The Action Bias in American Law: Internet Jurisdiction and the Triumph of Zippo Dot Com
Volume 80, No. 1, Spring 2007
By Richard K. Greenstein [PDF]

American law reflects the stories we tell ourselves about whom we are as a nation. To illustrate the effect of America’s stories on the law, I identify and describe in this Essay a particular characteristic of American law–an “action bias”–a propensity to bestow disproportionately greater legal significance on affirmative acts than on failures to act. I argue that this bias reflects, in turn, a powerful myth at the core of the self-image of the United States, a myth I call the “Immigrant’s Tale.” I will begin with a particular and remarkable instance of the action bias by considering the career of Zippo Manufacturing Co. v. Zippo Dot Com, the case that formulated the framework now used almost universally in the determination of personal jurisdiction in Internet cases.

Of course, the development of the Internet has challenged the law as new technologies typically do. Usually, the problem is whether to revise old legal doctrines in order to deal more adequately with the new reality or to develop specially tailored new doctrines. With the Internet, however, this usual problem intersects with a vigorous debate over whether the Internet is simply a new tool for achieving old objectives in our familiar world or a new and strange world altogether. For, if it is the latter, questions about what the law should look like are complicated by questions such as whether the idea of law even makes sense in cyberspace.

One important piece of this puzzle was the issue of how to determine personal jurisdiction in cases involving the Internet. I say “was” because this question has largely been resolved, and its resolution was swift and decisive. In the mid-1990s, the doctrinal question seemed up for grabs, with competing tests vying for dominance in the marketplace of judicial ideas. In short order, however, one particular framework–that announced in Zippo Dot Com–rapidly achieved preeminence. On the face of it, this is surprising since the approach had no obvious logical or policy advantage over its competitors. In this Essay, I attempt to understand the quick and far-reaching triumph of Zippo Dot Com. Why did that happen, and what does it mean?

By 1996, the year before Zippo Dot Com was decided, issues regarding the proper test for personal jurisdiction in Internet cases were being raised with increasing frequency. The following hypothetical problem illustrates what the debate was about:

Jack maintains a personal site on the World Wide Web from his home computer in New York City. The site includes various family photographs, some of Jack’s poetry, several political diatribes, and a section entitled “X-Girlfriends,” in which he discusses various women with whom he has been involved. Jack’s Web site can be visited by anyone in the world with access to the Internet.

One of Jack’s former girlfriends is Brie, whom Jack dated when they were both attending college in New York. After graduation, Brie moved several times to various places and is currently living in Fargo, North Dakota, where she operates a small business. Jack and Brie have not been in contact with one another since her move, Jack does not know that Brie currently lives in North Dakota, and Jack has neither traveled to North Dakota nor had dealings with anyone in that state.

One day Brie received a phone call from her friend Colby. Colby also lives and works in Fargo. Bored at her job that afternoon, Colby had searched the Internet for Brie’s name on her office computer and followed various links that took her to Jack’s Web site. When Colby read his “X-Girlfriends” entries, she discovered that Jack had made several scandalous assertions about Brie’s personal life. When Brie heard from Colby about the nature of these assertions, she visited Jack’s Web site herself, read the relevant entries, and thereupon contacted a lawyer, who filed a defamation suit against Jack in a North Dakota state court. The court must decide whether it can assert personal jurisdiction under a North Dakota statute that authorizes the exercise of long-arm jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment. The starting place for the court’s inquiry, of course, is the “minimum contacts” test of International Shoe Co. v. Washington, which famously announced that a state court may constitutionally assert long-arm jurisdiction over a party to a dispute only if that party has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.”’

In a series of cases adding nuance to this doctrine, the United States Supreme Court clarified that the contacts in question were those that show that the party has “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” and that the party “should reasonably anticipate being haled into court there.” So has Jack “purposefully avail[ed himself] of the privilege of conducting activities within [North Dakota]”? Should he “reasonably anticipate being haled into court there”?

What is interesting about Jack’s case is that while he did not direct his Internet activities specifically toward North Dakota, he undoubtedly understood that his Web page could be accessed from any place, and it was in North Dakota that his remarks about Brie had their defamatory effect. Is this enough to subject Jack to the jurisdiction of a North Dakota court?

Within a nine-month span during 1996-1997, two federal district courts formulated distinct approaches to jurisdiction in cases involving Internet activities that framed the debate for virtually all succeeding cases throughout the country. The analyses proposed by Inset Systems, Inc. v. Instruction Set, Inc. and Zippo Dot Com would likely generate opposite results in Brie’s suit against Jack. In brief, Inset Systems supports jurisdiction on the ground that Jack’s Web page was “designed to communicate with people . . . in every state.” By contrast, Zippo Dot Com opposes jurisdiction on the ground that Jack’s activities are essentially “passive” within the territory of North Dakota, depending on individuals within that state to take the initiative to access his site.

In Section I of this Essay, I will examine these competing approaches in more detail, but my main concern in that Section is to chronicle the rapid emergence of the test formulated in Zippo Dot Com as the overwhelmingly dominant framework now used by American courts. My interest is not to take sides in the now largely concluded debate; as I expect to demonstrate, each approach has important and evident virtues. Rather, I am interested in understanding why Zippo Dot Com triumphed so quickly and decisively. Precisely because each approach has its virtues, one might have anticipated a long struggle among various courts–with some aligning with Inset System, some with Zippo Dot Com, and some developing a hybrid as the analytical framework of choice for determining jurisdiction in Internet cases. So the question I want to ask is: Why did the Zippo Dot Com test achieve such a swift and nearly universal appeal over its competitor, the Inset Systems test?

To get at this question, I will develop two ideas. In Section II, I will describe an “action bias” in American law; again, this is the propensity of American legal doctrine to bestow disproportionately greater legal significance to affirmative acts than to failures to act. In Section III, I will describe a traditional story, the “Immigrant’s Tale,” that, with several important variations, has become central to the dominant conception of what defines the United States. Reversing directions, I will argue in Section IV that the law’s action bias is understandable in terms of the national self-conception illustrated by the Immigrant’s Tale, and in Section V, that the test for personal jurisdiction formulated in Zippo Dot Com is understandable as a particular instantiation of the action bias and, ultimately, of the values exemplified in the Immigrant’s Tale.

In developing this analysis, I will focus largely on the due process dimension of personal jurisdiction analysis. That focus seems the obvious approach since the judicial treatment of the constitutional parameters of personal jurisdiction post-Pennoyer v. Neff has been articulated exclusively in due process terms. Still, it bears remembering that any extraterritorial projection of state power over individuals will raise issues both of fairness toward those individuals and of comity toward the other states that have interests in the dispute (especially the states in which the individuals are physically located or are domiciled). The assertion of long-arm jurisdiction is no exception.

Notwithstanding the United States Supreme Court’s claim that modern personal jurisdiction cases are concerned exclusively with due process and not with the relationship among states, federalism continues to play a significant role in personal jurisdiction analysis. Consequently, the exercise of long-arm jurisdiction over Jack raises both due process issues regarding the fairness of subjecting Jack to the authority of a North Dakota court in that particular state and federalism issues regarding the proper respect owed New York by North Dakota. So while the discussion in this Essay will emphasize the due process dimension of the problem, Section VI offers a “Postscript” that relates a second story, the “Sovereign’s Tale.” That story (and the “territory bias” that lies at its core) suggests how the Zippo Dot Com test also resonates with our traditional understanding of the federalism dimension of personal jurisdiction doctrine.

My thesis is a broad one: I want to suggest, by examining the particular example of personal jurisdiction in Internet activity cases, that the development of legal doctrine through judicial decisions reflects the stories we tell ourselves about whom we are as a people and what we stand for as a culture. This thesis has direct implications for an important practical question: What makes a legal argument persuasive? Lawyers often treat legal argumentation as being overtly about the techniques of interpreting precedent and legislation, about conflicts among competing public polices, and perhaps about clashes among moral values. Latent determinants of a successful argument might include the personal preferences of individual judges, the personal goals of individual legislators, legislative capture by interest groups, the current political atmosphere, and so forth.

What I want to add to this list is the suggestion that the success of a legal argument may have much to do with whether that argument resonates with pervasive and deeply held understandings of what kind of community we are and wish to be. Like the myths of all cultures, our stories express that collective self-understanding. And like the myths of all cultures, our stories infiltrate and shape our norms and our social and political institutions, including law. The Immigrant’s and Sovereign’s Tales are among the stories we tell ourselves as a culture, the action and territory biases in American law are their manifestations, and the triumph of one particular legal argument–Zippo Dot Com‘s “sliding scale” test–is a consequence.

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