Paddling Past Nicastro in the Stream of Commerce Doctrine: Interpreting Justice Breyer's Concurrence as Implicitly Inviting Lower Courts to Develop Alternative Jurisdictional Standards

By Findley, Kaitlyn | Emory Law Journal, January 1, 2014 | Go to article overview

Paddling Past Nicastro in the Stream of Commerce Doctrine: Interpreting Justice Breyer's Concurrence as Implicitly Inviting Lower Courts to Develop Alternative Jurisdictional Standards


Findley, Kaitlyn, Emory Law Journal


ABSTRACT

The Supreme Court established the stream of commerce doctrine in its World-Wide Volkswagen Corp. v. Woodson opinion in response to the rapid emergence of complex personal jurisdiction questions in products liability cases involving nonresident manufacturers whose products were sold and caused injury in U.S. forums. Although the doctrine was initially intended to clarify jurisdictional analysis in these cases, its application has been ambiguous and judicially divisive due to the Court's chronic inability to explicate the quantity and quality of contacts that the doctrine requires a nonresident defendant to establish with a forum state before that state may exercise personal jurisdiction over it.

The Court first attempted to clarify the stream of commerce doctrine's application in Asahi Metal Industry Co. v. Superior Court, which instead resulted in the issuance of a split decision that announced two competing analytical standards for determining the requisite quantity and quality of a nonresident defendant's contacts with a forum state asserting jurisdiction: (1) the "pure stream of commerce test," requiring only a nonresident defendant's placement of its products in the stream of commerce with the expectation that the products will be sold in the forum state, and (2) the "stream of commerce plus test," requiring evidence of a nonresident defendant's "additional conduct" directed at the forum state beyond merely placing its goods in the stream of commerce. For nearly a quarter of a century following Asahi, lower courts grappled with how to apply these competing tests without any further guidance from the Court.

In 2011, the Court finally made its second attempt to clarify the stream of commerce doctrine by granting certiorari in J. McIntyre Machinery, Ltd. v. Nicastro. Unfortunately, the Court issued another disappointing split decision, prompting a torrent of law review articles conjecturing the theoretical impact of Nicastro and criticizing the Court for failing to provide meaningful analytical guidance. In contrast, this Comment is devoted to critically analyzing the three patterns in which lower courts have actually responded to Nicastro, and it posits that although the criticism of the Court may be valid, it is counterproductive to moving the stream of commerce doctrine past Nicastro to a state of much-needed stability.

This Comment argues that Justice Breyer structured his concurrence, which constitutes the holding of Nicastro under the Marks Rule, in a manner that enables lower courts to interpret his opinion as an implicit invitation to develop alternative jurisdictional approaches for the Court to survey the next time it grants certiorari to clarify the doctrine. Providing the Court with a more varied doctrinal landscape to survey has the potential to break the persistent analytical deadlock that caused the Court to issue split decisions in Asahi and Nicastro. Thus, this Comment argues that reading Justice Breyer's concurrence as this implicit invitation is the only interpretation that will assist the Court in moving the stream of commerce doctrine past Nicastro toward the adoption of a stable and uniform personal jurisdiction analysis.

INTRODUCTION

The Supreme Court announced the stream of commerce doctrine to facilitate complicated personal jurisdiction analyses in complex products liability cases involving nonresident1 manufacturers whose products were sold in U.S. forum states2 and caused injury. Under the stream of commerce doctrine, as originally described in World-Wide Volkswagen Corp. v. Woodson,3 a state's exercise of personal jurisdiction over a nonresident defendant is reasonable so long as the defendant "delivers its products into the stream of commerce with the expectation they will be purchased by consumers in the forum State."4

Despite the Court's simple phraseology, the actual application and requirements of the doctrine have remained fraught with ambiguity since its initial announcement in World-Wide, which should not come as a shock given the Court's interminable battle in squaring a state's exercise of personal jurisdiction with Fourteenth Amendment due process5 requirements more generally. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Paddling Past Nicastro in the Stream of Commerce Doctrine: Interpreting Justice Breyer's Concurrence as Implicitly Inviting Lower Courts to Develop Alternative Jurisdictional Standards
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.