In a global economy, price and convenience are valued above all else. Global consumers demand produce out of season, buy sophisticated appliances made with cheap labor and build homes with materials shipped from abroad. And yet when these products prove to be defective, they expect to be able to sue the manufacturer at the local courthouse, regardless of where it resides. After all, the product reached them — so they should be able to sue in their home court, right?
We’ve come a long way from Penoyer v. Neff, 95 U.S. 714 (1878), when a defendant’s physical presence in the forum state was required to exercise jurisdiction over him. Various U.S. Supreme Court decisions have expanded the notion of personal jurisdiction, simultaneously muddying the water as to precisely what constitutional analysis is required.
Take, for example, Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102 (1986). There, the separate plurality opinions of justices Sandra Day O'Connor and William Brennan both approved of some form of the “stream of commerce” theory of jurisdiction but disagreed on the exact formulation of the test to be applied. Although lower courts subsequently used some form of “stream of commerce” analysis after Asahi, they seldom used it as a stand-alone test. Most have always added to it some form of “minimum contacts,” “purposeful availment” or other analysis to establish that the defendant somehow intended or expected to benefit from the jurisdiction. This traditionally has been seen as required by the due process clause.
