Cody James Jacobs (Georgetown University Law Center) has posted A Fork in the Stream: The Unjustified Failure of the Concurrence in J. McIntyre Machinery Ltd. v. Nicastro to Clarify the Stream of Commerce Doctrine (DePaul Business & Commercial Law Journal (2014 Forthcoming)) on SSRN. Here is the abstract:
This article critiques the concurring opinion in the recent United States Supreme Court personal jurisdiction decision in J. McIntyre Machinery Ltd. v. Nicastro. That opinion declined to choose between the competing approaches to the stream of commerce doctrine because of perceived flaws in those approaches and because the facts of Nicastro did not involve modern technology.
Consumer products are increasingly distributed through international distribution chains. Whether foreign manufacturers who utilize such chains are amenable to personal jurisdiction in states where their products are distributed has become a hotly litigated issue because of the Supreme Court’s 4-4-1 split decision over 20 years ago in Asahi v. Superior Court. The Court had an opportunity to resolve that issue in Nicastro but again could not muster five votes for a single test because of the concurring opinion of two Justices that declined to break any new ground.
There are serious negative economic consequences to having unclear jurisdictional rules for such a commonly occurring situation. Moreover, the lack of clarity violates the due process rights of defendants who cannot effectively structure their primary conduct to avoid jurisdiction.
This article argues that the concurrence’s critiques of the competing approaches to the stream of commerce test were overblown and that modern technology should not significantly impact the stream of commerce calculus. While internet contacts certainly need to be taken into account in any personal jurisdiction inquiry, lower courts already have a well-accepted test for analyzing them that operates independently of any analysis of product distribution networks. Thus, the concurrence unnecessarily perpetuated a murky legal climate that will continue to confound businesses, litigators, and courts.