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Cardozo Law Review

Abstract

Courts have struggled with applying personal jurisdiction in cases involving intentional torts where the defendants act outside the forum, and the problem is particularly apparent and acute when the defendants use the internet to commit the tort. For example, is there jurisdiction when a defendant doxxes someone and calls for violence? What if they leave a bad Yelp review? Or tweet a defamatory statement? Courts have used many tests for determining whether personal jurisdiction is appropriate in these situations, but there has been relatively little recent scholarship on whether these tests are appropriate for analyzing personal jurisdiction in these contexts. This Article seeks to fill that gap by synthesizing existing U.S. Supreme Court precedent and developing a framework for analyzing personal jurisdiction for intentional torts that more closely aligns with the analysis used for other types of cases and that better addresses the constitutional concerns underlying all personal jurisdiction analyses. Courts sometimes apply one test to intentional torts and another to negligence and contract breaches; in other cases, they apply multiple tests to intentional torts. Although courts often begin with an accurate, general statement about the constitutional requirements for personal jurisdiction in cases involving intentional torts, their subsequent use of these tests muddles the analysis. They discuss facts that are not relevant or place inappropriate emphasis on those facts, use broad language that obscures the nuances in the analysis, and apply tests with elements that do not affect the outcome of the analysis under any circumstances. Much of the confusion stems from the complex and nuanced relationship between three critical U.S. Supreme Court cases: Calder v. Jones, Keeton v. Hustler Magazine, Inc., and Walden v. Fiore. While the Court in Walden reaffirmed the results in Calder and Keeton, it provided little guidance on how to properly synthesize the rationales in the three cases and, in particular, on how to determine when conduct targets a forum as opposed to targeting only its residents. The resulting confusion is compounded by courts’ rigid use of separate tests based on the plaintiffs’ claims rather than the defendants’ conduct. After a brief discussion of the overarching framework for analyzing personal jurisdiction, this Article argues that courts should focus on a defendant’s intent to target a forum for all claims and avoid rigidly applying separate tests. In so doing, courts should harmonize the reasoning of Calder and Keeton with that of Walden, which would demonstrate the resulting relevance (or irrelevance) of various facts to the jurisdictional analysis. The Article ends by offering an alternative framework that aligns the jurisdictional analysis for intentionally tortious conduct committed outside the forum more closely with the framework for analyzing jurisdiction in cases involving other claims. When defendants engage in or use economic transactions with forum residents, personal jurisdiction is appropriate if those transactions demonstrate an intent to cultivate or access a market there. Absent that or any other direct evidence of intent to target the forum, courts should infer targeting only when the defendant’s intentionally tortious conduct seeks to cause others to act affirmatively in the forum (e.g., commit violence, fire someone, or breach a contract).

Disciplines

Civil Procedure | Internet Law | Jurisdiction | Law

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