Concept
Contract and Tort Contacts
Specific jurisdiction
Contract and Tort Contacts
Specific jurisdiction does not require the defendant to set foot in the forum. In Burger King v. Rudzewicz, the Court upheld jurisdiction over a nonresident defendant who had purposefully entered a long-term, interdependent contractual relationship with a forum resident, a relationship with contemplated future consequences in the forum and a choice-of-law clause favoring the forum.1 Physical presence cannot be the measure, because commerce and communication cross state lines by mail, telephone, and wire. A company can build a relationship with a forum resident, take in revenue from it, and affect the forum's economy without sending anyone there. McGee v. International Life Insurance Co. shows how far the principle reaches. The only demonstrated contact between the insurer and California was a single policy sold to a California resident, yet the Court upheld jurisdiction over the suit arising from it, because the insurer had solicited and maintained that contract and California had a strong interest in redress for its residents.2
Because such dealings leave no physical footprint, the court asks what kind of relationship the defendant created and what that relationship reveals about its own choices. The question never changes: did the defendant itself reach out to the forum, so that it could reasonably anticipate being sued there? Only the evidence changes. For a contract, the evidence lies in the negotiations, the terms, and the future consequences the parties contemplated, which show how tightly the defendant tied itself to the forum. For a publisher, it is regular circulation, which exploits the forum's market and exposes the publisher to suit over what the magazine says.3 For an intentional tort, it is aim: a defendant who directs wrongful conduct at the forum, knowing the harm will be felt there, has chosen the forum as the place the conduct takes effect. For online conduct, the question is again targeting, but the Supreme Court has not announced a test written for the internet, so courts fit these older decisions to new facts.
In each setting the defendant's own choice carries the analysis, the idea that ran through Hanson and World-Wide Volkswagen, where a contact supplied by the plaintiff or a third party did not count. A contract with a forum resident does not alone establish minimum contacts,4 and neither does the plaintiff's residence or injury in the forum.5 The contract setting comes first, because Burger King shows how a court reads a commercial relationship for evidence of deliberate dealing with the forum.
Contracts as Contacts
Burger King Corp. v. Rudzewicz holds that a nonresident defendant who purposefully enters a long-term, interdependent contractual relationship with a forum resident, one with contemplated future consequences in the forum, may be sued there on a claim that grows out of the relationship. Jurisdiction then remains fair unless the defendant shows the forum to be so gravely inconvenient that he is at a severe disadvantage.6 The same opinion closes off the shortcut that holding might seem to invite: an individual's contract with an out-of-state party cannot alone automatically establish minimum contacts in the other party's home forum.7 The contract matters as evidence of what the defendant itself did to connect with the forum, the same purposeful-availment question that ran through the product-sale cases.
The Court rejected a contract-as-contact rule because of what a contract ordinarily is. It called for a “highly realistic” approach that treats a contract as “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.”8 A rule keyed to the paper would measure the wrong thing, since where a contract was signed, accepted, or performed turns on drafting details that say nothing about whether the defendant chose to affiliate with the forum. The Court had long refused to let jurisdiction turn on “mechanical” tests or on “conceptualistic . . . theories of the place of contracting or of performance.”9 The relationship behind the paper reveals the defendant's choices.
The same realism explains why a contract can nevertheless carry great weight. Parties who reach out beyond one state and create continuing relationships and obligations with citizens of another are subject to regulation and sanctions there for the consequences of their activities, and the Due Process Clause may not readily be wielded as a territorial shield against interstate obligations voluntarily assumed.10 Physical entry is unnecessary, because much modern business is transacted solely by mail and wire; so long as a commercial actor's efforts are purposefully directed toward residents of another state, the absence of physical contacts cannot defeat jurisdiction.11 A presence requirement would exempt the very actors who gain most from interstate dealing. And because modern communications make it far less burdensome to defend in a state where one does business, it usually is not unfair to require a defendant to litigate there the disputes arising from that business.12
The franchise dispute in Burger King shows a contract with those features. Burger King conducted and supervised its operations from its Miami headquarters.13 Rudzewicz, a Michigan franchisee, entered a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida.14 The agreement provided that it would be deemed made in Florida and governed by Florida law,15 and it directed all relevant notices and payments to Miami.16 Rudzewicz's associate, MacShara, attended a brief training course in Miami, but Rudzewicz kept no offices in Florida and, so far as the record showed, had never even visited the state.17 When the Michigan franchisee defaulted on its payments, Burger King sued in federal court in Florida, and Rudzewicz contested jurisdiction on the ground that his only Florida contact was the franchise agreement itself. The district court upheld jurisdiction under the Florida long-arm statute, the court of appeals reversed for want of any purposeful contact with Florida, and the Supreme Court reversed the court of appeals and upheld jurisdiction.18
Each inquiry pointed the same way on the Burger King record. On the negotiations, Rudzewicz passed up the option of operating an independent local enterprise and deliberately reached out beyond Michigan to negotiate with a Florida corporation for a long-term franchise and the benefits of affiliating with a nationwide organization.21 On future consequences, he entered a carefully structured 20-year relationship and voluntarily accepted long-term, exacting regulation of his business from the Miami headquarters. The Court concluded that the “quality and nature” of that relationship could in no sense be viewed as “random,” “fortuitous,” or “attenuated.”22
The terms and the course of dealing supplied the rest. The contract documents stressed that Burger King's operations were conducted and supervised from the Miami headquarters, that all relevant notices and payments had to be sent there, and that the agreements were made in and enforced from Miami.23 In practice, when problems arose over building design, site-development fees, rent computation, and the defaulted payments, Rudzewicz and MacShara learned that the Michigan office was powerless to resolve their disputes and could only channel their communications to Miami.24 The court of appeals had treated the Michigan district office as, for practical purposes, the embodiment of Burger King. The Supreme Court found that this reasoning overlooked record evidence that Rudzewicz knew he was affiliating himself with an enterprise based primarily in Florida.25 His refusal to make the required payments in Miami, and his continued use of Burger King's trademarks and confidential business information after termination, also caused foreseeable injury to the corporation in Florida, so it was at least presumptively reasonable to call him to account there.26
The Court's treatment of the choice-of-law term shows how much one clause can carry. The court of appeals had treated choice-of-law provisions as irrelevant to personal jurisdiction, relying on Hanson's statement that a state's status as the center of gravity for choice of law does not necessarily confer the power to assert jurisdiction. The Supreme Court answered that choice-of-law analysis looks at all the elements of a transaction, while minimum-contacts analysis looks at the defendant's own purposeful connection to the forum, and that nothing in this distinction requires ignoring a choice-of-law provision when asking whether the defendant invoked the benefits and protections of the state's laws.27 Standing alone, such a provision would be insufficient, but combined with the 20-year interdependent relationship it reinforced Rudzewicz's deliberate affiliation with Florida and the reasonable foreseeability of litigation there.28 The clause counts at all because the defendant agreed to it, which makes it his own act and not the unilateral activity of the franchisor. It cannot carry the analysis alone because it says nothing about whether the defendant's business actually reaches into the forum. The agreement itself stated that the choice-of-law designation “does not require that all suits concerning this Agreement be filed in Florida.”29 A forum-selection clause is different: it supplies jurisdiction by consent, a basis that stands apart from minimum contacts.30
The Court limited its holding. It distinguished the franchise relationship from the situation of “out-of-state consumers [owing] on modest personal purchases,” and it observed that less significant and enduring contractual relationships might not merit the same treatment.31 An exam answer that treats every contract with a forum company as a forum contact ignores that limit.
The sale ends on delivery, so it creates no future consequence that ties the dentist to Florida, and none of the four inquiries turns up anything running toward that state. Rudzewicz's agreement, by contrast, began a 20-year relationship whose terms and course of dealing ran through Miami. Change the facts to a multiyear supply arrangement, with payments and supervision running to Florida and a dentist who sought out the supplier, and the case begins to look like Burger King.
Justice Stevens dissented, and his objection marks the pressure point in franchise cases. He stressed that Rudzewicz kept no place of business or employees in Florida, sold all his products in Michigan, and dealt principally with the Michigan office, and he thought the majority relied on little more than standard boilerplate. In his view, such superficial analysis creates a potential for unfairness not only in negotiations between franchisors and franchisees but, more significantly, in the resolution of the disputes that inevitably arise in those relationships.32 The majority rejected that view on the record. The district court had found that Burger King made no misrepresentations and that the franchisees were experienced and sophisticated businessmen acting under no economic duress, and Rudzewicz, an experienced accountant represented by counsel, negotiated for months and bound himself to payments exceeding $1 million.33 The Court added that inconvenience to a party with minimum contacts can usually be accommodated through a change of venue, and that the claim about missing Michigan witnesses lacked support in the record.34 The dissent's concern therefore belongs to the reasonableness step taught later in this reading, where a defendant must show that the forum puts it at a severe disadvantage.35
On an exam, sort the contract facts by the four inquiries instead of stopping at the existence of a contract with a forum company. Note who reached out, how long the relationship runs, where payments, notices, and supervision go, and whether the actual dealings ran through the forum, and treat a choice-of-law clause as reinforcement for those facts. The other party's residence in the forum adds nothing to the defendant's own contacts.
Publishers and Libel
Keeton v. Hustler Magazine, Inc. holds that a publisher that regularly circulates its magazine in a state, and so causes potential injury there, may be sued for libel in that state consistent with due process; it can reasonably anticipate being haled into court where its publication is sold and causes harm.37 The case applies purposeful availment to a defendant whose contact with the forum is the steady sale of its product there. Hustler Magazine, Inc., an Ohio corporation with its principal place of business in California, sold some 10,000 to 15,000 copies of its magazine in New Hampshire each month.38 Keeton, a New York resident who assisted in producing the magazine, claimed to have been libeled in five issues published between September 1975 and May 1976, and her only connection with New Hampshire was the circulation there of copies of that magazine.39 She sued in New Hampshire because it was the only state in which the statute of limitations had not yet run.40 The district court dismissed the suit, believing the Due Process Clause forbade applying New Hampshire's long-arm statute to the publisher, and the court of appeals affirmed, summarizing its concerns with the remark that “the New Hampshire tail is too small to wag so large an out-of-state dog.”41 The Supreme Court reversed.42
The Court found the publisher's contacts easy to classify. The district court had found that Hustler's general course of conduct in circulating magazines throughout the state was purposefully directed at New Hampshire, and the Supreme Court added that regular monthly sales of thousands of magazines “cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous.”43 Those sales were the publisher's own decision. That separates this case from World-Wide Volkswagen, where a consumer's unilateral act carried the product into the forum.44 Here the publisher chose how many copies to send into New Hampshire and collected the revenue from them. A libel claim based on the contents of those copies arises from that activity, since the tort of libel is generally held to occur wherever the offending material is circulated.45 The Court put the point this way: a publisher that has “continuously and deliberately exploited” the forum's market must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine.46 That exposure follows from the publisher's own sales, so the publisher can manage the risk by procuring insurance, passing the expected cost on to customers, or severing its connection with the state, the same options open to any seller that serves a forum market.47
The court of appeals had hesitated for three reasons, and the Court answered each. The first was that Keeton herself had almost no connection with New Hampshire. The Court has never required a plaintiff to have minimum contacts with the forum before a state may assert jurisdiction over a nonresident defendant, and it has upheld jurisdiction even where the plaintiff's contacts were entirely lacking, as in Perkins v. Benguet Consolidated Mining Co.48 The reason lies in whose interest the contacts requirement protects: the defendant's liberty interest in not being bound by a forum with which it has no meaningful ties. The inquiry therefore asks what the defendant did in the forum and how the claim relates to it.49 A plaintiff's thin ties subtract nothing from a defendant's substantial ones. Residence is not wholly irrelevant, because the plaintiff's residence in the forum may, given the defendant's relationship with the plaintiff, enhance the defendant's contacts, but it is not a separate requirement, and its absence does not defeat jurisdiction that rests on the defendant's contacts.50 Nor did the Court see any reason to confine libel suits to the plaintiff's home forum, since the bulk of the harm will occur elsewhere in almost every libel action brought outside the plaintiff's domicile.51 New Hampshire also had its own stake, because it could use its libel laws to redress injury to reputations within its borders and to discourage the deception of its citizens.52
The second concern was that the plaintiff had picked New Hampshire because its limitations period was the only one still open. The Court treated that complaint as a choice-of-law question, one that arises only after jurisdiction over the defendant is established and that should not complicate or distort the jurisdictional inquiry.53 A successful search for a state with a long limitations period is no different from the strategy of countless plaintiffs who seek a forum with favorable substantive or procedural rules or sympathetic local populations, and Hustler, having chosen to enter New Hampshire's market, can be charged with knowledge of that state's laws.54 A forum's long limitations period says nothing about the defendant's contacts, which is why the plaintiff's motive for choosing the forum is not determinative once those contacts are substantial.55
The third concern was the breadth of the suit. Under the single publication rule, a plaintiff recovers in one action the damages from publication of the alleged libel throughout the country, so Keeton sought nationwide damages for all copies of the five issues even though only a small portion of them were distributed in New Hampshire.56 The Court asked whether it was fair to make Hustler defend that multistate suit in New Hampshire and answered yes. Hustler could be charged with knowledge of the single publication rule, and a publisher of a national magazine aimed at a nationwide audience may fairly be called to answer for its contents wherever a substantial number of copies are regularly sold and distributed.57 The rule also serves defendants, since it lets all the damages from one libel be resolved in a single proceeding and protects the publisher from harassment by multiple suits.58 Keeton's thin ties could not defeat jurisdiction, and a plaintiff's strong ties cannot create it either, because the contacts that count are the defendant's.59
The decisive difference between the bulletin and Hustler's magazine is who put the copies in the forum. Hustler sold them in New Hampshire by the thousands every month, so the forum contact was its own act, and the Court has said that a contact counts only if it is the defendant's own choice and not the unilateral activity of someone who claims a relationship with the defendant.60 The Maine bulletin reached Arizona through a third party's unilateral act, the same defect that defeated jurisdiction over the trustee in Hanson and the dealer in World-Wide Volkswagen. On an exam, sort the stem's forum facts by who created them before asking anything else about the plaintiff.
Keeton also marks its own limit. Hustler's New Hampshire activity might not have been substantial enough to support jurisdiction over a claim unrelated to it, but the libel claim arose from the circulation of the magazine in the state, and that was sufficient.61 The circulation is both the contact and the source of the claim, which makes Keeton a specific-jurisdiction case.
Later decisions rely on Keeton for the same reasoning. Burger King cited it for the proposition that a publisher who distributes magazines in a distant state may fairly be held accountable there for damages resulting from an allegedly defamatory story.62 Ford Motor Co. v. Montana Eighth Judicial District Court cites it for the rule that the contacts must be the defendant's own choice,63 and describes it as invoking the principle from World-Wide Volkswagen that a corporation that has continuously and deliberately exploited a state's market must reasonably anticipate suit there over injuries its products cause there.64
The Calder Effects Test
Calder v. Jones, decided the same day as Keeton, supplies the other route to a forum. Keeton was in some respects the better case for jurisdiction, because the defendant was the publisher itself and enjoyed a more direct economic benefit from forum sales than the writer and editor in Calder. It was in other respects the worse case, because the plaintiff had no connection to the forum other than having filed there, so no one could say the allegedly tortious activity was targeted at the forum.66 Calder filled that gap. A defendant who commits an intentional tort expressly aimed at the forum state, causing harm the defendant knows will be suffered there, may be sued in that forum even if its physical contacts with the state are limited. The Court rested jurisdiction on the “effects” of the defendants' Florida conduct in California, which is why courts call the doctrine the effects test.67
Physical entry is unnecessary because of what the defendant has already done. A defendant who writes about a forum resident's forum-centered career, gathers material from forum sources, and knows the damage will land in the forum has chosen the forum as the place the conduct takes effect. That choice gives the same warning and makes the same connection that a sale or a visit would. A presence rule would let a defendant injure a forum resident from just across the border and then decline to answer where the injury occurred. The Court said that an individual injured in California “need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California.”68 Burger King later placed Calder among the decisions rejecting the idea that the absence of physical contacts can defeat jurisdiction when a defendant's efforts are purposefully directed toward residents of another state.69
The defendants' physical ties to California were thin. Shirley Jones, who lives and works in California, sued the National Enquirer, its local distributing company, and two individuals over an article in the October 9, 1979 issue.70 The Enquirer, a Florida corporation, published a national weekly with a circulation above five million, about 600,000 of those copies sold in California, almost twice the level of the next highest state, and the Enquirer and its distributor answered without objecting to jurisdiction.71 The two individuals did object. South, a Florida reporter, wrote the first draft and did most of his research in Florida, but he relied on telephone calls to California sources, and shortly before publication he phoned Jones's home and read a draft to her husband.72 Calder, also a Florida resident, was the Enquirer's president and editor. He had visited California only twice, once on a pleasure trip before publication and once afterward to testify in an unrelated trial. He reviewed and approved the initial evaluation of the article's subject, edited it in its final form, and declined to print a retraction Jones requested.73
Four facts about the story made California its focal point. It concerned the California activities of a California resident, it impugned an entertainer whose television career was centered in California, it was drawn from California sources, and the brunt of the harm to her emotional well-being and professional reputation was suffered there.74 From those facts the Court concluded that California was the focal point both of the story and of the harm suffered, so jurisdiction was proper based on the effects of the Florida conduct in California.75 Most of those facts trace to something the defendants chose, since they picked the subject and the sources. The location of the harm was outside their control, yet the Court counted it because they knew of it when they acted: they knew the brunt of the injury would fall in the state where she lives and works and where the Enquirer has its largest circulation.76
The defendants answered that a reporter and an editor have no direct economic stake in their employer's sales in a distant state and cannot control its marketing, and they likened themselves to a Florida welder whose boiler later explodes in California. The Court agreed that their contacts are not to be judged by the employer's activities, but it held that their status as employees does not insulate them from jurisdiction. It rejected the welder analogy because the defendants were “not charged with mere untargeted negligence”; their intentional, and allegedly tortious, actions were “expressly aimed at California.”77 Each defendant's contacts must be assessed individually, and a primary participant in wrongdoing intentionally directed at a forum resident is answerable there.78 The contrast with World-Wide Volkswagen follows from the same facts. The dealer and regional distributor there did nothing directed at Oklahoma, while the writer and editor here aimed their work at California and built it from California sources.79
South and Calder satisfy each step. South's reliance on California sources and Calder's editing of the article were intentional acts that produced a story about a California entertainer's California career, and both men knew the harm would land where she worked and where the Enquirer's circulation was largest.84 The second and fourth steps do the real work in other cases, because they separate a defendant who aimed at a place from one who only affected a person who happened to live there.
That difference marks the limit of the doctrine, and it comes from Walden v. Fiore, which Ford later described in terms that show where the line sits. A Georgia police officer working at an Atlanta airport searched two Nevada residents and seized money from them before they boarded a flight to Las Vegas, and the travelers sued the officer in Nevada on the theory that they felt the injury, the loss of their money, in the state where they lived.85 The Court held jurisdiction in Nevada improper even though the plaintiffs felt the effects of the officer's conduct there. Only the plaintiffs had any contacts with Nevada. The officer had “never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada,” and so had never taken any act to form a contact of his own with the state.86
Walden explained why Calder came out the other way. The crux of Calder was that the reputation-based effects of the libel connected the defendants to California as a place, not just to the plaintiff. A libel injures reputation only when third parties read it, so an article written for publication in California and read by a large number of Californians committed the tort there.87 The officer in Walden, by contrast, was connected only to two people who happened to live in Nevada, and the relevant conduct occurred entirely in Georgia.88 The Court has stated the principle in general terms: “a defendant's relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction.”89 The argument that loses points on an exam is that the defendant knew where the plaintiff lived and so aimed the tort at the forum. Knowledge that the plaintiff resides and was injured in the forum is insufficient when the defendant has made no contact of its own with the state.90
The plaintiff's residence and place of injury are not wholly irrelevant, but they enter the analysis at a different point. They cannot create the defendant's contact with the forum, yet they may still bear on the link between the defendant's forum contacts and the plaintiff's suit, including who was injured where.91 The sequence therefore runs in one direction. A court first asks whether the defendant itself reached toward the forum, and only then asks how closely the claim connects to what the defendant did there, a question the next part of this reading takes up.
The Superior Court had believed that special solicitude was needed for reporters and editors, because requiring them to answer in remote forums for what they wrote would chill their work, and it quashed service on that ground. The California Court of Appeal reversed, and the Supreme Court affirmed.92 The Supreme Court rejected the suggestion that First Amendment concerns enter the jurisdictional analysis, reasoning that they would needlessly complicate an already imprecise inquiry.93 The deeper reason is that the potential chill on protected activity is already accounted for in the constitutional limits on the substantive law of libel, so weighing it again at the threshold would be “a form of double counting.”94 A defendant who loses the jurisdictional question keeps every First Amendment defense on the merits.
Calder clearly states that foreseeable effects in the forum in an intentional tort case satisfy purposeful availment and so show minimum contacts.95 The separate reasonableness inquiry, developed most clearly in Asahi, nonetheless ought to apply in intentional tort cases as it does in other tort cases, or at the very least the effect in the forum must be something other than the plaintiff's residence. A defendant who shows some special difficulty in mounting a defense in the forum can defeat jurisdiction even though its conduct had a foreseeable effect there.96 The two inquiries overlap but are independent: a forum that is convenient for the parties and witnesses cannot make up for missing minimum contacts.97
Online Contacts
The Supreme Court has not announced a test written for the internet. In Ford Motor Co. v. Montana Eighth Judicial District Court, it said, “we do not here consider internet transactions, which may raise doctrinal questions of their own,” and it pointed to Walden v. Fiore, which had reserved “the very different questions whether and how a defendant's virtual ‘presence’ and conduct translate into ‘contacts’ with a particular State.”99 Ford then takes up a hypothetical from oral argument to show what remains open: a retired man in a small Maine town who carves decoys and sells them through a website. May any state where a decoy causes harm hear a suit against him? The differences between that seller and Ford “virtually list themselves,” the Court said, once one considers everything Ford did in the forum states, so resolving the Ford cases did not resolve the decoy seller's.100
Because no Supreme Court test governs, lower courts carry the settled ideas of this chapter into the new setting. Their inquiry runs in two steps: first whether the state's long-arm statute, which authorizes the state's courts to reach nonresident defendants, covers the defendant, and then whether exercising jurisdiction satisfies the Due Process Clause.101 This section concerns the second step, where the question stays the one that governs every other contact: what did the defendant itself do to reach out to the forum? The tempting answer is that a website reaches everywhere, so its owner reached the forum. Courts reject that answer, because maintaining a site that people in the forum can view is not enough, by itself, to generate jurisdiction, and a contrary rule would expose every owner of a web page to suit across the nation or the world and chill activity on the web.102
The reason follows from how a website works. A page is reachable from everywhere by design, so its reachability says nothing about whether the owner chose the forum, and the visitor who clicks supplies the connection. That is the unilateral-activity defect this chapter met in the trustee and dealer cases, now arriving by browser. A seller that does no more than post a page lets prospective buyers draw it into the forum, as though the stream of commerce came to the seller. In that setting everything is foreseeable, which is why foreseeability cannot be the measure.103 A passive page that only advertises a local business shows how little accessibility proves.
The facts that decided the cafe's case are the missing ones: no New York advertising and no New York orders. Courts confronting this pattern arranged online contacts along a continuum. At one end, where the defendant regularly does business with forum residents through its site, they usually find jurisdiction; at the other end, where the site only passively advertises a product or service, they usually refuse.104 In the Cybersell litigation, the Ninth Circuit held that a Florida firm's website, which was not interactive and through which the firm conducted no commercial transactions, did not purposefully avail the firm of Arizona, since posting a website accessible in the forum is not the same as targeting it.105
The middle of the continuum takes its name from Zippo Manufacturing Co. v. Zippo Dot Com, Inc., where the maker of Zippo lighters sued the operator of a California internet news service in Pennsylvania, alleging trademark infringement.106 The court found purposeful availment in the defendant's knowing and repeated processing of Pennsylvania commercial transactions, even though the Pennsylvania purchasers initiated them.107 For sites between the two ends, meaning interactive sites where a user can exchange information with the host computer, the court looked to the level of interactivity and the commercial nature of the exchange.108
Courts now lean less on those three labels. Many regard the passive, interactive, and commercial division as outdated, though its insight that purposeful availment is the consistent touchstone of specific jurisdiction was sound.109 A site with a contact form or shopping cart is interactive in some sense, so a rule keyed to interactivity stops separating the defendant that reached for the forum from the one that merely exists online. Courts have therefore moved toward asking about targeting, and one federal district court framed the inquiry as whether the defendant “is expressly targeting residents of the forum state and not just making itself accessible to everyone regardless of location.”110 Some courts have gone further and set the sliding scale aside, requiring more than the existence of a website, interactive or not, before inferring that the owner directed its marketing at the forum.111 The labels are best read as shorthand for evidence of targeting, which is the question an answer must address.
Facts that show targeting appear in Poulin Ventures, LLC v. MoneyBunny Co., where the court considered a seller of anti-blue-light glasses accused of using a mark registered by the plaintiff.112 The seller's interactive site let a customer select New Mexico as the ship-to destination, calculated shipping and tax costs particular to New Mexico sales, and then shipped the order, and the seller admitted selling about 100 pairs to New Mexico residents. The court held that the plaintiff had made a prima facie showing of purposeful direction at New Mexico, reasoning that purposeful availment may be shown where an out-of-state defendant causes its products to be distributed in the forum state.113 Each step in that sequence was the seller's own programming and the seller's own shipment, so the forum contacts were the defendant's choices and not a customer's. A seller that offers a state as a destination can also stop offering it, and that control over its own exposure is why the forum may fairly hold the seller to the choice.
A single online sale shows the other side of the line. In Boschetto v. Hansing, a California buyer bought an antique car through eBay from Wisconsin sellers, hired a transport company to bring it to California, and sued the sellers there when the car arrived and did not meet expectations.114 The Ninth Circuit upheld dismissal for lack of personal jurisdiction, because advertising the car through an online marketplace did not purposefully avail the sellers of California. The buyer pointed to no continuing commitments the sellers had assumed in California, the funds went to Wisconsin, the pickup was arranged in Wisconsin, and the court called the transaction a “one-shot affair.”115 Both sets of sellers used the internet. The New Mexico seller built a forum-specific ordering path and filled a regular stream of orders through it, while the Wisconsin sellers made one sale whose delivery to California the buyer arranged. Neither decision needed a new doctrine, because the analysis of internet contacts examines the defendant's contacts with the forum and their relation to the claim just as it does in any other case.116
Online content that injures a forum plaintiff raises the aim question from Calder v. Jones in place of a question about sales. Courts have applied the effects test to social media posts.117 In Binion v. O'Neal, a Michigan man sued a nonresident defendant over social media posts about him, and the court in Michigan dismissed for want of personal jurisdiction.118 The court found that injury to a forum resident alone does not suffice, that the plaintiff had not established that the posts were “expressly aimed for dissemination” in Michigan, and that the posts were directed at “a national or even international audience.”119 The defendant's business connections in the state did not help, because the plaintiff was not injured by those dealings and his claim was independent of them.120 The result matches the limit on the effects test from the last section, since a plaintiff's residence and injury in the forum cannot by themselves supply the defendant's own contact. Where a defendant does use a site to commit a tort targeted at the plaintiff in the forum, the site's accessibility there suffices.121 Email, for its part, raises no special issue, because courts treat it like postal mail.122
A problem built on the Maine decoy carver shows what the steps leave unresolved. The carver's site may or may not let buyers choose a state, the sales into the forum may be one or many, and the buyer may or may not have arranged the shipping, and the Supreme Court has not said how those answers translate into contacts.128 On an exam, the usual error is to treat the visibility of a site in the forum, the size of its audience, or the plaintiff's residence there as the defendant's own contact. In contract and product cases a website is seldom the only forum contact, so the website question matters most in trademark and defamation claims, where the page may be the only contact and some courts still apply the sliding scale.129