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

Article excerpt


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.


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. …


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