue of jurisdic-
tion. In effect, when the Court referred to financial benefits ac-
cruing to defendant from a collateral relationship, the Court
leapt to the conclusion that these financial benefits achieved by
the defendant do not support jurisdiction. The Court is using
85. Id.
86. See, e.g., Buckeye Boiler Co. v. Superior Court, 71 Cal. 2d 893, 458 P.2d 57, 80
Cal. Rptr. 113 (1969); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d
432, 176 N.E.2d 761 (1961). See also Gelfand, A Dissenting View of Asahi Metal Indus-
try Co., Ltd. v. Superior Court, 39 S.C.L. REv. 873, 881 n.37 (1988).
19891 AFTER ASAHI
the label "collateral relationship" as a substitute for an argu-

ment for that conclusion.
The result in this case is deplorable, and the arguments of
the majority are even more so. By emphasizing the intent of de-
fendant, as analyzed by the purposeful availment theory, and by
downplaying the importance of the financial benefits to defend-
ant, the Court set forth a doctrine capable of two interpreta-
tions, both of which are unsatisfactory as a basis for analyzing
personal jurisdiction. Under the first interpretation, intents are
voluntary choices or declarations; under the second interpreta-
tion, the term "intent" is used not in the sense of an actual psy-
chological purpose or objective, but rather, as a shorthand for
the objective and discernable manifestations of intent.8 7 The
first interpretation gives the potential defendant tremendous
unilateral control over the fora in which it will be subject to per-
sonal jurisdiction, since the Court's analysis implies that the ob-
jective nature of the relationship between defendant and forum
does not matter so much as the design and plan of the defend-
ant as to where it will arrange its affairs to permit itself to be
sued. 88 On this interpretation, the potential defendant may insu-
late itself from suit merely by limiting its promotional and dis-
tributional efforts in a jurisdiction, and by disavowing any intent
to avail itself of that market, regardless of its actual activities in
that jurisdiction, and the actual benefits it reaps.8 9
But due process does not go so far as to require that a liti-
gant have the power to determine where it will or will not permit
itself to be sued. The Court reiterated, reasonably enough, that
the unilateral activity of a plaintiff is not sufficient to subject a
defendant to jurisdiction," but the Court wrongly concluded
that the only alternative to basing jurisdiction solely on the
plantiff's unilateral activity is to base jurisdiction upon the pur-
87. These are not two interpretations which the Court distinguishes, setting them
forth clearly in two different places. On the contrary, there is a continual equivocation on
the term "intent" throughout the opinion.
88. See 444 U.S. at 297.
89. See infra notes 209-71 and accompanying text for a discussion of cases which
interpret the purposeful availment standard so as to give defendant excessive control
over the jurisdictions in which it will be amenable to suit.
90. 444 U.S. at 298.
21
poseful, intentional activity of the defendant. 1 But this is not

the only alternative. One may instead base jurisdiction upon the
real relationships between defendant and forum sufficient to
constitute actual or metaphorical presence in the forum. The
concept of a real relationship obviously requires analysis by the
courts, just as International Shoe anticipated. The presence of
an incorporeal business entity (which exists, after all, for the
purpose of financial gain) is best measured by the extent of the
financial benefit it derives from its activities in the forum, com-
bined, perhaps, with some degree of knowledge, expectation, or
reasonable foreseeablity of such benefit.
The concept of "intent" or "purpose" is not, and cannot be,
an adequate starting point for an analysis of the concept of
"presence." The fundamental error of the entire purposeful
availment doctrine is to suppose that intent is an adequate
starting point for analysis. International Shoe teaches that ju-
risdiction is based on fairness to defendant;9 2 fairness is based
upon presence; and presence, with some qualifications, is based
upon contacts. Intentions, however, are not contacts. Where I
am does not depend upon where I intend to be. A defendant no
more disappears from a jurisdiction by declaring an intention
not to be there than an ostrich disappears when it buries its
head in the sand. Something has gone seriously wrong with the
Court's analysis when it allows a defendant to determine unilat-
erally, simply by declaring its intentions, whether it will submit
to jurisdiction.
At several places in the opinion, in order to discern World-
Wide's intent, the Court looked to such objective evidence as the
defendant's promotional activities and distributional organiza-
tion within the forum state. At these places the Court focused
not on intent in the first sense, but rather on objective contacts
of a very specific and limited sort. By examining these arbitrar-
ily limited restricted contacts, the Court inferred the defend-
ant's subjective intent. The Court's reason for its conclusion was
that "petitioners have no 'contacts, ties, or relations' with the
State of Oklahoma. '9 3 This factual conclusion is demonstrably
91. See id. at 297-99.

92. See supra notes 7-32 and accompanying text.
93. 444 U.S. at 299 (quoting International Shoe, 326 U.S. 310, 319 (1945)).
19891 AFTER ASAHI
false unless one arbitrarily limits contacts to exclude financial

benefits derived from the injection of an intrinsically mobile
product into the stream of commerce, where it is not only fore-
seeable, but overwhelmingly probable that the product will mi-
grate to and cause injury in a foreign jurisdiction. The Court
gave no argument for limiting the definition of contact, other
than the tendentious label "collateral relationship." 94 Professor
95
Hazard's phrase "arbitrary particularization" was prophetic.
The Court gave little more than an arbitrary set of examples of
contacts it considers relevant to purposeful availment.
The Court's use of the intent and purposeful availment lan-
guage is thus doubly unsatisfactory. If the intent and purposeful
availment language refers to the defendant's actual subjective
intentions, then this language does not adequately analyze the
legal standards of fairness and presence. On the other hand, if
the Court meant the intent and purposeful availment language
to refer indirectly to a specific set of objective factors, then the
listing of these factors fails to provide clear general standards,
and the limited list of factors, therefore, fails to provide a test
which satisfies the demands of fairness.
b. Justice Brennan's Dissent

Justice Brennan's dissenting opinion provides an interesting
contrast to the majority's point of view. His view is closer to a
fairness-centered conception of jurisdiction, but he also stresses
the "interest of the forum state," a consideration bearing even
less relation to fairness to defendant than an arbitrary list of
contacts.96 Thus, he referred disapprovingly to the Court's tight
focus "on the existence of contacts between the forum and the
defendant, ' 97 and he stated that the Court accorded too little
weight to such other factors as the forum state's interest in the
case and the actual inconvenience to defendant. 9
The majority referred to these other factors, 99 notwithstand-
94. Id.
95. See supra note 12.
96. 444 U.S. at 300 (Brennan, J., dissenting).
97. Id. at 299 (Brennan, J., dissenting).
98. Id. at 300-01 (Brennan, J., dissenting).
99. Id. at 292. The Court stated:
23
ing Justice Brennan's conclusion that the majority did not pay
sufficient attention to them. Brennan pointed out that the Inter-
national Shoe Court focused on fairness and reasonableness and
declined to establish a mechanical test based on quantum of
contacts. He states that "contacts [are but] ... one way of giving
content to the determination of fairness and reasonableness.' 100
This conclusion is correct and is faithful to the original language
of InternationalShoe which clearly tied the contacts analysis to
the constitutional goal of fairness. 1 1 Even if one were to elimi-
nate Justice Brennan's references to forum-state interests, he
correctly concluded that the majority, denying jurisdiction, fo-
cused too restrictively and insensitively on a narrow list of de-
fendant's forum contacts. He argued persuasively that the con-
tacts with defendant are sufficient for jurisdiction. 102
The focal point of the disagreement between Justice Bren-
nan and the majority, is captured in the following words of
Brennan's opinion: "Surely International Shoe contemplated
that the significance of the contacts necessary to support juris-
diction would diminish if some other consideration helped estab-
lish that jurisdiction would be fair and reasonable. The interests
of the State and other parties in proceeding with the case in a
particular forum are such considerations.' 1 3 But Justice Bren-
nan gives no explanation of why International Shoe "surely"
contemplated these other considerations. The only "other con-
sideration" the Court mentioned was convenience to
defendant.1 04
The notions of "plaintiff's interest" and "forum state inter-
est" are often raised together (as in Brennan's dissent) as if the
analysis of their relevance to jurisdiction raised essentially simi-
[Tihe burden on the defendant, while always a primary concern, will, in an

appropriate case be considered in the light of other relevant factors, including the
forum State's interest in adjudicating the dispute; the plaintiff's interest in ob-
taining convenient and effective relief... ; the interstate judicial system's interest
in obtaining the most efficient resolution of controversies; and the shared interest
of the several States in furthering fundamental substantive social policies.
Id. (citations omitted).
101. International Shoe, 326 U.S. 310, 319 (1945).
102. 444 U.S. at 312-13 (Brennan, J., dissenting).
104. See supra notes 7-32 and accompanying text.
1989] AFTER ASAHI
lar issues. But in fact, the analysis is very different. Plaintiff's

interest ought not, and cannot, be discounted entirely. From the
point of view of a potential defendant, the most troublesome as-
pect of Brennan's position is his contention that the "signifi-
cance of [defendant's forum] . . . contacts ... would diminish if
some other consideration helped establish that jurisdiction
would be fair .... ,o Focusing solely on plaintiff's interest as
one of the other considerations, Brennan contended that juris-
diction may be asserted over defendant on the basis of objec-
tively smaller contacts if the plaintiff has a strong interest in
asserting jurisdiction." 6 But this is not likely to please the de-
fendant. From the defendant's point of view, the plaintiff's pos-
session of an interest does not change the weight and magnitude
of defendant's contacts with the forum. The defendant will be
unimpressed by the argument that the court may assert jurisdic-
tion on a showing of lesser contacts than would ordinarily be
necessary, merely because plaintiff has an especially strong in-
terest in its chosen forum. This is all the more true inasmuch as
many of the factors which give the plaintiff a greater interest in
the forum (e.g. substantive or procedural law favorable to plain-
tiff) will be the same factors which disincline the defendant to
litigate in that forum and motivate the defendant to resist juris-
diction aggressively.
But a strong case could be made that the jurisdictional
standard of fairness to defendant necessarily and inevitably im-
plicates considerations of fairness to the plaintiff. The usual sit-
uation where an issue of personal jurisdiction arises is where a
plaintiff is attempting to establish jurisdiction over defendant,
and defendant resists. In other words, plaintiff and defendant
have contradictory interests which cannot both be satisfied and
105. Id.
106. Justice Brennan made this point explicitly in Burger King v. Rudzewicz, 471
U.S. 462 (1985).
Thus courts in "appropriate case[s]" may evaluate "the burden on the defendant,
...the plaintiff's interest in obtaining convenient and effective relief, . . . the
interstate judicial system's interest in obtaining the most efficient resolution of
controversies, [and] . . . the shared interest of the several States in furthering
fundamental substantive social policies." These considerations sometimes serve to
establish the reasonableness of jurisdiction upon a lesser showing of minimum
contacts than would otherwise be required."
Id. at 477. (quoting World-Wide Volkswagen, 444 U.S. at 292).
25
which generally cannot be compromised or adjusted. If a defend-

ant prevails in a jurisdictional defense, the result may be great
inconvenience and expense to the plaintiff, just as the plaintiff's
chosen forum may cause inconvenience and expense to the de-
fendant. Assuming that my interest necessarily conflicts with
yours, and that our interests should be given the same weight
and dignity, then the question of what is fair to me cannot be
logically resolved without considering what is fair to you. It is
built into the notion of fairness that it may be fair to provide
one person with a benefit if the interests of another are only
slightly impaired. Thus, Justice Brennan's view as to the rela-
tion between the interests of defendant and plaintiff is not only
correct, but is required by the logic of the fairness standard.
2. Burger King Corp. v. Rudzewicz
In Burger King Corp. v. Rudzewicz,10 7 Justice Brennan had

occasion to write a majority opinion finding sufficient contacts
for jurisdiction in a contract context. Rudzewicz, a resident of
Michigan, and his partner, MacShara, negotiated with Burger
King, a Florida corporation, to enter into a franchise agreement
for a Burger King restaurant in Drayton Plains, Michigan.1" 8
Rudzewicz negotiated with both the Burger King headquarters
in Miami, Florida, and with the local Michigan Burger King rep-
resentative.10 9 "'The only face-to-face or even oral contact
Rudzewicz had with Burger King throughout months of pro-
tracted negotiations was with representatives of the Michigan
office.' ,,0'These negotiations eventually culminated in a writ-
ten agreement which Rudzewicz entered into with "some misgiv-
ings," after obtaining "limited concessions."" ' The agreement
obligated Rudzewicz personally for payments exceeding one mil-
lion dollars over a twenty year period."' When Rudzewicz fell
behind in his payments under the agreement, Burger King first
negotiated, and then brought suit in the United States District
107. 471 U.S. 462 (1985).

108. Id. at 466.
109. Id. at 467.
110. Id. at 488 (Stevens, J., dissenting) (citation omitted).
111. Id. at 467.
112. Id.
19891 AFTER ASAHI
Court for the Southern District of Florida.11 3 After the trial

court awarded both damages and injunctive relief, the Eleventh
Circuit reversed on the grounds that the exercise of personal ju-
114
risdiction over Rudzewicz was unfair.
A six to two majority " 5 of the Supreme Court reversed and
upheld jurisdiction notwithstanding a persuasive dissent by Jus-
tice Stevens. " 6 The dissent pointed out that Rudzewicz sold his
products in a local market, with no reason to think that they
would ever be delivered or consumed in Florida. " 7 His business
was intrinsically and exclusively local.118 He never went to Flor-
120
ida 19 although his partner attended a training session there.
The franchise relationship typically involves parties with great
disparity in economic power, and is "fraught with potential for
financial surprise.'' The revenues of a local business, and its
limited geographical scope do not prepare the franchisee for dis-
1 22
tant litigation.
Nevertheless, the majority concluded that the agreement
between the parties amounted to a continuing relationship, en-
tered into voluntarily by defendant, which justified the assertion
of jurisdiction. 2 The Court emphasized that the mere existence
of a contract does not in itself assure sufficient contacts for juris-
diction. Instead, jurisdiction is predicated upon the total, ex-
tended business relationship, comprising negotiations, agree-
ment, and contemplated future dealings.12 4 Thus, the Court
stressed that Rudzewicz "deliberately 'reach[ed] out beyond'
Michigan," and sought the "manifold benefits that would derive
from affiliation with a nationwide organization.' 2 The Court
113. Id. at 468.

114. Id. at 469-70.
115. Justice Powell did not participate.
116. Justice White joined Justice Stevens in endorsing the opinion of the Eleventh
Circuit.
117. 471 U.S. 462, 487 (1985) (Stevens, J., dissenting).
118. Id. (Stevens, J., dissenting).
119. Id. at 488 (Stevens, J., dissenting).
120. Id. at 466.
121. Id. at 489 (Stevens, J., dissenting) (quoting Burger King Corp. v. McShara, 724
F.2d 1505, 1512 (1984)).
122. Id. at 489 (Stevens, J., dissenting).
123. Id. at 479-80.
124. Id. at 478-79.
125. Id. at 479-80 (quoting Travelers Health Assoc. v. Virginia, 339 U.S. 643, 647
27
noted that the Burger King agreement stated that operations

would be supervised and directed from Miami, that notices and
payments were to be sent there, and that disputes would be gov-
12 6
erned by Florida law.
This case underscores that there is no obvious answer to the
question of when one should "reasonably anticipate being haled
into court.1 1 7 World-Wide and Burger King taken together tell
us that when a businessperson negotiates to operate a local res-
taurant affiliated with a national chain, where the agreement be-
tween the parties is drafted by the national chain for its own
benefit and protection containing boilerplate provisions regulat-
ing the relationship between the parties, and where these provi-
sions are offered on a "take-it-or-leave-it" basis, then the local
businessperson should reasonably anticipate being haled to a
distant forum.1 28 On the other hand, a distributor of a product
whose very nature is to have extended, far-removed effects
should not reasonably anticipate being haled into court in a ju-
risdiction where the product foreseeably causes injury even
though the distributor by its direct efforts serves a broad geo-
graphical range extending across state boundaries. But there is
no obvious reason why the one anticipation is more reasonable
than the other. While it is impossible to argue conclusively that
Burger King was wrongly decided, the juxtaposition of these two
cases illustrates the futility of an appeal to reasonable expecta-
tion of being haled into court as a standard for determining
jurisdiction.
The most obvious difference between the two cases is that
in World-Wide, the plaintiff was the ultimate consumer - the
"lowest" end of the distribution chain - whereas in Burger
King, the plaintiff was the manufacturer-franchisor, occupying
(1950)).
126. Id. at 480.
127. See supra note 69 and accompanying text.
128. 471 U.S. 462. The Court agreed with the court of appeals dissent and argued
that the defendant purposefully availed itself of the benefits and protections of Florida
law by entering into an agreement providing that Florida law should govern disputes,
and that such agreement amounts to a contract which supports the finding of jurisdic-
tion. Id. at 480. But this disingenuous argument, suggesting that Rudzewicz reached out
eagerly for the protective umbrella of Florida law, ignores the reality that the choice of
law provision was inserted into the agreement by Burger King, for Burger King's benefit,
and that it in no way reflected a choice or interest of Rudzewicz.
1989] AFTER ASAHI
the opposite end of the chain. In both cases, the party who lost
was presumably the party least able to withstand the burdens of
the loss. But the Court was more concerned with the nature of
the underlying relationships between retailer and customer, on
the one hand, and manufacturer and retailer on the other. Re-
tailers have many customers. Transactions with customers hap-
pen on one discrete occasion with no ongoing regulation and
control, and customers disperse themselves widely and unpre-
dictably after the sale. The World-Wide Court was concerned
with protecting the seller from the vexation of defending multi-
ple lawsuits in widely separated fora. Conversely, the manufac-
turer and retailer have an ongoing, regulated contractual rela-
tionship, and this was the factor on which the Burger King
12 9
decision was ultimately based.
Notwithstanding the harsh result to the defendant, the
Court in Burger King demonstrated some sympathy with the
small consumer by agreeing with the court of appeals that to
allow jurisdiction here might be perceived as an endorsement of
the exercise of jurisdiction over (and the award of default judg-
ments against) all out-of-state consumers and franchisees owing
small debts. 130 The Court, therefore, emphasized that each case
must be weighed on its own facts and that Burger King did not
imply that jurisdiction could be exercised where a contractual
agreement had been secured by "'fraud, undue influence or
overweening bargaining power,' "Is1 or where the exercise of ju-
risdiction would be " 'so gravely difficult and inconvenient' " to
the defendant as to effectively make it impossible for the de-
fendant to litigate."' 2 The Supreme Court has thus clearly en-
dorsed the view, in carefully considered dictum, that the circum-
stances and financial means of a particular defendant are
relevant in determining when the exercise of jurisdiction over
him is so inconvenient as to be unfair under the fourteenth
amendment.
129. For a recent case discussing and applying the Burger King standard, see Corpo-
rate Inv. Business Brokers v. Melcher, 824 F.2d 786, 789 (9th Cir. 1987).
130. Burger King, 471 U.S. at 485-86.
131. Id. at 486 (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972)).
132. Id. (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. at 18).
29
3. Keeton v. Hustler Magazine

The Supreme Court in Keeton v. Hustler Magazine"' re-
cently addressed the relevance of the relation between plaintiff,
forum, and litigation in jurisdictional analysis. Plaintiff Kathy
Keeton, a New York resident, brought a libel action against
magazine publisher, Hustler magazine, and others in the United
States District Court for the District of New Hampshire."' De-
fendant Hustler was an Ohio corporation with its principal place
of business in California. 135 Defendant's only connection with
the state of New Hampshire consisted of the sale there of 10,000
to 15,000 copies a month of its nationally published and circu-
lated magazine." 6 The circulation of defendant's magazine in
New Hampshire amounted to less than one percent of its total
United States circulation. 37
The district court explicitly found that the defendant's con-
duct was "purposefully directed at New Hampshire and inevita-
bly affected persons in the state,"' 3 8 and concluded, in effect,
that the "purposeful availment" test of World-Wide for mini-
mum contacts was satisfied." 9 Nevertheless, the district court
held that under the fourteenth amendment the assertion of ju-
risdiction would be unfair and dismissed plaintiff's suit. "
The First Circuit affirmed the dismissal of the plaintiff's
complaint and identified three overlapping respects in which the
case was out of the ordinary. First, New Hampshire had the
longest applicable statute of limitations in the country, and, in
fact, was the only jurisdiction in which plaintiff's action would
not have been time-barred.' Second, because of the applicable
single-publication rule, the plaintiff was seeking damages for in-
133. 465 U.S. 700 (1984).

134. Id. at 772.
135. Id.
136. Id.
137. Keeton v. Hustler Magazine, 682 F.2d 33, 33 (lst Cir. 1982), rev'd, 465 U.S. 700
(1984).
138. 465 U.S. at 774.
139. Id.
140. Id. at 772.
141. 682 F.2d at 33. Plaintiff had originally brought suit for libel and invasion of
privacy in Ohio state court, but both claims had been dismissed as time-barred by the
application of the Ohio Statute of Limitations to the libel claim and the New York Stat-
ute to the invasion of privacy claim.
1989] AFTER ASAHI
juries suffered throughout the entire country, the major portion

of which could not be attributed to the defendant's contacts
with New Hampshire. " 2 Third, the plaintiffs contacts with New
Hampshire were less than minimal and insufficient to justify an
assertion of personal jurisdiction in a libel action. "
The court of appeals concluded that since most of the dam-
ages plaintiff sought arose from injury taking place outside of
New Hampshire, and since New Hampshire had no special inter-
est in protecting a nonresident from such out-of-state injury, the
assertion of jurisdiction would be unfair, or, in the colorful
words of the court of appeals, "the New Hampshire tail is too
small to wag so large an out-of-state dog." 4
In reversing the court of appeals and holding that the New
Hampshire court had jurisdiction, the Supreme Court accepted
the district court's finding that defendant Hustler had purpose-
fully directed its conduct at New Hampshire, and agreed that it
is "unquestionable" that "ordinarily" this contact would be suf-
ficient to support jurisdiction."" But the Supreme Court did not
share the "concerns" of the court of appeals which led that court
to reject jurisdiction. 1" The defendant had persuaded the court
of appeals that the plaintiff's obvious forum-shopping motive in
selecting the New Hampshire forum was a basis for holding the
142. Id. at 35. The single-publication rule, as summarized by the Court, provides
that with respect to a single publication, only one action for damages may be main-
tained, that damages for injuries suffered in all jurisdictions may be recovered in that
action, and that the judgment bars further actions for damages in all other jurisdictions.
143. Id. at 34-35. The Supreme Court summarized this aspect of the holding as fol-
lows: "[plaintiff's] lack of contacts with New Hampshire rendered the state's interest in
redressing the tort of libel to [plaintiff] too attenuated for an assertion of personal juris-
diction over [defendant]." 465 U.S. at 773. This quotation illustrates the imprecision
which infects court discussions of these topics. The words quoted suggest that the plain-
tiff's lack of contacts is not directly relevant to the jurisdictional analysis, but that this
factor matters only derivatively - only insofar as it relates to the analysis of the state's
interest in redressing the plaintiff's grievance. But elsewhere, the Supreme Court speaks
as if the magnitude of the plaintiff's contacts may be independently relevant to the juris-
dictional analysis. Nowhere in its opinion did the court of appeals state that it was con-
sidering the plaintiff's contacts only to the extent that they related to the forum state's
interest in the litigation, as the Supreme Court's summary suggests.
144. 682 F.2d at 36.
145. 465 U.S. at 774.
146. Id. at 775. See supra notes 141-43 and accompanying text for the three con-
cerns identified by the court of appeals.
31
assertion of jurisdiction to be unfair. 14 7 The court of appeals had

argued that states adopt statutes of limitations to protect de-
fendants from delayed lawsuits and to penalize plaintiffs who
sleep on their rights.' 48 That court concluded that to allow Kee-
ton to sue in New Hampshire for injury suffered in jurisdictions
where the statute of limitations on her149claim had run would be
to thwart and frustrate these policies.
In response, the Supreme Court argued persuasively that
the question of the applicability and effect of the New Hamp-
shire statute of limitations was a question which arose only after
jurisdiction had been established and was not related to that in-
quiry.150 It is only sound litigation strategy for a plaintiff to se-
lect a forum with favorable substantive and procedural laws.
The fact that a forum is the sole jurisdiction with law favorable
to the plaintiff could arguably cut either way. The defendant
would argue that this renders the assertion of jurisdiction unfair.
On behalf of the plaintiff, one could argue that the plaintiff's
interest in the forum is one factor entering into the jurisdic-
tional analysis; therefore, plaintiff's great interest in this forum
and the absence of any alternative forum is a factor tending to
favor jurisdiction. The sounder view, and the view adopted by
the Supreme Court, is that the plaintiff will presumably choose
its own forum based upon a variety of strategic considerations,
including any advantage it expects to obtain in the application
of substantive or procedural law, and that such strategic consid-
erations have nothing to do with the presence or absence of ju-
147. 682 F.2d at 35.

148. Id. at 35-36.
149. Id. at 36. It is not clear what this argument, dealing with the thwarting of other
states' policies, has to do with New Hampshire's interests. This argument appears to be a
throwback to federalism-based concerns, or to some vague notion of the general integrity
of the several state's court systems of the several states. This argument implies that it
would somehow be an affront to other states if New Hampshire allowed plaintiff to re-
cover for injuries attributable to the defendant's activities in other states, where those
states would not have permitted recovery. Certainly, this argument would have no force
against the power of the New Hampshire court to assert jurisdiction over the defendant
for recovery of the plaintiff's damages attributable to the defendant's sales in that state.
The Supreme Court's analysis of the single-publication rule supports the conclusion that
the plaintiff's claims for other damages should be litigated in the same forum. See supra
notes 141-43 and accompanying text.
150. 465 U.S. at 778.
1989] AFTER ASAHI
risdiction.' 51 One might even agree that the plaintiff has been
unwise in waiting to sue until the statute of limitations has ex-
pired in all other jurisdictions, but this failure is not the kind of
misdeed sufficient to bear on jurisdictional analysis.
The most interesting issue in Keeton was the effect on the
jurisdictional analysis of the single-publication rule and the fact
that the plaintiff sued primarily for injury suffered outside the
forum state. Again, this factor illustrates the uncertainty of ju-
risdictional doctrine, since the court of appeals and the Supreme
Court took the same facts, described them similarly, and deter-
mined that they cut in opposite directions insofar as jurisdiction
is concerned. The court of appeals concluded that, because the
applicable single-publication rule had the consequence that the
plaintiff was suing primarily for injury suffered outside the fo-
rum state, this attenuated New Hampshire's interest in the ac-
tion and made it unfair to allow the plaintiff to proceed against
the defendant in New Hampshire. 52 The Supreme Court, on the
other hand, argued that since the purpose of the single-publica-
tion rule is that all injuries suffered as a result of an alleged def-
amation must be sued for and all damages collected in one ac-
tion, it follows that states adopting this rule, including New
Hampshire, have an interest in cooperating with each other to
assure that a forum is available to redress injury sustained as a
result of a defamation both within and without the forum
state.1 53 In other words, the Supreme Court concluded that the
single-publication rule generated an interest in the forum state
which tended to support, rather than militate against, the asser-
154
tion of jurisdiction.
III. Asahi and Beyond

A. Asahi Metal Industry Co. v. Superior Court of California
1. Minimum Contacts
The Supreme Court's most recent major pronouncement on
personal jurisdiction, Asahi Metal Industry Co. v. Superior
151. Id.
152. 682 F.2d at 35.
153. 465 U.S. at 777-78.
154. Id.
33
Court of California,1"' reexamines many of the issues we have

encountered so far. In Asahi, Gary Zurcher, the original plain-
tiff, was seriously injured when the motorcycle he was driving
was involved in an accident with a truck.156 The accident oc-
curred because of an alleged defect in the tube, sealant, and rear
tire of the motorcycle. 157 Zurcher brought suit in Superior Court
of the State of California for the County of Solano, against,
among others, the Cheng Shin Rubber Industrial Co. (Cheng
Shin), the Taiwanese manufacturer of the tube. 158 Cheng Shin
filed a cross-complaint for indemnification against its codefend-
ants, also naming Asahi Metal Industry Co. (Asahi), a Japanese
corporation and the manufacturer of the tube's valve assem-
bly. 59 Asahi moved to quash Cheng Shin's service of summons,
arguing that the state's exercise of jurisdiction over it would be
unconstitutional. 6 0 The facts showed that Asahi shipped tire
valve assemblies from Japan to Cheng Shin in Taiwan for use in
finished tire tubes. 6 ' As the Court recited,
Asahi's sales to Cheng Shin took place in Taiwan. The shipments
from Asahi to Cheng Shin were sent from Japan to Taiwan.
Cheng Shin bought and incorporated into its tire tubes 150,000
Asahi valve assemblies in 1978; 500,000 in 1979; 500,000 in 1980;
100,000 in 1981; and 100,000 in 1982. Sales to Cheng Shin ac-
counted for 1.24 percent of Asahi's income in 1981, and 0.44 per-
cent in 1982. Cheng Shin alleged that approximately 20 percent
of its sales in the United States are in California. Cheng Shin
purchases valve assemblies from other suppliers as well, and sells
finished tubes throughout the world.16"
After the California superior court denied Asahi's motion
and upheld jurisdiction, the Court of Appeal of the State of Cal-
155. 480 U.S. 102 (1987).

156. Id. at 105.
157. Id. at 106.
158. Id. at 105-06.
159. Id. at 106. Because of a vagary of California procedure, the complaint against
Asahi is styled throughout the case as a "cross-complaint." The claim against Asahi is
not a cross-claim since Asahi was not an original defendant. Asahi could be described as
an additional defendant on a cross-claim, but functionally, Cheng Shin's claim against
Asahi was a third-party (impleader) claim for indemnification.
160. Id.
161. Id.
162. Id.
1989] AFTER ASAHI
ifornia reversed and denied jurisdiction on the ground that the

mere foreseeability that tires incorporating Asahi's valve assem-
blies would be marketed in California was an insufficient contact
to uphold jurisdiction. 163 The Supreme Court of California ac-
knowledged that Asahi made no direct sales in California and
solicited no business there. Nevertheless, that court reversed
and upheld jurisdiction on the basis that Asahi performed the
intentional act of injecting its products into the stream of com-
merce, knew that some of its valve assemblies sold to Cheng
Shin would be sold in California, and benefited indirectly from
64
sales in California.
The United States Supreme Court reversed and denied ju-
risdiction. 65 Although the judgment of reversal was concurred in
unanimously, the three different opinions reveal wide analytical
and philosophical disagreements. The plurality opinion, written
by Justice O'Connor, contains two analytical sections, Parts II-
A ' and II-B.167 Part II-A discusses the nature of the contacts
required for jurisdiction and analyzed the stream of commerce
and purposeful availment theories set forth in World-Wide
Volkswagen Corp. v. Woodson"" and elsewhere. Part II-B dis-
cuss other factors besides contacts between defendant and fo-
rum, and analyzes their relevance to the jurisdictional issue.
Part II-A represents the opinion of a minority of the
Court.16 9 In this part, after asserting that the "constitutional
touchstone" of personal jurisdiction is "whether the defendant
purposefully established 'minimum contacts' in the forum
state,"' 70 the Court goes on to consider the correct interpretation
of the stream of commerce test17 1 as set forth in World- Wide.
The plurality rejected the view of the California Supreme Court
that the defendant's injection of a product into the stream of
163. Id. at 107-08.

164. Id. at 108.
165. Id.
166. Id. at 108-13.
167. Id. at 113-16.
168. 444 U.S. 286 (1980). See supra notes 56-106 and accompanying text.
169. Part II-A was joined by Chief Justice Rehnquist and Justices Powell and
Scalia.
170. Id. at 108-09 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474
(1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))).
171. Id. at 109.
35
commerce with the knowledge that the stream would "sweep the
product into the forum state" was a sufficient contact for juris-
diction. 172 The Court instead stated that in order to amount to a
minimum contact for jurisdictional purposes, the defendant
must perform some action "purposefully directed toward the fo-
rum State" and, further, that "[t]he placement of a product into
the stream of commerce, without more, is not an act of the de-
fendant purposefully directed toward the forum State. '17 The
Court suggested as examples of actions indicating purposeful in-
tent: "designing the product for the market in the forum State,
advertising in the forum State, establishing channels for provid-
ing regular advice to customers in the forum State, or marketing
the product through a distributor who has agreed to serve as the
'1 7 4
sales agent in the forum State.
A majority of the Court rejected the analysis and conclusion
of the plurality opinion with respect to the stream of commerce
theory and would not have reversed on that ground. Two other
opinions were written, one by Justice Brennan1 7 5 and the other
by Justice Stevens.
Justice Brennan rejected the plurality's interpretation of
the stream of commerce theory and of World-Wide.177 He con-
cluded that Asahi's commercial activities did amount to pur-
poseful availment, .and that Asahi did have minimum contacts
with the forum. 178 Absent other factors, these activities and con-
tacts would be sufficient to support jurisdiction. 7 9 Justice Bren-
nan argued that World-Wide did not control the instant case, as
the plurality had contended, but rather, he argued that World-
Wide had been careful to preserve the distinction between the
situation where a consumer had taken the product to the forum
state, as in World-Wide, and the situation where the product
reached the forum through a chain of distribution, as in the in-
172. Id. at 112.

173. Id. (emphasis omitted).
174. Id.
175. Id. at 116 (Brennan, J., concurring in part). Justice Brennan's opinion was
joined by Justices White, Marshall, and Blackmun.
176. Id. at 121 (Stevens, J., concurring in part). Justice Stevens' opinion was joined
by Justices White and Blackmun.
177. Id. at 116-17 (Brennan, J., concurring).
178. Id.
179. Id. at 116-21 (Brennan, J., concurring).
1989] AFTER ASAHI
stant case.1 80 Justice Brennan further admitted that he did not

see any constitutional significance to the distinction between the
situations where the product reaches the forum through the
chain of distribution, and where it is taken there by the foresee-
able act of the consumer." *Justice Brennan argued that World-
Wide stood only for the proposition that jurisdiction would be
rejected where the product arrived in the forum state through
the fortuitous circumstances of one isolated occurrence of con-
sumer use.1 8 Justice Brennan further argued that if a product
flows along a stream of commerce in a "regular and anticipated"
chain of distribution where the manufacturer is aware of this,
derives benefits from sales in the forum state, and "benefits
from the State's laws that regulate and facilitate commercial ac-
tivity," then no further purposeful activity is required to sup-
port jurisdiction.18 3 Notwithstanding these contacts which he
found to be sufficient, Justice Brennan concluded that the asser-
tion of jurisdiction would be unreasonable and unfair. 8 " Conse-
quently, he joined in the Court's judgment of reversal for the
reasons set forth in Part II-B of the plurality opinion, discussed
below.
Justice Stevens reached no conclusion at all with respect to
the stream of commerce theory,18 5 and the interpretation of
World-Wide. 88 But, he explicitly concluded that "[an examina-
tion of minimum contacts is not always necessary to determine
whether a state court's assertion of personal jurisdiction is con-
stitutional.' ' 8 7 On the contrary, he argued that we may conclude
directly, without an intervening analysis of contacts, that the as-
sertion of jurisdiction in this case would be unreasonable and
180. Id. at 120 (Brennan, J., concurring).

181. Id. at 120 n.3 (Brennan, J., concurring).
182. Id. Justice Brennan did not advocate that World-Wide be overruled. Rather,
he asserted that the plurality's interpretation of it amounted to an endorsement of "what
appears to be the minority view among Federal Courts of Appeals
. " See ..
id. at 117 n.1 (Brennan, J., concurring) for the extensive case citations
designed to document the conclusion that the plurality's opinion is a minority view.
185. Id. at 121.
186. Id. He did suggest, without concluding, that normally "a regular course of deal-
ing that results in deliveries of over 100,000 units annually over a period of several years
would constitute 'purposeful availment' ..... Id. at 122 (Stevens, J., concurring).
187. Id. at 121 (Stevens, J., concurring).
37
unfair, even if the defendant had met the plurality's purposeful

188
availment standard of contacts with the forum state.
In order to find the basis for the Court's agreement in the
result that the California court did not possess jurisdiction over
Asahi, we must look to the arguments in Part II-B of the plural-
ity opinion. This section considers arguments against the asser-
tion of jurisdiction other than the stream of commerce doctrine,
and the degree of contact between defendant and forum. Part
II-B was concurred in by the four members of the plurality plus
Justices Brennan, White, Marshall and Blackmun. From the
point of view of the plurality, Part II-B is cumulative and un-
necessary given the arguments of Part II-A; from the point of
view of the other four concurring Justices, Part II-B contains the
fundamental, sufficient arguments on which the denial of juris-
diction is based. Interestingly, the members of the plurality also
affirmed that the arguments in that section are sufficient in
themselves to support the denial of jurisdiction.'8 9
In Part II-B the Court concluded there were several factors
which justify the denial of jurisdiction over Asahi. First, the
Court asserted that the interest of the plaintiff in this forum is
slight. The Court pointed out that the transactions on which the
indemnification claim is based had little connection with the
State of California, and further, that the plaintiff for this claim,
Cheng Shin, "has not demonstrated that it is more convenient
for it to litigate... in California" than elsewhere. 90 This remark
is astonishing in its implications, suggesting, as it does that, in
order for the assertion of jurisdiction over defendant to be fair,
plaintiff bears the burden of demonstrating that it has chosen
the most convenient forum for itself. Second, the Court argued
that the forum State has little interest in the assertion of juris-
diction. Third, the Court pointed out that the burdens on the
188. Id. at 121, 122 (Stevens, J., concurring).

189. The Court writes: "A consideration of these [additional] factors in the present
case clearly reveals the unreasonableness of the assertion of jurisdiction over Asahi, even
apart from the question of the placement of goods in the stream of commerce." Id. at
114. The four Justices who concurred in both Parts IH-A and I-B of the plurality opinion
are therefore advancing the doctrine that jurisdiction may be denied if either (a) mini-
mum contacts between forum and defendant are not present, or (b) the assertion of ju-
risdiction would be unreasonable and unfair based upon an analysis of other factors enu-
merated in Part II-B.
190. Id. at 114.
1989] AFTER ASAHI
alien defendant would be great. Fourth, the Court argued that

the international context of this case, in which the substantive
interests of other nations are implicated, also militates against
the assertion of jurisdiction.' 1 The plurality opinion concludes
that given these factors, "the exercise of personal jurisdiction by
a California court over Asahi in this instance would be unreason-
9 2
able and unfair.'
Ultimately, it is the last two factors, both related to the in-
ternational setting of the case, which best explain and justify the
result. As has been set forth in a recent article,19 3 assertions of
jurisdiction over foreign defendants can affect United States for-
eign relations by offending foreign nations, creating the possibil-
ity of retaliatory actions by other nations, and, generally, by in-
volving individual states in foreign affairs to a constitutionally
impermissible degree. 194 Because of this special factual setting,
Asahi is not the best case from which to derive general legal
conclusions. As far as general legal doctrine is concerned, the
most interesting outcome of Asahi is the apparent acceptance by
a majority of the Supreme Court of Justice Brennan's view that
the injection of a product into the stream of commerce with the
knowledge that the product will make its way into the forum
state is sufficient for purposeful availment, and the rejection of
the World-Wide interpretation which would have required
something more. 19 The unusual distribution of opinions makes
191. See id. at 115.

192. Id. at 116.
193. See Born, Reflections on Judicial Jurisdiction in InternationalCases, 17 GA.
J. OF INT'L & CORP. L. 1 (1987). These and other issues relating to the assertion of juris-
diction over foreign defendants have been discussed by Professor Gary Born. He
presents an interesting argument that special jurisdictional rules and principles are ap-
propriately applied where a foreign defendant is involved.
194. See Newport Components, Inc. v. NEC Home Electronics, 671 F. Supp. 1525
(C.D. Cal. 1987), for a recent case interpreting Asahi as standing for the proposition that
"courts must apply a higher standard of review to the forum contacts of foreign defend-
ants than they do to the contacts of domestic defendants." Id. at 1532 n.7.
But in Mason v. F. LLI Luigi, 832 F.2d 383 (7th Cir. 1987), the court found jurisdic-
tion over a foreign defendant, distinguishing Asahi on the grounds that the interest of
the plaintiff and the forum state were substantial, and that defendant "purposefully
availed itself of the privilege of conducting activities within the forum state," id. at 386,
by sending its employee into the jurisdiction to demonstrate and set up the machine that
was the subject of the action. Id.
195. 444 U.S. at 295.
39
it difficult to classify this conclusion as either holding or dictum,

but this view is clearly expressed by four Justices and appears to
be shared by one other. Justice Brennan, in his opinion con-
curred in by three other Justices, wrote that the plurality would
require a plaintiff "to show '[a]dditional conduct' directed to-
ward the forum before finding the exercise of jurisdiction over
the defendant to be consistent with the Due Process Clause. I
see no need for such a showing, however." ' 8
I referred equivocally to the apparent acceptance by the
Court of the Brennan view. Justice Stevens becomes the tie-
breaker between the plurality, and the three Justices who joined
in Justice Brennan's opinion. Unfortunately, Justice Stevens'
position on this issue is not entirely certain. He makes the per-
ceptive suggestion that the distinction between " 'mere aware-
ness' that a [product] will find its way into the forum State and
'purposeful availment'" is not always clear.1 97 As discussed be-
low, Justice Stevens goes beyond the disagreement between the
two factions, and argues that the purposeful availment test need
not be satisfied in every case, but rather that a conclusion as to
fairness may sometimes be achieved without any conclusion as
to purposeful availment.' 98 In that sense, at least, Justice Ste-
vens does not require any additional conduct beyond placing a
product into the stream of commerce to find personal
jurisdiction.
One result of Asahi is to weaken the link between the mini-
mum contacts analysis and the conclusion that jurisdiction may
or may not be asserted. A majority of the Supreme Court reiter-
ated that a finding of minimum contacts between the defendant
and the forum is not sufficient for the assertion of personal juris-
diction by the forum. 9e The five justices who joined in the two
partial concurring opinions agreed that, even where minimum
contacts are present, jurisdiction need not be allowed.20 0 Justice
Stevens' opinion made this point explicitly,2 ' and Justice Bren-
196. 480 U.S. at 117 (citation omitted).

197. Id. at 122.
198. Id.
199. Id. at 116, 121-22 (the existence of minimum contacts is not sufficient for
jurisdiction).
200. Id.
201. Id. at 121-22.
1989] AFTER ASAHI
nan concluded that the California courts lacked jurisdiction not-

withstanding the existence of minimum contacts, even when
tested under the plurality's purposeful availment theory. 02
What does the Court hold the relation to be between the
minimum contacts analysis and the other factors which, in the
Court's view, are relevant to the inquiry into fairness? The en-
tire Court, with the exception of Justice Stevens, agreed that the
minimum contacts test, as analyzed by the purposeful availment
doctrine, is a threshold inquiry. A finding that this test is satis-
fied creates a prima facie showing that jurisdiction exists and
operates to shift the burden to the defendant to produce evi-
dence, related to fairness, to show why jurisdiction would be un-
fair. Has this analysis opened the door for a court to conclude
that it would be fair to a defendant, and reasonable in the cir-
cumstances present, for a court to assert jurisdiction even in the
absence of a threshold finding that minimum contacts exist?
Justice Stevens suggested this conclusion: "I see no reason in
this case for the Court to articulate 'purposeful direction' or any
other test as the nexus between an act of a defendant and the
20 3
forum State that is necessary to establish minimum contacts.
Justice Stevens stopped short of concluding that jurisdic-
tion may be asserted without engaging in the minimum contacts
analysis, and without a finding that such contacts exist. In fact,
his language implies that it remains necessary to establish some
form of minimum contacts. Rather, Stevens emphasized that it
is not necessary or possible to specify any particular formulation
by which the presence of such contacts may be determined. This
is consistent, of course, with the existence of rules of thumb, or
guidelines, based upon types of contacts, which in most cases
will point the way to a satisfactory result. This opinion is a clear
rejection of the view expressed by the plurality in the words:
"'[T]he constitutional touchstone' of the determination whether
an exercise of personal jurisdiction comports with due process
remains whether the defendant purposefully established mini-
mum contacts in the forum." ' "
202. Id. at 116.

203. Id. at 122.
204. Id. at 108-09 (quoting from Burger King, 471 U.S. 462 (1985)).
41
2. Forum State Interest
We are left with the inescapable fact that the Justices who
deny that minimum contacts are sufficient for jurisdiction do so
not to insist upon a conception of jurisdiction restricted to the
due process rights of defendant, but rather to defend the rele-
vance of "other factors," notably the interest of the forum state.
The forum state interest analysis is regarded by some as a mod-
ern, sophisticated, enlightened advancement in the law of per-
sonal jurisdiction. 20 5 But why should state interests be relevant
at all? One difficulty in assessing interest theories (whether
plaintiff's interest or forum-state interest) is the ambiguity of
the term "interest." "Interest" is in one sense the antonym of
"uninterested," and in another sense, the antonym of "disinter-
ested." That is, in one sense, interest refers to a psychological
inclination or desire, as when one has an interest in playing
rugby, and in another sense, it refers to an objective share of, or
participation in some advantage, as when one has a financial in-
terest in a real estate development project. In the first sense, the
plaintiff always has an interest in litigating in the forum, having
205. See e.g., McDougal, Judicial Jurisdiction: From a Contacts to an Interest

Analysis, 35 VAND. L. REV. 1 (1982). Professor McDougal proposes that an analysis of the
various interests at stake provides an adequate general theory of personal jurisdiction,
and he further argues that all private interests are included within and accommodated
by a sufficiently sensitive and detailed consideration of the various state interests in-
volved. McDougal's chief objection to the fairness criterion is that it is vague and diffi-
cult to apply in particular cases. Id. at 10-12. McDougal presents a detailed and elabo-
rate classificiation and analysis of the various interests he deems relevant to personal
jurisdiction in different kinds of cases. The very complexity of his analysis raises doubts
as to whether the "interest" analysis will be any easier to apply to particular cases than
the "fairness" test. But his entire discussion of interests is moot, unless there is some
argument, or some solid ground supporting the interest analysis as a fundamental stan-
dard for deciding questions of personal jurisdiction in preference to the standard of fair-
ness to defendant. At this crucial juncture, McDougal presents no argument. He states
[t]he failure of the present fairness standard suggests that courts should establish
jurisdictional policies that are either abstract or sufficiently flexible to account for
all the competing interests at stake. This proposition leads to the final major inad-
equacy of the minimum contacts approach - its failure to consider sufficiently
all the relevant interests at stake in controversies concerning a state's constitu-
tional authority to exercise jurisdiction.
Id. at 11-12. But the fairness theory fails to consider competing interests only if there are
any such interests, and this is the question in controversy. To simply assume that there
are such competing interests is not an argument.
1989] AFTER ASAHI
selected it.20 6 But when courts consider the degree of interest a

plaintiff has in a forum, the evidence presented is rarely that of
the intensity of plaintiff's desire to litigate in that forum, but
rather, the evidence relates to objective connections between the
plaintiff and the forum.20 7
With respect to the Court's argument that the plaintiff has
little interest in the forum, the most obvious response is that the
plaintiff seeks adjudication of this claim in this forum, and in
that sense has an interest in the forum. The Court's argument
that plaintiff has little interest in the forum is based upon an
objective analysis of the connections between the forum state
and the transactions underlying plaintiff's claim.2 08
By focusing on the objective nature of the transactions at
issue in the litigation, forum state interest arguments against ju-
risdiction subtly convert subject matter jurisdiction concerns
into restrictions on personal jurisdiction. When a court con-
cludes that the forum lacks interest in a piece of litigation, it is
actually saying that this is a type of case, based upon its subject
matter, which the court ought not to decide, or prefers not to
decide, regardless of the desire of the plaintiff to have the case
decided in that forum, and regardless whether there are suffi-
cient contacts between defendant and forum to justify the
Court's imposition of a judgment on the defendant. This
amounts to the court's substituting its judgment as to whether it
wishes to hear a certain type of case (a case with a certain sub-
ject matter), for the constitutionally-based inquiry into the fair-
ness to defendant of plaintiff's chosen forum. It is possible, of
206. This oversimplifies the Asahi situation, where the "plaintiff" on the claim in
question, Cheng Shin, was a defendant in the original lawsuit. Still, we may say that
Cheng Shin "selected" the forum in the sense of resisting the attempt by Asahi to avoid
the jurisdiction of that forum. See supra notes 158-62 and accompanying text.
207. In Asahi, for instance, the Court considers whether the Japanese defendant
should be required to defend in California. In arguing that jurisdiction does not exist,
the Court states:
[T]he interests of the plaintiff and the forum in California's assertion of jurisdic-
tion over Asahi are slight ... The transaction on which the indemnification claim
is based took place in Taiwan; Asahi's components were shipped from Japan to
Taiwan. Cheng Shin has not demonstrated that it is more convenient for it to
litigate its indemnification claim against Asahi in California rather than in Taiwan
or Japan.
480 U.S. at 114.
208. See id.
43
course, that lack of state interest in the litigation and absence of

objective connections between the plaintiff and the forum will be
related to the contacts between the defendant and the forum. If
the litigation is relatively unrelated to the plaintiff's chosen fo-
rum, this may make it less likely that there are sufficient con-
tacts between defendant and forum for the assertion of jurisdic-
tion over defendant to be fair.
The interest arguments advanced by the Court are at odds
not only with the due process basis of personal jurisdiction, and
not only with the distinction between subject matter jurisdiction
and personal jurisdiction, but also with the traditional function
of the court in our adversarial system. The court, in our system
of jurisprudence, is traditionally a neutral, unbiased arbiter, not
a quasi-party having concerns and interests to be vindicated
during the course of, and perhaps at the expense of, the interests
of private parties to a dispute. To say that the forum state has
no interest in the litigation means that the forum does not ex-
pect any of its policies to be advanced by the litigation, or
bluntly, that it does not anticipate any corresponding benefit
from its investment of resources to adjudicate the dispute. Con-
siderations of benefits to the state have nothing to do with the
fairness of the litigation to the litigants, or of the propriety of
conducting the litigation in that forum.
B. Post-Asahi Cases in the Lower Federal Courts

The main issue which has occupied the courts since Asahi is
the attempt to interpret and apply the purposeful availment
standard. The following cases reflect and illustrate the confusion
and uncertainty which Asahi has spawned.
In Ag Chem Equip. Co. v. AVCO Corp. °9 the district court
referred to the debate within the Supreme Court regarding the
meaning of the stream of commerce theory and applied the
Brennan interpretation, not the plurality standard.210 In Ag
Chem, the plaintiff brought suit against Stabilimenti Meccanici
VM ("VM"), the Italian manufacturer of the diesel engines
plaintiff had purchased for use in its industrial sprayers, alleging
209. 666 F.2d 1010 (6th Cir. 1987).

210. Id. at 1014.
1989] AFTER ASAHI
damages suffered as a result of problems with engines."'

VMGA, the American representative of VM and AVCO, the dis-
tributor which initiated the contact with plaintiff were joined as
defendants. 1 2 Upon motion by defendants VM and VMGA to
dismiss for lack of personal jurisdiction, the court found the con-
tacts between defendants and the forum sufficient to conclude
that there had been purposeful availment by the defendants of
the benefits of the state of Michigan.2 3 The court pointed out
that VM engaged AVCO "as its exclusive dealer . . . in the
United States and Canada," that VM "agreed to refer all inquir-
ies regarding its engines to AVCO," that VM agreed "to provide
AVCO with . . . catalogs . . . and other promotional materi-
als, . . . and further that VM agreed to provide a six-month
warranty on all its products sold by AVCO."' 2" The court also
stressed that both AVCO and its subdistributors were author-
ized by VM to perform service on its products.21 5 The court con-
cluded that defendants must have known that AVCO's efforts
included attempts to sell in Michigan, and therefore that under
Justice Brennan's stream of commerce analysis, defendants
knew they were availing themselves of the privilege of doing
21 6
business in Michigan.
In dictum, the court opined that defendant's activities also
met Justice O'Connor's more demanding test for purposeful
availment 21 7 As conduct going beyond the mere placing of a
product into the stream of commerce, the court pointed to
"AVCO's contractual obligation to market VM engines nation-
wide.... its promise to provide VM with annually updated lists
of its [sub]distributors," and to the exclusivity of AVCO's ar-
rangement with VM. 2' 8 The court's conclusion that even the
O'Connor standard was met underscores the length to which the
court went to reject it since either standard would yield the
same result.
211. Id. at 1011-12.

212. Id.
213. Id. at 1016.
214. Id.
215. Id.
216. Id.
217. Id.
218. Id.
45
In Sinatra v. National Enquirer,Inc.,2 19 Frank Sinatra sued

the tabloid newspaper, The National Enquirer, and the Clinic
La Prairie, a Swiss corporation operating in Montreux, Switzer-
land.2 20 The action related to an article published in the En-
quirer which stated falsely that Sinatra had sought youth treat-
ments, involving the injection of "live cells from black sheep
fetuses. '2 1 The gist of the claim against the Clinic was that
Clinic employees had cooperated with the Enquirer by "fabri-
cat[ing] an elaborate story calculated to link Sinatra's name
with their services."2'22 The embarrassing details of this
22 3
fabrication were calculated to obtain publicity for the Clinic.
The Ninth Circuit held that the California district court
possessed jurisdiction over the Clinic,224 but the court's pur-
poseful availment analysis was not entirely clear. The court re-
peated the Asahi plurality view that the awareness of the prod-
uct's entry into California and economic benefit was insufficient
for jurisdiction. The court also noted that there were sufficient
additional activities2 2 5 which consisted of efforts by the Clinic to
promote its business in California, through such acts as:
(1) the misappropriation of the value of Sinatra's name through
interviews conducted in Switzerland between Clinic employees
and Enquirer reporters, in which the Clinic supplied false infor-
mation about Sinatra's treatment at the Clinic; (2) the Clinic's
California advertising efforts to attract patients; and (3) the
Clinic's knowledge of Sinatra's residence in California.220
This analysis appears to be a straightforward attempt to satisfy
the Asahi plurality's "awareness-of-effects-plus" standard. But
the Sinatra court also states that it is sufficient for purposeful
availment if the defendant has "performed some type of affirma-
tive conduct which allows or promotes the transaction of busi-
'2 7
ness within the forum state.
219. 854 F.2d 1191 (9th Cir. 1988).

220. Id. at 1193.
221. Id. at 1195.
222. Id. at 1196.
223. Id.
224. Id. at 1202.
225. Id. at 1195.
226. Id.
227. Id. (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840
1989] AFTER ASAHI
This language appears to require a lesser showing for pur-

poseful availment than the Asahi plurality standard. If it is suf-
ficient for purposeful availment that conduct merely "allow" the
transaction of business within the forum state, then, on any rea-
sonable analysis of "allow," a subjective intent to do business in
the forum is not required. This language would also rule out at-
tempts by potential defendants to immunize themselves from ju-
risdiction by such devices as entering into contracts with distrib-
utors outside the jurisdiction where they are located. A
manufacturer who appoints distributors in a state "allows" (and
probably even "promotes") the transaction of business in that
state regardless of where the contract is signed.
Other courts have applied the plurality's "awareness plus"
test, but have allowed the amount of additional conduct re-
quired to shrink almost to the vanishing point. For example, in
Morris v. SSE, Inc.,2 28 the administratrix of the estate of a para-
chutist who had been killed in a jumping accident in Alabama,
brought suit in Alabama federal court against the Pennsylvania
manufacturer of a safety device designed to open the chute auto-
matically if necessary.2 2 9 Although defendant placed the safety
device in the national stream of commerce, defendant's contacts
with Alabama were minimal.2 3 0 The court found sufficient "addi-
tional conduct" for jurisdiction in that defendant had repaired
the device which allegedly caused this injury, and inasmuch as
there was a "reasonable inference" that defendant had adver-
tised in national trade journals.2 31 The court considered the re-
pair of the device to be analogous to "designing the product for
the [market in the] forum state," one of the factors which the
Asahi plurality indicated might constitute sufficient "additional
conduct. 21 32 But surely the Asahi court was referring to the
adapting or retooling of a product to meet the particular circum-
stances and needs of a particular market, not to a mere single
repair job on one item.23 3
(9th Cir. 1986)).

228. 843 F.2d 489 (11th Cir. 1988).
229. Id. at 490.
230. Id. at 493-94.
231. Id. at 494.
232. Id.
233. Edmonton World Hockey Enter. Ltd. v. Charles L. Abrahams, 658 F. Supp.
47
Several other cases do not hesitate to allow defendant, by

the unilateral declaration of its intentions, and the clever struc-
turing of its activities, to manipulatively avoid personal jurisdic-
tion notwithstanding defendant's extensive activities in the fo-
rum.2 3 4 The case of Bearry v. Beech Aircraft Corp.2"' is
astonishing in its result and cloudy in its reasoning. In Bearry,
the survivors of two Louisiana decedents brought suit in Texas
state court, claiming that decedents' death in a plane crash
(which occurred near McComb, Mississippi) resulted from the
defective design of defendant-manufacturer's aircraft.2 s Defend-
ant Beech is a Delaware corporation with its principal place of
business in Kansas.3 7 The United States Court of Appeals for
the Fifth Circuit reversed the district court, and held that the
contacts between the forum and the defendant were insufficient
for the exercise of general jurisdiction.23 This holding was in
spite of the findings that Beech distributed its products in Texas
through seventeen distibutors, one of whom was a wholly owned
subsidiary of Beech; that Beech did $250,000,000 of business in
Texas through these distributors during the period 1980 to 1985;
and that Beech was a party to sales contracts exceeding
$72,000,000 with Bell Helicopters of Fort Worth, Texas. 39 Beech
604, 608 (D. Minn. 1987), was decided on the basis of a lenient test for purposeful avail-
ment (that is, a test which could be satisfied on the basis of relatively slight defendant-
forum contacts). In Edmonton, the court stated that the purposeful availment test is
satisfied where "the defendant 'deliberately' has engaged in significant activities within a
State or has created the 'continuing obligations' between himself and residents of the
forum." Id. at 608 (quoting Burger King, 471 U.S. 462, 475-76 (1985)). If this test were
applied in Kostuch, 665 F. Supp. 474 (M.D. La. 1987), the court would surely conclude
that defendant had both deliberately engaged in "significant activities,' and had created
"continuing obligations." See supra notes 134-39 and accompanying text.
234. See, e.g., Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (contacts included
occasional musical performances, record distribution to state retailers, and boarding a
flight within the state); Fidelity and Casualty Co. v. Philadelphia Resins Corp., 766 F.2d
440, 447 (10th Cir. 1985), cert. denied, 474 U.S. 1082 (1986) (contacts included advertis-
ing in a national trade publication and sales of other products within the state); Single-
tary v. B.R.X., Inc., 828 F.2d 1135, 1136, reh'g denied, 834 F.2d 1025 (5th Cir. 1987)
(contacts consisted of advertising in national trade magazines, some of which reached the
state, and sale of the product to a state resident).
235. 818 F.2d 370 (5th Cir. 1987).
236. Id. at 372.
237. Id.
238. Id. at 376.
239. Id. at 372-73.
19891 AFTER ASAHI
had also engaged in a nationwide marketing campaign during

this period, and Beech representatives had "visited the Texas
dealers on occasion to assist them with maintenance problems,
to demonstrate new aircraft, and to offer sales incentives . . .
"240 The appellate court also found Beech's business activities in
Texas were enormous and that Beech conducted a significant

portion of general business affairs within the forum. 4 1
The appellate court begins its analysis with a brief but ob-
scure discussion of the power of the Texas court to serve process
on the defendant. 4' 2 The court first revived the notion of the
"federalism concerns of state sovereignty" as an independent
limitation on personal jurisdiction, but it appears to regard these
concerns only as a limitation on the power of a court to serve
process, not as a limitation on the power to adjudicate the rights
of a defendant once he is before the court.2,4 The court aban-
doned the discussion of service of process as abruptly as it began
it, launching into a contacts-fairness analysis, without reaching
240. Id. at 373.

241. Id. at 375.
242. Id. at 373.
243. The court makes the following confusing remarks:
First there are the federalism concerns of state soverignty - in which we inquire
about the power of one state to subject to its process the citizen of another state.
The restriction on state sovereign power limits the power of a state to compel a
citizen of a sister state to submit to its process. This restriction does not affect the
subject-matter jurisdiction of the state's courts - the power to adjudicate the
matter once consent is given. Accordingly, non-residents may consent to litigation
in a foreign state without raising federalism concerns.
Id. at 373.
Later the court states that sovereignty-federalism concerns are a "limit upon states im-
plicit in their very membership in the federation enforceable by residents." Id. at 374.
Apparently the court is suggesting that the constitutionality of a long-arm statute au-
thorizing the assertion of jurisdiction over a non-resident is logically independent of the
constitutionality of a statute authorizing service of process on a non-resident in imple-
mentation of the long-arm statute. In other words, the court argues, a long-arm statute
may be constitutional under the due process clause, but, because of federalism-sover-
eignty restrictions, there may be no constitutional means for the state to actualize this
jurisdictional power by enacting a statute authorizing service on the non-resident de-
fendant. See id. But the court gives no authority for this implausible suggestion. Nor
does the court give any explanation of why it supposes that a "limit upon states," based
upon rights supposedly possessed by states against each other, generates rights "enforce-
able by resident" in the absence of the assertion of such right by its possessor, the state.
Id. at 373. Furthermore, it is unclear what the court meant by its reference to subject
matter jurisdiction. Apparently the court's point is that purported sovereignty-federal-
ism limitations on service of process do not affect the power of a court to hear a case if
49
any conclusion as to whether the Texas court could constitution-

ally serve process under the restrictions purportedly imposed by
the sovereignty doctrine.2 " It is unclear how the court could fail
to reach a conclusion on this issue, having raised it initially, and
having insisted that it is a separate and independent constitu-
tional restriction upon which the case presumably could turn.
The court begins its contacts analysis by setting forth the
distinction between general and specific jurisdiction, and by ar-
guing that the continuous and systematic test for general juris-
diction must here be satisfied, since the cause of action does not
arise from or relate to the defendant's contacts with the forum
state.2 45 The appellate court rejected the district court's conclu-
sion that where a defendant has "continuously and systemati-
cally injected an enormous stream of commerce into the forum,
it is subject to general in personam jurisdiction in the forum,"
inasmuch as under those circumstances (the district court ar-
gued) the defendant has "availed itself of the privilege of doing
business in the forum and the protection of [its] laws to the ex-
tent that it can fairly anticipate the forum's exercise of general
jurisdiction over it."24 6 The district court also argued that where
a defendant's activities in the forum are as extensive as they are
here, this generates an interest in the state in regulating defend-
ant's conduct generally, and in providing a forum for the resolu-
2 47
tion of claims against the defendant.
The appellate court's arguments for overruling and rejecting
jurisdiction are unpersuasive. The appellate court stated that:
A conclusion that there is a stream of commerce ensures that the
contact that caused harm in the forum occurred there through
the defendant's conduct and not the plaintiff's unilateral activi-
consent to personal jurisdiction is given by defendant.

244. Id. at 374.
245. Id. The court made the gratuitous and misleading remark that "more contact is
required [in a general jurisdiction case] with the forum state because the state has no
direct interest in the cause of action." Id. But nowhere in Helicopteros Nacionales S.A.
v. Hall, 466 U.S. 408 (1984), the Supreme Court's most recent extended discussion of
general jurisdiction, does the Court suggest that this is the reason why more contact is
required. On the contrary, Helicopteros argues throughout that more contacts are re-
quired in a general jurisdiction case in order to satisfy the due process rights of defend-
ant. See id. at 413-14.
246. 818 F.2d at 375.
247. Id.
1989] AFTER ASAHI
ties; it does not ensure that defendant's relationship with the fo-
rum is continuous and systematic, such that it can be sued there
48
for unrelated claims.2
But this ignores the district court's argument, which was not
that the existence of a stream of commerce "ensures" sufficient
contacts for general jurisdiction, but rather, that where a stream
of commerce may, on the facts, be characterized as "enormous,"
it is reasonable to subject the defendant to jurisdiction.2 49
The most troublesome element of the opinion is the court's
willingness to allow the form imposed upon the transactions by
defendant to take the place of a flexible, fact-based inquiry into
fairness. The court attached great importance to the fact that
the sales agreements between Beech and its Texas dealers were
carefully negotiated in Kansas, with delivery of all goods ac-
cepted in Kansas, and that Beech had no control over the activi-
ties of.its retailers.2 50 The court acknowledged unabashedly that
Beech "exercised its right to structure its affairs in a manner
calculated to shield it from the general jurisdiction of the courts
of other states," and therefore, that "Beech has not afforded it-
self the benefits and protection of the laws of Texas, but instead
has calculatedly avoided them. ' 251 But the defendant's "enor-
mous" contacts with the state of Texas do not magically lessen
merely because of defendant's unilateral characterization of its
business activities in that state, or defendant's attempts to pre-
tend that they do not exist. Where a defendant engages in
"enormous" activity within a state, the laws of that state regu-
late and control defendant's business activities, regardless of de-
fendant's attempts to pretend otherwise.2 2
248. Id.
249. Id.
250. Id.
251. Id. at 375-76.
252. In another recent case against the same defendant, Hayworth v. Beech Aircraft,
690 F. Supp. 962 (D. Wyo. 1988), the court found the contacts sufficient for jurisdiction.
In Hayworth, the plaintiff, an airplane mechanic, sued for injuries which occurred when
the landing gear on the airplane on which he was working collapsed, pinning him under-
neath. Although the airplane was sold and delivered in Kansas, and although defendant
had few contacts in Wyoming, the court found the contacts sufficient, relying primarily
51
In Kostuch v. Southtrust Bank,5 the court held that finan-

cial benefit obtained by defendant from its activities in a juris-
diction, even when defendant knew it was receiving such finan-
cial benefit, is insufficient to satisfy the purposeful availment
test.2 5 4 In Kostuch, the plaintiff, a seller of group health insur-
ance plans, brought suit against defendant Southtrust Bank as
trustee of a Health Benefit Group Trust ("AAH"), alleging that
defendant mismanaged the funds of the AAH trust and that
plaintiff sustained injury to its business as a consequence.25 5 The
defendant moved to dismiss for lack of personal jurisdiction on
the ground that it was an Alabama business with no office and
no employees in Louisiana and with no other contacts within the
state of Louisiana sufficient for personal jurisdiction.2 "
Defendant admitted that it received funds from contribu-
tors to the trust from the state of Louisiana, and that it
"make[s] disbursements to individuals and institutions in [Loui-
siana] when directed to do so by the [trust] administrator," but
defendant denied that such contacts amounted to purposeful
availment under applicable law.257 Plaintiff, of course, character-
ized these activities as doing business in Louisiana, as maintain-
ing a persistent course of conduct in Louisiana, and as providing
services in Louisiana.2 " In rejecting jurisdiction, the court did
not dispute plaintiff's recitals that defendant knowingly derived
"substantial economic benefit" from contributions from Louisi-
ana, and that defendant "could have foreseen causing injury in
Louisiana. 25 ' But the court responded that plaintiff failed to
show that defendant actively solicited those funds or that it ad-
vertised in Louisiana, and the court therefore concluded that the
purposeful availment test was not met and that the court there-
on the fact that defendant sold the aircraft to a "known out-of-state customer" and the
further fact that defendant also advertised in Wyoming. Id. at 965. The court distin-
guished Bearry on the grounds that it involved general, rather than specific jurisdiction.
Id. at 966 n.1.
253. 665 F. Supp. 474 (M.D. La. 1987).
254. Id. at 477.
255. Id. at 474.
256. Id. at 475.
257. Id.
258. Id. at 475-76.
259. Id. at 476.
19891 AFTER ASAHI
fore lacked jurisdiction.2 6

Kostuch is wrongly decided, and the mistake stems from the
misconception of the purposeful availment test which has its
source in the four-person plurality opinion in Asahi. Kostuch af-
fords defendants grossly excessive power to declare unilaterally
where they will permit themselves to be sued. The misconcep-
tion is to suppose that purposes can be declared arbitrarily
rather than inferred from conduct and behavior. Sometimes one
purposefully avails oneself of a benefit by knowingly and contin-
uously accepting the benefit, and by continuing the activities
which generate that benefit, whether or not the intent to accept
that benefit is ever articulated. (It could be argued that this is
within the meaning of an "indirect effort" to exploit a market
contemplated by World-Wide). The compensation paid to a
trustee of a fund is based upon the contributions to that fund.
There is nothing subtle or hidden or indirect about that com-
pensation; that is the way the trustee conducts its business.
Sometimes a businessperson is fortunate enough to be able to
generate profits without needing to advertise, or to take other
steps to solicit or generate business. It hardly follows from being
in this fortunate position that one does not avail oneself of the
markets in which one does business and from which one bene-
fits. This is all the more true when, as here, the market in ques-
tion is in a state adjacent to the defendant's principal place of
business and where the benefit is substantial.
MMR Holding Corp. v. Sweetser61 is another case where
the court allowed a defendant, this time an individual, to struc-
ture his activities so as to avoid personal jurisdiction. The de-
fendant was a Virginia resident, who had been employed as
president of Foley Enterprises, (Foley), a District of Columbia
corporation based in Virginia, which operated a business as an
electrical and mechanical contractor. Foley became bankrupt
and unable to perform outstanding construction contracts.
MMR, a Delaware corporation with its principal place of busi-
ness in Louisiana, entered into an agreement with Foley
whereby MMR undertook to perform certain of Foley's out-
standing contractual obligations, one of which was located in
260. Id.
261. 675 F. Supp. 326, 330 (M.D. La. 1987).
53
Louisiana. Pursuant to a written contract, Sweetser was hired by

MMR as president of this newly created Foley Group Division.
After less than six months, MMR terminated Sweetser's employ-
ment and brought suit against him in Louisiana state court seek-
ing recission of the employment contract, damages, and other
relief. Sweetser moved to dismiss on the grounds of lack of per-
sonal jurisdiction.26 The action was subsequently removed to
the United States District Court for the Middle District of
2 63
Louisiana.
The case required the interpretation and application of the
Burger King analysis of the significance of a contractual rela-
tionship as a contact for jurisdictional purposes. The court con-
cluded that it lacked jurisdiction notwithstanding the contract
between the parties. 2 " The court stressed that the principal
terms of the contract had been negotiated in Virginia, that
Sweetser "was to be employed 'at the Foley Group's headquar-
ters in the . . . Washington D.C. area,'" that he was not to be
moved from that area without his consent, and that the "parties
would be governed by the laws of Virginia."26 5 The court recited
that Sweetser never visited Louisiana in the performance of his
duties under the contract and that his contacts with Louisiana
were limited to telephone conversations.2 6 6 Strangely, the court
asserted without argument that it was "insignificant" that "de-
fendant's salary, medical benefits and an automobile were
funded from MMR in Louisiana. "267
There are several curious features about this opinion. The
first is the court's lack of care and concern in distinguishing the
facts of MMR from Burger King. Unlike the defendant in Bur-
ger King, Sweetser had been an employee of plaintiff.6 8 Argua-
bly, the language in Burger King stressing the voluntary affilia-
tion of defendant in an ongoing relationship with a foreign
corporation applies with even greater force to one who enters
into an employment relationship with that corporation. Further-
262. Id. at 326.

263. Id. at 326-27.
264. Id. at 330.
265. Id. at 329.
266. Id. at 330.
267. Id.
268. Id.
1989] AFTER ASAHI
more, the employment relationship itself arguably provides a

contact relevant to jurisdiction. Secondly, the court noted that
defendant Sweetser, had taken the initiative to seek out and so-
licit the sale of Foley to MMR, and that this solicitation was a
contact tending in favor of jurisdiction. 69 But the court did not
reach the legal question of whether an initial solicitation by
Sweetser would have been a sufficient basis for jurisdiction. 7 0
Rather, the court rejected the factual premise of this argument,
2 71
concluding that the initial contact had been made by MMR
IV. Conclusion
The principal issue with which the courts are now wrestling
is the interpretation of the purposeful availment - stream of
commerce theory as set forth in the various opinions in Asahi.
Unfortunately, the courts generally take for granted that the
contacts analysis and the fairness analysis are two separate and
independent states of the jurisdictional inquiry, and they further
take for granted that "purposeful availment" is the basic test for
determining the sufficiency of the contacts. The courts further
assume without serious questioning that under the heading of
"fairness," various considerations other than convenience to de-
fendant are relevant, including, principally, the forum state's in-
terest in resolving the dispute, and the plaintiff's interest in the
chosen forum. These assumptions should be rejected and the
Supreme Court should reaffirm the basic principle of Interna-
tional Shoe that personal jurisdiction is based upon fairness to
defendant as measured by defendant's presence in the forum.
269. Id. at 328.

270. Id.
271. Id. at 327-29. Another recent case which addresses the relevance for jurisdic-
tional purposes of the initiation of contact by a foreign defendant is American Greetings
Corp. v. Cohn, 839 F.2d 1164 (6th Cir. 1988). The Sixth Circuit considered this prescise
issue again in Lanier v. American Board of Endodontics, 843 F.2d 901 (6th Cir. 1988).
55

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Pace Law Review

Contacts, Fairness and State Interests: Personal

Follow this and additional works at: http://digitalcommons.pace.edu/plr

t B.S., Juilliard School of Music; Ph.D., University of Rochester; J.D., University of

derlying all personal jurisdiction questions. The first is whether

5. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

mate basis for personal jurisdiction is fairness, and simultane-

7. Assertions of jurisdiction are subject to both constitutional and statutory limita-

tended by Shaffer, is both broad, in respect to the number of

not offend fair play and substantial justice."' Due process is a

posing some kind of relation between the concepts of contacts

Undeniably, the Court's reference to "convenience" in-

business, in which he has no agent or representative, in short, in

31. 326 U.S. at 319.

2. Due Process and State Sovereignty

that there was a direct constitutional basis for the territorial

41. For a discussion of the Court's theory of jurisdiction based on "principles of

one nation to affect persons or property located elsewhere or to

44. Id. at 723.

in Asahi Metal Industry Co. v. Superior Court of California,"

B. Setting the Stage for Asahi

50. 480 U.S. 102, 113 (1987).

the necessary foundation for examining the most recent law. In

57. Id. at 288.

Upon certiorari, the United States Supreme Court reversed

65. Id. at 291.

sonably anticipate being haled into court there."'

This "haled into court" standard is the closest the Supreme

69. Id. at 297.

defendant's intent, and to downplay the objective financial ben-

74. Id. at 297 (emphasis added).

on these facts: either the promotional activities had been suc-

76. 444 U.S. at 297-98 (emphasis added).

the "expectation" language (the language previously termed an

tri-state area, and in particular, in Oklahoma? Upon careful

they were used. Suppose that the purchaser was injured in an

the label "collateral relationship" as a substitute for an argu-

poseful, intentional activity of the defendant. 1 But this is not

91. See id. at 297-99.

false unless one arbitrarily limits contacts to exclude financial

b. Justice Brennan's Dissent

[Tihe burden on the defendant, while always a primary concern, will, in an

lar issues. But in fact, the analysis is very different. Plaintiff's

which generally cannot be compromised or adjusted. If a defend-

2. Burger King Corp. v. Rudzewicz

In Burger King Corp. v. Rudzewicz,10 7 Justice Brennan had

107. 471 U.S. 462 (1985).

Court for the Southern District of Florida.11 3 After the trial

113. Id. at 468.

noted that the Burger King agreement stated that operations

3. Keeton v. Hustler Magazine

133. 465 U.S. 700 (1984).

juries suffered throughout the entire country, the major portion

assertion of jurisdiction to be unfair. 14 7 The court of appeals had

147. 682 F.2d at 35.

III. Asahi and Beyond

Court of California,1"' reexamines many of the issues we have

155. 480 U.S. 102 (1987).

ifornia reversed and denied jurisdiction on the ground that the

163. Id. at 107-08.