These days, cyberspace [FN1] is the place to be. If you are not connected to the Internet [FN2] you are nowhere, but if you are connected, where are you? State and federal courts have begun to address this question recently as they struggle to apply nineteenth-century territorial principles of jurisdiction first set forth by the United States Supreme Court 120 years ago in Pennoyer v. Neff [FN3] to twenty-first century cyberspace-based disputes. [FN4] Predictably, courts applying this anachronistic doctrine, using rules devised a half-century ago in International Shoe Co. v. Washington [FN5] to "modernize" Pennoyer, have failed to agree. [FN6] This disagreement results, not from any particular difficulty in *386 conceptualizing cyberspatial transactions, but from flaws inherent in the doctrine of personal jurisdiction. [FN7] Even as applied to familiar events, the Supreme Court's jurisdictional due process jurisprudence is internally inconsistent and fundamentally unjust, and is becoming more so all the time. The doctrine is inconsistent in that the various formulae and factors prescribed to determine jurisdiction do not serve the doctrine's articulated purposes. [FN8] In particular, the Supreme Court's increasing emphasis on whether a particular defendant reasonably should have foreseen being sued in the forum state, while it has a certain superficial appeal, renders the doctrine fundamentally incoherent. [FN9] Moreover, this same emphasis on the reasonable expectations created by a defendant's particular circumstances makes the doctrine unjust because the fact-intensive nature of the foreseeability inquiry and the uncertainty of its outcome, paradoxically, leave defendants unable to predict whether they can afford to default, while raising the barriers of entry to the courthouse for plaintiffs unable to afford multistate litigation. [FN10]

This Article will examine the general constitutional doctrine of personal jurisdiction through the lens of the developing cyberspace jurisprudence. Part II traces the development of those aspects of the Supreme Court's personal jurisdiction analysis that render the doctrine incoherent, particularly as applied to cyberspace. Part III describes the emerging case law applying territorial notions of jurisdiction to cyberspace. Part IV evaluates personal jurisdiction in light of these recent developments, and proposes ways in which the doctrine might be realigned to meet the needs of the twentieth century, as well as those of the twenty-first.

Personal jurisdiction is a court's power to make a binding adjudication of a person's rights and obligations. [FN11] A court's ruling can bind a party in several ways: First, a judgment is binding in that the power of the state is available to enforce a judgment insofar as it can be carried out within the state. [FN12] A judgment specifying that the defendant should pay money or deliver property to the plaintiff, for example, makes the power of the state, in the person of the sheriff, available to seize a defendant's assets within the state to satisfy the judgment. [FN13] Second, in the United States, the holder of a judgment from one state can call upon the power of sister states to enforce the judgment against judgment debtors and their assets located in those states. [FN14] Third, once a claim or issue has been determined by a court in the United States, subject to certain conditions and limitations, the doctrines of res judicata and collateral estoppel prevent any party to the action in which the determination was made from calling upon another court to reconsider the same claim or issue. [FN15]

The outer limit of a state court's ability to enforce its own judgments is the territory within which the agents of the state are able to seize the judgment debtor's person or property. [FN16] Although, theoretically, the *388 agents of California's courts have the de facto power to seize persons and property in Arizona to execute California judgments, the states' mutual respect for each other's sovereignty invariably restricts these enforcement activities to the territory of the state authorizing them. Instead of sending their agents to invade Arizona, California courts-or, practically speaking, holders of judgments rendered by California courts-rely on the courts of other states for extraterritorial enforcement of their judgments. The states' mutual recognition of each other's sovereignty is mirrored by their mutual obligation to recognize the judgments of each other's courts, derived from the Full Faith and Credit Clause of the United States Constitution. [FN17] Thus, the extraterritorial extension of the practical limits of a court's ability to issue binding judgments depends both on the willingness of sister states to enforce and recognize such judgments, and on the willingness of the U.S. Supreme Court to require them to do so. The primary reason a state court might not be required to recognize or enforce a judgment from a sister state is that the judgment was entered without personal jurisdiction. [FN18] The doctrine of personal jurisdiction therefore marks the limits of one state's ability to impose obligations on the sovereign governments of sister states.

In the United States today, to exercise jurisdiction over a person a state court must be authorized to do so by the legal order of which the court is a part, and the particular assertion of jurisdiction must not *389 exceed limits implicit in or backed by the Due Process Clause of the U.S. Constitution. [FN19] Courts are generally authorized to assert jurisdiction over a party who submits to having its rights and obligations adjudicated by that court, either intentionally by making an unqualified "appearance" before the court [FN20] or otherwise agreeing to the court's authority, [FN21] or inadvertently by seeking relief from the court, [FN22] taking action with respect to a lawsuit inconsistent with a denial of jurisdiction, [FN23] or in some other way by appearing and failing to comply with the forum's rules for preserving a jurisdictional challenge. [FN24]

A court may also be authorized to assert jurisdiction over a person who might be deemed to have submitted to the governance of the legal order of which the court is a part, either because the person is domiciled in the state [FN25] or incorporated under its laws, [FN26] or because the person or its agent is physically present within the state's territory when served with process. [FN27]

*390 The foregoing bases for jurisdiction are sometimes referred to as the "traditional" bases. [FN28] Where traditional bases for jurisdiction are available, actions on claims arising from events in cyberspace should pose few really novel problems; natural persons and corporations will continue to have permanent affiliations and transitory presences in the analog world no matter how much time they may spend on-line.

Absent any traditional basis for jurisdiction, a court may nevertheless be specifically authorized to exercise jurisdiction over a person who engages in various kinds of conduct in the state or who acts outside the state to cause certain effects in the state. [FN29] Jurisdiction based on a nonresident defendant's conduct with respect to the state is commonly known as "long-arm" jurisdiction, and state statutes spelling out the contours of such jurisdiction are known as "long-arm statutes." [FN30] Many long-arm statutes authorize only "specific" jurisdiction; that is, they give courts power to decide only claims arising from or related to the conduct justifying jurisdiction. [FN31] Thus, to determine whether a court is authorized to assert specific jurisdiction, it is necessary to ask both whether the defendant has committed acts or caused effects of the sort giving rise to jurisdiction, and whether the claim or claims at issue in the action arise from those acts or effects.

The determination of which acts and effects taking place "in" or by means of cyberspace may come within the terms of "enumerated act" long-arm statutes may pose significant difficulties for courts trying to interpret and apply statutes and case law written without the new medium in mind. [FN32] Presumably, however, such gaps and *391 misunderstandings as become apparent could be remedied through corrective legislation and the development of each state's common law. [FN33] The real conceptual problems will arise when new legislative and common law developments originating in cyberspace are measured against limits located in an inherently conservative nineteenth-century constitutional provision. [FN34]

In addition to being authorized by state law, the assertion of jurisdiction by a state court must be constitutional. For the past 120 years the Supreme Court has found the Due Process Clause of the Fourteenth Amendment to impose limits on the jurisdictional reach of the state courts. [FN35] The Due Process Clause, however, is silent as to what those limits might be, and courts have struggled without success to articulate reliable rules or standards by which any particular assertion of personal jurisdiction might be judged.

*392 Generally speaking, personal jurisdiction over parties who have submitted to a court's authority has been found by the Court to be constitutionally unproblematic-a plaintiff, for example, who submits a claim to the court for resolution will not be heard to complain that its due process rights are being violated by determination of that claim, nor will a person who has contractually agreed to a selected forum be likely to succeed in arguing that that forum is so unfair as to lack jurisdiction. [FN36] A person subject to jurisdiction by virtue of domicile, [FN37] incorporation, or service in the state [FN38] will also have little hope of convincing a court that jurisdiction violates due process. It is long-arm jurisdiction, based on the acts and omissions of nonconsenting, nonresident defendants, that has given courts and litigants the most difficulty.

Jurisdiction over an out-of-state defendant based on activity in, or with respect to, the state will be constitutional if the defendant has "minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice."' [FN39] Unfortunately for courts trying to determine whether they have jurisdiction over a defendant, for plaintiffs trying to select a forum, and for defendants wondering whether they must appear, application of this "minimum contacts" criterion "cannot be simply mechanical or quantitative." [FN40] "Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure." [FN41] Far from being a "mechanical" test, the minimum contacts test has proved, over the fifty years since its invention, to be so uncertain in its application that the justices of the U.S. Supreme Court are now in the ironic position of being as sure to agree on the result in any personal jurisdiction case as they are to disagree on why it should come out the way it does. [FN42] The justices *393 apparently find little difficulty in divining the outcome of particular cases, but they cannot agree on an articulation of rules or standards to apply to decide future cases, even when the need for a clear statement of such rules is the explicit purpose for accepting review of a given case. [FN43]

This disjunction reflects the fact that the rhetorical elements of personal jurisdiction do not reflect the bases on which personal jurisdiction issues are actually being decided. Because the reasoning of these cases does not lead to their outcomes, these opinions have become vehicles for the justices to argue with each other about whatever jurisprudential issues may be on their minds. [FN44] Unfortunately, the justices' utter lack of agreement about the basis for the constitutional doctrine of personal jurisdiction, and thus about the reason for why any particular exercise of jurisdiction is or is not to be permitted, makes the doctrine exceedingly difficult to apply to new and unforeseen situations, such as transactions occurring in whole or in part in cyberspace.

Not only the general uncertainty inherent in the Court's articulation of personal jurisdiction doctrine, but also the unfortunate direction of the few, relatively feeble efforts the Court has made in recent years to *394 relieve the uncertainty, insure that jurisdiction in cyberspace will be a fruitful source of disagreement on the appropriate application of the law. Taken together, two of the Court's most recent personal jurisdiction cases, Asahi v. Superior Court and Burnham v. Superior Court, suggest that the Court will place a renewed emphasis on two aspects of the evolving jurisdictional formula: the foreseeability of litigation in the forum state, from the point of view of the defendant challenging jurisdiction; and the importance of the intentional crossing of territorial boundaries in order to enhance the predictability-and thus, presumably, the fairness-of personal jurisdiction. [FN45] Both foreseeability and boundary crossing are highly problematic concepts when applied to cyberspace transactions.

Neither Pennoyer nor International Shoe identified the defendant's ability to predict where his conduct would render him amenable to suit as a requirement of due process. [FN46] Notice, of course, is an essential element of procedural due process, but the "notice" required in that doctrine is notice that proceedings are underway in which one's life, liberty, or property might be at risk. [FN47] Of the Supreme Court's personal jurisdiction jurisprudence, only Mullane v. Central Hanover Bank deals at any length with the notice requirement of procedural due process. [FN48]

Notice is also an issue lurking in Pennoyer; plainly, the fact that the only effort to notify Neff of Mitchell's action against him was the publication of an item in a local sectarian newspaper [FN49] contributed to Neff's victory over Pennoyer. [FN50] However, the Pennoyer Court was not particularly concerned with the requirements for insuring effective notice. Although the Court speculated that seizure of property should be sufficient to notify its owner of the pendency of an action, [FN51] it is clear that seizure of Neff's property, which in the court's analysis would have been sufficient to establish jurisdiction, would not have informed Neff of the pending action; following Neff's default, Mitchell did have Neff's property seized and sold, and Neff did not learn of this transaction until he returned to Oregon years later and found Pennoyer living on his property. [FN52] In any event, the "notice" with which the Pennoyer court was peripherally concerned was notice of the initiation of Mitchell's lawsuit, not notice that Neff's employment of an attorney in Oregon might eventually lead to a suit against him in that state. [FN53]

Nor was the Court in International Shoe concerned with a defendant's reasonable expectations. [FN54] Rather, the accomplishment of International Shoe was to substitute for the term "presence" in the traditional, power-based jurisdictional calculus of Pennoyer a more modern concept of *396 "contacts" or activities in the state that could be applied to the incorporeal corporation; it is significant that the sentence ending with the invocation of "traditional notions of fair play and substantial justice" begins with a reference to the establishment of jurisdiction by physical arrest. [FN55] As in Pennoyer, the only kind of notice with which the International Shoe Court is concerned is notification that the action is pending, [FN56] not the foreseeability of suit in the forum state.

Despite its obscure beginnings, the concept of predictability has become increasingly important in jurisdictional jurisprudence over the past twenty years. In its most recent statement on personal jurisdiction, the Supreme Court referred to the minimum contacts test as "a proxy for notice," [FN57] and identified "'notice' or 'fair warning' as the analytic touchstone of due process. . . analysis." [FN58] Unfortunately, this concept of foreseeability cannot intelligibly be applied to many cyberspace transactions. How did it become critical to personal jurisdiction?

As demonstrated in International Shoe, there is no logically necessary connection between the minimum contacts test and a defendant's ability to foresee suit in the forum state. [FN59] The aspect of the minimum contacts test now identified as insuring predictability is the requirement of "purposeful availment." A nonresident defendant's contact with the forum state does not "count" toward the minimum required for jurisdiction under International Shoe unless that contact resulted from "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking *397 the benefits and protections of its laws." [FN60] "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." [FN61]

Purposeful availment made its first appearance in the Supreme Court's jurisdiction jurisprudence in the 1958 decision Hanson v. Denckla. [FN62] In imposing this requirement, the Hanson Court refused to place any weight on the evident fact that litigation in Florida would impose no practical burden on the defendant, a large Delaware trust company. [FN63] The restrictions on personal jurisdiction "are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him." [FN64]

Insofar as it can be said to have a basis in any principle, the Court's decision in Kulko v. Superior Court, [FN65] twenty years year after Hanson, turned on the Court's finding that a man who has sent his children to live with his separated wife in California "can hardly be said to have 'purposefully availed himself' of the 'benefits and protections' of California's laws." [FN66] "The cause of action herein asserted arises, not from the defendant's commercial transactions in interstate commerce, but rather from his personal, domestic relations." [FN67] Thus, the defendant has committed no act "that could reasonably render him liable to suit in state court." [FN68] In this opinion, the Court linked purposeful availment with "fairness," rather than state power, for the first time:

[A]ppellant did no more than acquiesce in the stated preference of one of his children to live with her mother in California. This single *398 act is surely not one that a reasonable parent would expect to result in the substantial financial burden and personal strain of litigating a child-support suit in a forum 3,000 miles away. . . . [FN69]

In World-Wide Volkswagen Corporation v. Woodson, [FN70] the Court combined Hanson's emphasis on state sovereignty with Kulko's asserted concern with fairness. [FN71] In World-Wide Volkswagen, the Court overruled an Oklahoma state court's assertion of jurisdiction over a New York retailer and New England regional distributor who had sold, in New York, a car that later caught fire in Oklahoma, allegedly as the result of a defective gas tank. [FN72] Because the car had reached Oklahoma through the "'unilateral activity' of those who claim some relationship with the nonresident defendant"- that is, the buyers of the car had driven it there-these defendants had no jurisdictionally significant contact with Oklahoma and could not be bound by a judgment of its courts. [FN73] In reaching this conclusion, the World-Wide Volkswagen Court stated:

The concept of minimum contacts. . . can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. [FN74]

The first purpose, described by the Court as "reasonableness" or "fairness," [FN75] required that the burden on the defendant of litigating in the forum state be measured against "other relevant factors, including the forum State's interest in adjudicating the dispute; the plaintiff's interest in obtaining convenient and effective relief. . . ; the interstate judicial system's interest in obtaining the most efficient resolution of *399 controversies; and the shared interest of the several States in furthering fundamental substantive social policies." [FN76]

As to the second purpose, the Court reiterated Hanson's lesson that the minimum contacts test preserves the "territorial limitations on the power of the respective states." [FN77]

Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. [FN78]

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However, although Hanson's introduction of purposeful availment was concerned entirely with preserving the territorial limits on a state's sovereignty, World-Wide Volkswagen discussed the two topics separately and linked the purposeful availment requirement, as the Kulko Court had, not to restrictions on a state's territorial sovereignty, but to the defendant's need to be able to predict where it might be sued. [FN79]

When a corporation "purposefully avails itself of the privilege of conducting activities within the forum State," it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. [FN80]

This foreseeability, which is "critical to due process analysis," insures that "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." [FN81]

World-Wide Volkswagen thus shifted the focus of the minimum contacts- purposeful availment inquiry from the question of whether the *400 defendant's relationship with the forum state was such that the state should be able to exercise coercive power over the defendant's person without exceeding the limits of its own sovereignty, to the very different question of whether the defendant should have been able to foresee suit in the forum state in advance of its occurrence. [FN82] After World-Wide Volkswagen, discussions of purposeful availment are always linked (rhetorically, if not logically) to the foreseeability of suit in the forum state. [FN83] The Hanson Court, however, did not even mention foreseeability; in Hanson the question was whether "the circumstances of this case amount to sufficient affiliation with the State of Florida to empower its courts to exercise personal jurisdiction over this nonresident defendant." [FN84]

The shift in emphasis from the state's power to the defendant's expectations was completed two years later in Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee, [FN85] which officially, but unnecessarily, severed the link between personal jurisdiction and the limits on state sovereignty. [FN86] Insurance Corporation of Ireland concerned the question of whether the constitutional protection embodied in the *401 personal jurisdiction analysis could be waived. [FN87] Writing for the Court, Justice White stated that the Due Process Clause:

is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected. [FN88]

The Due Process Clause, however, is not the only source of the personal jurisdiction requirement. The Court in Pennoyer found this requirement already resident in the common law, operating as a limit on one state's obligation to give a sister state's judgment full faith and credit (and thus, as a restriction on the sovereignty of the sister state) before going on to note that the defendant's right to insist that this requirement be met by any court seeking to deprive him of life, liberty, or property was now embodied in the Due Process Clause. [FN89] If limits on state sovereignty were no longer relevant to the personal jurisdiction analysis, there would be no need to focus it on defendant's contacts with the forum state. [FN90] The personal jurisdiction requirement preserves the limits on state sovereignty identified in Pennoyer by immunizing defendants from state efforts to overreach these limits to govern persons not subject to their sovereignty. As Justice White acknowledged, a defendant outside the limits of a state's sovereignty is nevertheless free to submit to its power, [FN91] but the defendant's ability to do so in no way undermines the sovereignty basis of the jurisdictional doctrine.

Once introduced, the notion of foreseeability quickly came to dominate the Supreme Court's personal jurisdiction jurisprudence. The outcomes of two 1984 cases of special relevance to potential cyberspace litigation, Keeton v. Hustler Magazine, Inc. [FN92] and Calder v. Jones, [FN93] resulted *402 directly from application of the foreseeability principle. In Keeton, the fact that a small portion of defendant's allegedly defamatory magazines circulated in New Hampshire was found to be a sufficient basis for jurisdiction, despite the fact that neither plaintiff nor defendant was a resident of the state. [FN94] Defendant having "continuously and deliberately exploited the New Hampshire market, it must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine." [FN95] Calder subjected not only the publisher of the National Enquirer, but also the Florida author and editor of an allegedly libelous article about actress Shirley Jones, to personal jurisdiction in California, Jones's home. [FN96] Jurisdiction over the author and editor was not based on their exploitation of the California market, as they had no direct economic stake in sales of the paper in that state. [FN97] However, because "they knew" their article would have an impact on Jones, and "they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works. . . . [P]etitioners must 'reasonably anticipate being haled into court there' to answer for the truth of the statements made in their article." [FN98]

This shift of focus from the forum state's power to the defendant's expectations was also entirely responsible for the Court's 1985 decision in Burger King Corporation v. Rudzewicz. [FN99] Writing for the majority, Justice Brennan announced at the outset of his opinion:

By requiring that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign, the Due Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. [FN100]

In Burger King, the fact that "Rudzewicz most certainly knew that he was affiliating himself with an enterprise based primarily in Florida" is essentially the only basis for affirming jurisdiction in Florida over a *403 Michigan accountant who had been persuaded by the son of a client to invest in a Drayton Plains, Michigan fast-food restaurant. [FN101] Although Rudzewicz had dealt exclusively with Burger King's Birmingham, Michigan regional office until the dispute underlying the lawsuit erupted, his knowledge that Burger King was headquartered in Miami gave him "fair warning" that his conduct would render him liable to suit there. [FN102]

Thus, after 110 years as a nonissue, the defendant's ability to foresee suit in the forum state grew in less than ten years to become the sine qua non of jurisdiction. In 1985, the minimum contacts test for personal jurisdiction stood as follows: minimum contacts with the forum state were required to subject a nonresident, nonconsenting defendant to suit there. A contact did not count toward the minimum unless it resulted from the defendant's purposeful availment of the benefits of the laws of the forum state; the purposeful availment requirement, devised to prevent states from overreaching federal limits on their sovereignty, had become a device for insuring that particular defendants would not be sued in unexpected places. Following Burger King, Keeton, and Calder, it appeared that reasonable defendants should expect to be sued in any state where a person with whom they had contracted was known to reside, [FN103] in any state where they intentionally sold allegedly offending products or services (even if that state formed only an insignificant part of a larger, undifferentiated market), [FN104] and in any state where a person they might have offended was known to live. [FN105] There remained, however, the nagging question raised, but not resolved, in World-Wide *404 Volkswagen of where the reasonable manufacturer of a defective product or component distributed by others should expect to be sued.

The World-Wide Volkswagen Court had distinguished the case before it, in which the allegedly defective product had been moved to the forum state by the ultimate consumer, from the situation in which a product is sold in the forum state as the result of "efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States." [FN106] Presumably, after Keeton, a manufacturer who sells, or uses distributors to sell, its product in the forum state will be subject to jurisdiction there, but the World-Wide Volkswagen opinion seems to go further, stating that "a State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." [FN107]

The Court thus indicated that the sale of a manufacturer's product in the forum state by retailers or distributors farther down the chain of distribution would not be the "unilateral activity of those who claim some relationship with" the manufacturer, and would constitute purposeful availment by the manufacturer. [FN108] That this is the Court's meaning is made somewhat clear by the citation to Gray v. American Radiator & Standard Sanitary Corp. supporting this assertion. In Gray, the Illinois Supreme Court found jurisdiction in Illinois over the Ohio manufacturer of a valve sold in Ohio to a Pennsylvania company that incorporated the valve into a water heater that exploded and injured the person who bought it in Illinois. [FN109]

What was not at all clear, however, was what the Court's new requirement of foreseeability could mean with respect to the facts of Gray. [FN110] It is one thing to ask, as the Hanson Court would have done, whether Illinois ought to be able, without exceeding the limits of its sovereignty, to adjudicate the obligations of persons who are alleged to have caused explosions in Illinois, or who derive income, if indirectly, from the exploitation of the Illinois market for water heaters; it is *405 another thing entirely to ask whether, by selling a radiator valve in Ohio to a Pennsylvania company, a manufacturer can or should foresee being sued in Illinois. Foreseeability in this situation is entirely a function of how the Court answers the first question. [FN111] Foreseeability, in other words, had become as much a fiction as "presence" once was.

The Supreme Court granted review of Asahi Metal Industry Co., Ltd. v. Superior Court [FN112] in an explicit effort to clarify the meaning of purposeful availment in the stream of commerce situation. Justice O'Connor, writing for a plurality of four justices, three of whom remain on the court, [FN113] urged that purposeful availment and, therefore, minimum contacts and jurisdiction, could only be found where the defendant had taken some action "purposefully directed at the forum State." [FN114] Somewhat disingenuously, Justice O'Connor described World-Wide Volkswagen as rejecting the concept that mere awareness that one's product could cause injury in the forum state was a sufficient basis for jurisdiction. [FN115] She quoted World-Wide Volkswagen's statement that, "if the sale of a product. . . arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product," jurisdiction where it causes injury is proper, but she conveniently omitted the citation to Gray that supported this statement in World-Wide Volkswagen. [FN116] Justice O'Connor argued that the purposeful placement of a product into the stream of commerce with the awareness that it would eventually be swept into the forum state would not constitute purposeful availment of the benefits offered by the forum state without some further activity such as customizing the product for the forum market, advertising in the forum state, employing a local distributor, or *406 providing continuing service for the product in the forum state. [FN117] This, however, is not a plausible interpretation of the facts of Gray, which is why World-Wide Volkswagen's approving citation to Gray, which Justice O'Connor lacked the votes to overrule, had to be overlooked.

The plurality opinion in Asahi thus constituted a further step in the direction of limiting a state's power to bind persons to a judgment by the subjective expectations of the persons it hopes to bind. Under Justice O'Connor's view, a defendant component manufacturer is subject to jurisdiction in the forum state only if it intends to exploit the market in that state and manifests this intent through observable conduct beyond merely selling the component to another manufacturer elsewhere. [FN118] Inasmuch as the products at issue in Asahi were motorcycle tire valve assemblies, which required no particular service, did not lend themselves to advertising, and were not distributed separate from the tires into which they were incorporated, application of this requirement would have the effect of insulating Asahi-and any manufacturer of a generic component part, no matter how widely distributed (or how dangerous)-from jurisdiction where the part caused injury. [FN119]

Because the Court no longer links "purposeful availment" to the limits on state sovereignty, Justice O'Connor did not try to explain why a defendant's subjective intent should determine the forum state's power to act against that defendant when its product disrupts the domestic *407 tranquillity of the state. [FN120] Nor, in fact, did this portion of the plurality opinion link its requirement of purposeful direction to any particular constitutional principle or policy goal beyond its general invocation of due process. [FN121]

Instead of explaining why sales plus some other purposeful activity directed at the forum state should be required for jurisdiction, Justice O'Connor went on, at this point writing for the Court, to conclude that California's exercise of jurisdiction over Asahi "would offend traditional notions of fair play and substantial justice." [FN122] To reach this conclusion, Justice O'Connor invoked the five factors set forth in Burger King to be considered "[o]nce it has been decided that a defendant purposefully established minimum contacts within the forum State:" [FN123] "'the burden on the defendant,' 'the forum State's interest in adjudicating the dispute,' 'the plaintiff's interest in obtaining convenient and effective relief,' 'the interstate judicial system's interest in obtaining the most efficient resolution of controversies,' and the 'shared interest of the several States in furthering fundamental substantive social policies."' [FN124] Because five justices who did find or would have found minimum contacts on the facts of Asahi [FN125] nonetheless concurred in the portion of the opinion holding that the Burger King reasonableness factors rendered the assertion of jurisdiction unfair, [FN126] it can be inferred that these considerations no longer motivate the minimum contacts test itself, or explain its emphasis on foreseeability. Originally proposed as the *408 measure of "traditional notions of fair play and substantial justice," [FN127] minimum contacts now appear to be something separate from and independent of these notions. [FN128] By including "burden on the defendant" in the reasonableness wing of the analysis, and by both disclaiming any basis for the doctrine in state sovereignty, and including among the reasonableness factors considerations of forum and interstate substantive and procedural interests, Asahi leaves the question of what purpose is served by minimum contacts, purposeful availment, and the foreseeability presumed to result from them, more in doubt than ever. [FN129]

Evidently, foreseeability of some sort is an independent interest pro- tected by due process. But Asahi does not make at all clear what sort of "foreseeability" due process requires, or why. [FN130] World-Wide Volkswagen distinguished the defendant's ability to foresee the arrival of its product in the forum state, or even the possibility that the product might do injury there, from the ability to predict that the product would be sold in the forum state and, through its citation to Gray, designated that third kind of foreseeability as one that would require defendant to expect to be haled into court in the forum state. [FN131] Justice O'Connor rejected the Gray variety of foreseeability as insufficient for jurisdiction, instead de-manding yet another kind of foreseeability- the predictability that flows from intentionally targeting the forum state with one's efforts to market a product. [FN132] Moreover, Justice O'Connor did not explain why this sort of particularized foreseeability is required in the stream of commerce, product liability area, when the publisher of a magazine with undif-ferentiated nationwide distribution must foresee defamation suits in *409 every state. [FN133] In the absence of a coherent jurisdictional rationale, there is no principled way to choose among these different hypothetical-but, evidently, constitutionally significant-degrees of clairvoyance.

Ironically, the minimum contacts test originated as a device for freeing personal jurisdiction doctrine from the problems posed by apply-ing territorial notions of "presence" to actions involving corporations, whose presence anywhere is entirely fictional. [FN134] As a practical matter, these restraints had already fallen through use of the fiction that a cor-poration doing business in a state was present there and, thus, subject to jurisdiction in the courts of that state. [FN135] What International Shoe did was absolve courts of the obligation to engage in the fictional inquiry into corporate presence. [FN136] Over the years, the minimum contacts analysis devised by International Shoe as a surrogate for the fiction of presence has evolved into a test for an equally fictional "foreseeability." Rather than acknowledge that foreseeability, too, is increasingly a fiction in modern commercial life, Justice O'Connor's proposed "sales plus" test attempted anachronistically to refocus attention on the intentional crossing of territorial boundaries-to insure foreseeability through insistence on a kind of fictional presence.

The renewed focus on the crossing of state territorial boundaries was raised to still greater and, some would argue, more absurd heights in Burnham v. Superior Court. [FN137] Defendant Burnham, a New York resident, was served with a summons in his wife's California suit for divorce while he was in the state for a week. [FN138] Burnham argued that he was not amenable to jurisdiction because he lacked minimum contacts with California, [FN139] but his motion to quash service was denied because his *410 mere presence in the state when served with the process of its courts subjected him to jurisdiction. [FN140] The Supreme Court upheld jurisdiction over Burnham: Justice Scalia [FN141] because jurisdiction based on transient presence is traditional, [FN142] Justice Brennan [FN143] because it is fair, [FN144] and Justices White and Stevens because, as applied to Burnham, it was not unfair. [FN145] Not surprisingly, Justice Brennan's determination that a rule of transient jurisdiction is fair relied, in part, on its predictability; because of this rule, a defendant voluntarily present in a state has "clear notice" of his amenability to suit there. [FN146] This assertion of the importance of predictability is the only part of Justice Brennan's concurring opinion with which Justice Scalia agreed. [FN147]

Thus, the Supreme Court's growing emphasis on a defendant's ability to foresee suit in the forum state has driven the Court to rely even more heavily on the very state lines Insurance Corporation of Ireland seemed to render irrelevant. [FN148] As a result, as state territorial boundaries recede from the consciousness of persons doing business in the increasingly interconnected late twentieth- century world, they become more pro-minent in the Supreme Court's increasingly anachronistic jurisdictional jurisprudence. [FN149]

As the Supreme Court has intensified its focus on intentional presence within geographic boundaries, commerce and communications have moved into cyberspace. With the advent of increasingly powerful and affordable desktop computers, more and more "user friendly" interfaces between consumers and material available on the Internet, and more secure methods of consummating commercial transactions through computer connections, new users and new uses have flooded onto computer networks once the province of defense strategists, computer scientists and scholarly researchers. Much of the new activity on the Internet has been commercial-advertising, market research, financial transactions, and product sales are now commonplace, particularly on the World Wide Web, the most graphical and, given the right equipment, accessible aspect of the Internet-and much of it is now in the hands of major corporations. [FN150] With this activity come disputes over money, and with disputes over money come lawsuits.

To date, cyberspace-based jurisdiction cases have tended to resemble more earth-bound actions. For example, all courts to consider the question have found that the mere fact that a defendant operates a site on the World Wide Web, accessible to anyone in the forum state with a computer and web browser, does not, without more, subject the defendant to general personal jurisdiction; that is, such a digital presence, like advertising in a national publication, does not constitute continuous and substantial contacts with the forum state that would permit jurisdiction over claims unrelated to this contact. [FN151] Similarly, *412 where the Internet or other forms of computer- mediated communica-tions are used in the place of face-to-face, mail, fax, or telephone communications between parties dealing with each other across state lines, courts tend to give these contacts no more or less weight than would be given to their nondigital equivalents. [FN152] A California broker who transmits fraudulent misrepresentations to a resident of Connecticut in order to induce the resident to buy securities will be subject to jurisdiction in the ensuing Connecticut state securities fraud action whether the misrepresentations are made by letters, telephone calls, or electronic mail. [FN153] As one court recently commented, "[t]here is no reason why the requisite minimum contacts cannot be electronic." [FN154]

Where the Internet begins to be involved in the character of the underlying dispute, rather than simply facilitating communications between the parties about their otherwise mundane transactions, courts begin to find the resolution of cyberjurisdiction questions more difficult. [FN155] CompuServe Incorporated v. Patterson [FN156]and Pres-Kap, Inc. v. System One, Direct Access, Inc. [FN157] are examples of this phenomenon. In some respects, these cases are the cyberspatial equivalent of Burger King Corporation v. Rudzewicz: [FN158] each involved a dispute between parties to a *413 long-term contractual relationship; each concerned jurisdiction over a defendant who knew or could have known where the plaintiff was headquartered but who, until being sued there, had no reason to care. In a telling demonstration of the unpredictability (and expense) of the jurisdictional calculus, the trial courts in CompuServe and Pres-Kap reached opposite conclusions with respect to jurisdiction, and each was reversed on appeal. [FN159]

From his home in Texas, Patterson [FN160] entered into an on-line [FN161] "Shareware Registration Agreement" [FN162] with CompuServe, a computer information service headquartered in Columbus, Ohio. [FN163] Pursuant to this contract, Patterson uploaded software onto CompuServe's computer to be downloaded and, in some cases, paid for by other CompuServe subscribers. [FN164] CompuServe was Patterson's exclusive means of marketing his software; [FN165] over the course of three years, he made software sales to twelve Ohio residents and an unspecified number of other CompuServe subscribers. [FN166] When CompuServe began to market a software program similar to Patterson's, Patterson threatened to sue CompuServe for unfair competition and infringement of his common law trademarks. [FN167] Instead, CompuServe sued Patterson for declaratory relief in the United States District Court for the Southern District of Ohio. [FN168] Patterson moved to dismiss the action for lack of personal jurisdiction, and the district court granted his motion. [FN169]

*414 In reversing, the Sixth Circuit first noted that the Ohio long-arm statute permitted an Ohio court to exercise jurisdiction over any out-of-state defendant "transacting any business in Ohio." [FN170] Commenting that "it is settled Ohio law. . . that the 'transacting business' clause of that statute was meant to extend to the federal constitutional limits of due process," [FN171] the court proceeded directly to an analysis of whether Patterson had minimum contacts with Ohio. [FN172] The court was thus able to dodge the trickier question of whether uploading software in Texas is "transacting business" in Ohio, in favor of a more amorphous inquiry into whether Patterson had "cause[d] a consequence in the forum state." [FN173] The court concluded that "Patterson deliberately set in motion an ongoing marketing relationship with CompuServe, and he should have reasonably foreseen that doing so would have consequences in Ohio." [FN174] Applying a three-pronged test devised by the Sixth Circuit to digest the U.S. Supreme Court's more sprawling jurisdictional analysis, [FN175] the court found that Patterson purposefully availed himself *415 of the privilege of acting or causing consequences in Ohio both by employing CompuServe to market his software, and by threatening to sue CompuServe; [FN176] that CompuServe's cause of action against Patterson arose out of Patterson's activities in Ohio; [FN177] and that the assertion of jurisdiction over Patterson in Ohio was reasonable, despite the admitted burden imposed on Patterson, because "he knew when he entered into the Shareware Registration Agreement with CompuServe that he was making a connection with Ohio, and presumably he hoped that connection would work to his benefit." [FN178]

Patterson did not brief the appeal, and, in reaching its decision, the Sixth Circuit did not consider Patterson's affidavit in support of his motion to dismiss. [FN179] The Sixth Circuit relied heavily on Patterson's presumed knowledge that he had entered into a contract with an Ohio company, to be governed by Ohio law, but there is no reason to suppose Patterson was actually aware of these jurisdictional facts. [FN180] Few CompuServe subscribers know where CompuServe is located [FN181] and fewer still read electronic "contracts" before agreeing to them, particularly in such depth that they would notice a provision specifying governing law. [FN182] Nevertheless, Patterson did voluntarily affiliate himself with a known commercial entity, CompuServe, whose location Patterson could have discovered had he been so inclined. [FN183] Patterson's *416 relationship with Ohio fits comfortably within the pattern establishing jurisdiction over Rudzewicz in Florida in Burger King; indeed, the case for jurisdiction over Patterson may be stronger than in Burger King because Patterson actually intended to sell his product in Ohio and all other states, while Rudzewicz presumably contemplated no burger sales outside Michigan. [FN184]

Providing a contrast to CompuServe, the District Court of Appeal of Florida in Pres-Kap, Inc. v. System One, Direct Access, Inc., [FN185] reversed a trial court determination that it had jurisdiction over Prestige Travels, a Rockland, New York travel agency sued by a Florida computerized airline reservation system. [FN186] As in CompuServe, the defendant contracted to make use of a computer system in the forum state for its own commercial advantage. [FN187] Pres-Kap resembles Burger King fairly closely in that Pres-Kap deliberately entered a long-term commercial relationship with a citizen of Florida, even making use of equipment supplied fromFlorida. [FN188] But while the courts in both CompuServe and Burger King placed heavy reliance on the terms of the contracts connecting the parties-for example, in each case, the contract provision designating forum law was held out as a key factor that should have led the defendant to anticipate suit in the forum state [FN189]-the Pres-Kap opinion is silent as to the terms of the contract between the parties, except to note that the last of three contracts between the parties did not contain a forum selection clause designating Florida [FN190] (which, however, was also true of the Burger King contract). [FN191] Instead, the Pres-Kap court placed weight on the fact that "[t]here is no showing on this record that the defendant was even aware of the exact electronic location of the subject computer database, as this clearly would have been of little importance to it," [FN192] an observation as *417 true of Patterson as of Prestige Travel. A "contrary decision," the court warned, anticipating CompuServe and no doubt concerned about its own use of LEXIS and Westlaw, [FN193] would "have far-reaching implications for business and professional people who use 'on-line' computer services for which payments are made to out-of-state companies where the database is located." [FN194]

In both CompuServe and Pres-Kap, a defendant making use of computer- mediated communication facilities was sued in the state where the computer was located; in each case, however, the plaintiff, with whom defendant had contracted for use of the computer, was also headquartered in the forum state. [FN195] What if only the computer, or only the plaintiff, resides in the forum state? The former question found an unexpected resolution in Krantz v. Air Line Pilots Association, [FN196] and the latter in California Software Inc. v. Reliability Research, Inc. [FN197]

The Virginia Supreme Court in Krantz found jurisdiction over the author of a statement alleged to have interfered with plaintiff's prospective contract, not in Vermont, where the plaintiff resided, or in Colorado, where the statements caused injury, or in the various states where they were received by third parties, or even in New York, where defendant made the statements, but in Virginia, where the computer mediating the communication was located. [FN198] Krantz was an airline pilot and member of the Air Line Pilots Association (ALPA) living in Vermont. [FN199] When Krantz withdrew from participation in a strike against his then employer Eastern Air Lines, ALPA placed his name on a "scab" list posted on a computer bulletin board service (BBS) in an electronic switchboard system known as ACCESS. [FN200] ACCESS was maintained on a computer operated by ALPA at its headquarters in *418 Herndon, Virginia. [FN201] The BBS was used by ALPA members and staff only; ALPA controlled the content of any messages posted there. [FN202]

In September 1989, [FN203] Krantz applied for a job with United Air Lines and, after a successful screening interview, was advised that he would be called for a final interview shortly. [FN204] Learning of Krantz's potential employment with United, Richard Nottke, an Eastern Pilot and ALPA member, typed a message on his personal computer in New York calling on ALPA members at United and elsewhere to pass the word that Krantz was a scab, and transmitted this message to ACCESS for posting on ALPA's BBS. [FN205] As the result of the publication of Nottke's message and ALPA's scab list, United received over three hundred adverse comments about Krantz at its Flight Officer Employment Office in Denver, Colorado. [FN206] United called off its negotiations with Krantz. [FN207] Krantz sued ALPA and Nottke in Virginia for intentional interference with his prospective contract of employment with United. [FN208]

Nottke moved to dismiss the action for lack of personal jurisdiction, contending that he had not caused any "tortious injuryby an act or omission in" Virginia as required by Code of Virginia s 8.01-328.1(A)(3). [FN209] The trial court granted Nottke's motion, but the Virginia Supreme Court reversed, holding:

To execute his plan, Nottke needed other persons to communicate his message to United, Krantz' prospective employer. . . . Without the use of ACCESS, a Virginia facility, Nottke could not have obtained those recruits, and there would have been no interference with Krantz' prospective contract. . . . Thus, Nottke's use of ACCESS in Virginia as a means of furthering his plan to block Krantz' employment was "an act. . . in this Commonwealth" within the meaning of Code s 8.01-328.1(A)(3). [FN210]

*419 Having thus concluded that, by transmitting his message from New York, Nottke had "engaged in a purposeful activity in Virginia," the court decided that due process was satisfied as well. [FN211]

The court's ruling in the Krantz case seems right, although the reasoning is almost certainly wrong. The significance of Virginia in the Krantz case should have been that it was the state where Nottke's co-defendant ALPA was headquartered. [FN212] ALPA acted, in effect, as Nottke's agent in transmitting his message to all of its members by use of its BBS [FN213] and did so in coordination with its own campaign against persons deemed to be scabs. [FN214] If Nottke had mailed his message to ALPA headquarters with the request that ALPA forward it to all members, he could easily be held to have acted in Virginia (by his agent, ALPA) so as to cause tortious injury to Krantz and, thus, to fall within the terms of the long-arm statute. The fact that ALPA was able to provide the same assistance to Nottke through its BBS should not change the analysis. In this respect, Krantz resembles, or should resemble, CompuServe and Pres-Kap: the jurisdictional analysis depends on the defendants' interaction with a person in the forum state, not a machine.

The Virginia Supreme Court's reasoning in the Krantz case is troubling in its focus on the physical location of the computer by means of which Nottke's message was disseminated as a basis for jurisdiction. Suppose that, instead of communicating with the ALPA members by means of ALPA's BBS, Nottke had sent each of them a copy of his message by Federal Express. In 1989, most Federal Express packages, regardless of origin or destination, were routed through Memphis, Tennessee. [FN215] Would Nottke in New York then be subject to jurisdiction in Tennessee because, but for his use of Federal Express's Memphis *420 sorting facility, he could not have interfered with a contract between Krantz in Vermont and United in Denver?

The extension of the Krantz court's reasoning to communications made over the Internet would lead to bizarre results. Most users of computer bulletin boards have some idea where the computer hosting the bulletin board is located because they must dial that computer's telephone number to access the computer bulletin board. If, instead of using ALPA's BBS, Nottke had posted his message to an electronic mailing list for the discussion of topics of interest to pilots or to labor union members, this last, already tenuous link to geography essentially would have been severed. Subscribers are, of course, aware that each mailing list is maintained on a computer somewhere, and the actual location of the computer running any list can generally be determined with a little effort. The point, however, is that users have no reason to care where the computers operating their mailing lists are located. Not only would Nottke have no reason to know where the computer serving his mailing list might be located, but that computer would also not be the only one essential to his ability to carry out his scheme to interfere with Krantz's contract. If Nottke were to post his message to a mailing list, he would probably obtain access to the mailing list computer by way of one or more intermediate computers. [FN216] The location of any of these intermediary computers would likely be unknown and, practically speaking, unknowable to Nottke. By the Krantz court's reasoning, however, if any one of these computers happened to be in Virginia, Nottke could be subject to jurisdiction there.

Like Krantz, California Software [FN217] demonstrates how easily the availability of computer mediated communications can transform what might have been a localized quarrel into an interstate or international jurisdictional nightmare. In California Software, the earliest reported *421 cyberjurisdiction case, defendants, citizens of Nevada, Vermont and Connecticut, allegedly used a national computer network operated from Texas to make false statements about the California plaintiff to persons in Washington, New York, and Canada. [FN218] Plaintiff sued in federal court in California, seeking damages for intentional interference with business advantage, libel, slander, and other intentional torts. [FN219] Citing Calder v. Jones, [FN220] the court held that the defendants "knew that plaintiffs would feel the brunt of the injury, i.e., the lost income, in California." [FN221] Thus, by communicating outside California with other persons outside California for the purpose of preventing these persons from making contact with California, the defendants established minimum contacts with California. [FN222] Because plaintiff California Software was a California resident, defamatory electronic statements directed to persons outside California had foreseeable effects in California and, thus, subjected the posters of the statements to jurisdiction in that state. [FN223]

Although CompuServe, Pres-Kap, Krantz, and California Software concerned events or communications taking place, in whole or in part, in cyberspace, each involved parties whose awareness of each other's existence predated the dispute underlying the lawsuit. Patterson knew he was dealing with CompuServe, whether or not he knew where CompuServe was located; [FN224] Nottke orchestrated a protest specifically directed at Krantz. [FN225] An increasing number of cyberspace-based disputes, however, involve parties who may have no prior knowledge of each other's existence. The paradigm of these cases, to date, may be the domain name dispute. [FN226]

A domain name is a textual string used to identify the "Internet protocol" or "IP" address of a particular computer or network of computers on the Internet. Domain names are easier to remember (and to type) than the computer- readable strings of digits for which they substitute. [FN227] In many cases, an entity's domain name includes the entity's own name or a form thereof; for example, ibm.com is IBM's domain name. Typing "www.ibm.com" into a web browser is a much quicker, easier, and more reliable way to find IBM's web page than relying on an Internet search engine, which is likely to turn up not only the page sought, but several thousand others as well. [FN228] No two domains *423 can have the same name, any more than two telephone lines can have the same number.

Domain names are controlled by InterNIC (Internet Network Information Center), which is a cooperative project under the auspices of the National Science Foundation. Names are registered by Network Solutions, Inc. (NSI). [FN229] Until recently, NSI would register any domain name not already registered to another user. Thus, mcdonalds.com was originally registered, not to the McDonald's fast-food restaurant giant, but to Joshua Quittner, a writer for WIRED magazine, who registered the domain name to prove a point about NSI's registration system. [FN230] Quittner persuaded McDonald's to donate money to charity in return for the rights to mcdonalds.com. [FN231] Other "domain name grabbers" [FN232] or "cybersquatters" [FN233] were less altruistic, however. Dennis Toeppen, for example, registered panavision.com, frenchopen.com, lufthansa.com, eddiebauer.com,and yankeestadium.com, among other domain names, and was sued by the holders of trademarks similar to these names when he demanded to be paid to relinquish his registrations. [FN234] Other domain name disputes arise when the holder of a trademark attempts to register a domain name based on the trademark, only to find that the name is already in use. For example, Clue Computing, Inc. (CCI), a computer consulting firm, registered the domain name clue.com in 1994, and has maintained its World Wide Web site at http://www.clue.com ever since. [FN235] In 1996, Hasbro, Inc., holder of the trademark in the board game "Clue," complained to NSI *424 that CCI's domain name infringed its trademark. [FN236] NSI threatened to withdraw CCI's registration, but CCI obtained an injunction against NSI in Colorado state court. [FN237] Hasbro retaliated by filing an action against CCI in the District of Massachusetts, which is still pending as this Article goes to press. [FN238]

As suggested by the clue.com dispute, domain name clashes arise when multiple uses of the same name, widely separated both geographi-cally and conceptually, are suddenly brought together in the same "space" on the Internet. There would, for example, be little chance that the manufacturer of Zippo cigarette lighters in Pennsylvania would even know of the existence of Zippo Dot Com of Sunnyvale, California (Dot Com), operator of Zippo's News Service, but for the presence of Dot Com's site on the World Wide Web. In Zippo Manufacturing Co. v. Zippo Dot Com, Inc., [FN239] however, the United States District Court for the Western District of Pennsylvania found that it had jurisdiction over the defendant, whose offices, employees, and computers are located in California, because the defendant "[c]ontract[ed] to supply services or things in this Commonwealth" within the meaning of the Pennsylvania long-arm statute. [FN240] It was undisputed that Dot Com contracted to supply Internet news services to approximately three thousand Pennsylvania residents and also entered into agreements with seven Pennsylvania Internet access providers. [FN241] The Zippo court summarily *425 rejected the defendant's argument that its contacts with Pennsylvania were "fortuitous" and, thus, insignificant under World-Wide Volkswagen, because they were unsolicited by defendant and initiated by Pennsylvanians who happened upon its web page in cyberspace: [FN242]

Dot Com repeatedly and consciously chose to process Pennsylvania residents' applications and to assign them passwords. Dot Com knew that the result of these contracts would be the transmission of electronic messages into Pennsylvania. . . . If Dot Com had not wanted to be amenable to jurisdiction in Pennsylvania, the solution would have been simple-it could have chosen not to sell its services to Pennsylvania residents. [FN243]

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By focusing its attention exclusively on the defendant's contacts with Pennsylvania, the Zippo court both obscures and highlights the dilemma of truly Internet-based jurisdictional disputes. Perhaps the defendant could have avoided jurisdiction in Pennsylvania by refusing to accept subscriptions from any Pennsylvania residents (although, under Calder and California Software, it would also have to be sure to avoid publishing any false statements about Pennsylvania residents). But the defendant had no particular reason to fear jurisdiction in Pennsylvania until it was sued there. What the Zippo court is really saying is that the only way for a defendant to avoid jurisdiction anywhere in the networked world is not to do business on the Internet at all.

The Zippo court devised a framework for analyzing Internet jurisdiction cases according to the degree of commercial activity conducted by defendants through their Internet contacts with the forum state. [FN244] The more sales made, or deals closed, by means of a defendant's Internet contacts with the forum state, the more likely the finding of jurisdiction over that defendant. [FN245] Although it fails to account for the outcome of a number of cyberjurisdiction cases, [FN246] this framework has been adopted by several other courts. [FN247]

However, merely refusing to close deals with persons in the forum state who respond to one's Internet advertising might not insulate a defendant from jurisdiction. In Heroes, Inc. v. Heroes Foundation, [FN248] the New York defendant was found to be subject to jurisdiction in a District of Columbia trademark infringement action due to its Internet advertising, without any discussion of whether any residents of the District of Columbia had seen or responded to the web site. [FN249] The defendant in Heroes had also advertised in a nationally distributed Procter and Gamble advertising supplement included in the Washington Post. [FN250] The Heroes court treated the newspaper ad in the same way it did the web site; only the fact that it reached the forum was considered relevant, and the court did not ask whether any residents of the District read the ad or made contributions as a result of it. The fact that the very same activity brought defendant's ad to the entire country, or entire planet, did not prevent the court from finding that defendant "ha[d] purposefully availed itself of the privilege of conducting activities within the District, and could reasonably anticipate the possibility of being haled into court there." [FN251] In other cases on similar facts, a defendant's evident expectation that its communication may be received anywhere on the planet is itself taken as proof it should expect to be sued in the forum state. In American Network, Inc. v. Access America, [FN252] for example, an Internet service provider located in Alpharetta, Georgia was found to be subject to jurisdiction in New York City, in part because it "stated twice on its home page that it could help customers 'across the U.S."' [FN253]

Ultimately, domain name disputes and the jurisdictional puzzles associated with them may not turn out to be representative of cyberspace-based litigation. The fact that, as this Article goes to press, domain name disputes make up the bulk of cyberjurisdiction cases *427 results from the fact that most trademark litigation takes place in federal court [FN254] where trial court interlocutory opinions are often published. Most domain name disputes have resulted in a finding of jurisdiction in the plaintiff's home state. [FN255] Courts considering these matters have generally held that trademark infringement "takes place where confusion is likely to occur," [FN256] and that in the case of infringement over the Internet, that place is anywhere the allegedly offending name or mark can be seen. [FN257] Moreover, the contact itself constitutes the wrong; unlike many jurisdictional puzzles arising from (nondefamatory) national advertising, where no harm occurs until someone is injured by a defective product bought or an unsafe resort visited in reliance on the ad, the arrival of the allegedly infringing publication in the forum state itself creates the harm. [FN258] Under the reasoning of Keeton v. Hustler, [FN259] therefore, defendants who infringe trademarks over the Internet should foresee suit in any state; [FN260] in most cases, however, because plaintiffs sue in their own home states, Calder v. Jones [FN261] provides additional support for jurisdiction. [FN262] Although, except for cybersquatters like Toeppen, defendants in domain name disputes seem generally astonished that anyone might have a right to complain about their domain names, [FN263] it is at least theoretically possible for these defendants to locate their potential plaintiffs-the holders of registered trademarks in words they *428 intend to use in their domain names-and determine in advance where they might be subject to suit. [FN264]

While they have not yet given rise to much published case law, it is not hard to imagine cyberspace-based disputes in which the parties' location in the real world is neither known nor knowable in advance of the dispute. Indeed, the Sixth Circuit in CompuServe outlined two such possible cases in order to define the limits of its holding:

We need not and do not hold that Patterson would be subject to suit in any state where his software was purchased or used. . . .We also do not have before us an attempt by another party from a third state to sue Patterson in Ohio for, say, a "computer virus" caused by his software, and thus we need not address whether personal jurisdiction could be found on those facts. [FN265]

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Sellers of software over the Internet need never know who is buying their products or where the buyers might be located. The processes of advertising the software (by means of a web page available to any user in the world connected to the Internet), obtaining payment (through the use of credit cards or electronic fund transfers), and delivering the product (by authorizing access for downloading) can be entirely automated. [FN266] Where does such a vendor reasonably foresee being haled into court? Into which states does the vendor purposefully direct his activity? Must the reasonable vendor, as suggested by the Zippo court, make efforts to avoid sales to persons from undesirable fora who happen upon his web page? [FN267] It may be that the answer to this question *429 depends upon how strictly courts are willing to enforce the plaintiff's burden of alleging and proving grounds for jurisdiction.

In E-Data Corp. v. Micropatent Corp., [FN268] the court found that the plaintiff had failed to carry its burden to allege facts demonstrating that defendant had done any business with persons in the forum state. The defendant permitted users to download photographic images from its World Wide Web site after payment, by credit card, of a licensing fee. [FN269] All transactions were anonymous from the defendant's point of view and no record of individual credit card numbers were kept. [FN270] In short, the information relevant to the question found determinative by the Zippo court-the degree to which defendant conducted commercial activity through the Internet with residents of the forum state-was simply unavailable. Relying on the plaintiff's burden to allege facts supporting personal jurisdiction over defendant, the E-Data court granted the defendant's motion to dismiss. [FN271]

By contrast, the court in SuperGuide Corp. v. Kegan [FN272] was willing to assume all necessary jurisdictional facts with very little assistance from plaintiff. [FN273] The plaintiff demonstrated that the defendant solicited business through its World Wide Web page, [FN274] but not whether any residents of the forum state had ever accessed that page, requested follow-up information from the defendant, or contracted with the *430 defendant for its credit card services. [FN275] Nevertheless, the court found that it was reasonable to infer these facts, [FN276] and to base its finding of jurisdiction on that foundation. [FN277]

Perhaps a government sufficiently determined to impose jurisdiction could induce cybersellers to identify and screen the location of their buyers before concluding sales, thus vitiating what many see as the main advantage of Internet communications, the freedom from geographic restraints. There would still be incidents of unintentional harmful conduct, however, in which the location of potential plaintiffs would be not only unknown, but unknowable to defendants hoping to "structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." [FN278]

A perfect example of such a problem already exists in the case of the Internet Worm. In 1988, Robert Tappan Morris, Cornell graduate student and son of a respected, and no doubt embarrassed, official with the National Security Agency's Computer Security Center, [FN279] released a "worm" [FN280] from a computer at the Massachusetts Institute of Technology into the Internet. [FN281] According to findings made in Morris's criminal trial for violation of s 2(d) of the Computer Fraud and Abuse Act of 1986, [FN282] the worm was designed to spread itself across the Internet by obtaining unauthorized access to each computer on the network, and then making use of that computer to obtain access to all computers with which the first computer exchanged e-mail, leaving a single copy of itself in the memory of every computer it encountered. [FN283] Morris created and *431 released the worm in order to demonstrate that the many defense and educational computers connected to the Internet were vulnerable to invasion and injury by computer hackers; Morris's worm, therefore, was intended to be harmless and to reside unnoticed on each host until the next time that computer was shut down, at which time the worm would be erased. [FN284] Unfortunately, although the worm distributed itself to hundreds of computers around the country as Morris had intended, it exhibited unexpected aggressiveness once it took up residence on a new computer; instead of making a single copy of itself in each computer, the worm copied itself over and over again everywhere it went until it had taken up all available memory in each host computer. [FN285]

Morris was criminally prosecuted, [FN286] but he could easily have been the target of civil suits as well. [FN287] His worm caused damage ranging from $200 to over $50,000 in thousands of computer labs across the country- Purdue University in Indiana and the University of Southern California and the National Aeronautics and Space Administration's Ames Research Center, both in California, were among the victims of the worm's depredations. [FN288] Morris himself was in Ithaca, New York when he released the worm; he inserted the program onto the network by way of a telephone connection with a computer at M.I.T. in Cambridge, Massachusetts. [FN289] He had no way of knowing where the worm would travel from there, and no expectation that it would have *432 any foreseeable effects wherever it did go. [FN290] If Purdue wanted to sue Morris to recover the costs it incurred when Morris's worm crippled its computers, could it hale him into court in Indiana? [FN291] How would the Indiana court go about deciding whether it had jurisdiction over Morris?

The question of whether Morris is subject to personal jurisdiction in Indiana, like the question of whether the cyberseller of software is subject to jurisdiction wherever his product is purchased and malfunctions, is likely to come down to an all or nothing determination-he is either subject to jurisdiction everywhere in the world, or only at his own desk. [FN292] Which is it to be? To answer this question it is necessary to know what the doctrine of personal jurisdiction is meant to accomplish-from what, exactly, is this aspect of due process meant to protect the defendant?

According to the Supreme Court, the minimum contacts test of International Shoe performs, or should perform, two functions: "It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." [FN293] Over time, the *433 former purpose has received greater emphasis than the latter, but neither purpose is well-served by the doctrine in its current form.

If the point of personal jurisdiction is to protect defendants from litigation in an inconvenient forum, why do so many jurisdictional disputes involve adjacent states? A substantial number of published personal jurisdiction cases, for example, involve defendant residents of Philadelphia hoping to escape the jurisdiction of courts in New Jersey. [FN294] All of New Jersey is within a few hours' drive of Philadelphia. Even cyberspace-based jurisdiction cases often involve little actual inconvenience to protesting defendants; in a recent domain name dispute, defendant Ari Goldberger (operator of esqwire.com) of Cherry Hill, New Jersey, persuaded a magistrate judge that the Hearst Corporation (publisher of Esquire magazine) could not sue him fifty miles away in the Southern District of New York. [FN295] Instruction Set, Inc. of Massachusetts has devoted considerable legal resources to avoiding suit by Inset Systems, Inc. in the District of Connecticut, [FN296] while Basis International Ltd., a New Mexico software developer, objects to being sued by its German and Dutch licensees in Arizona. [FN297] None of these challenges is laughed out of court, but none includes a defendant faced with either a distant forum or any real inconvenience. An analysis truly intended to protect defendants from litigation in an inconvenient forum would not consider state lines but would, instead, be concerned with factors such as a defendant's wealth and the distance *434 between the court and the defendant's home. [FN298] These facts, however, almost never form the bases of jurisdictional rulings. [FN299]

Moreover, in its current form, the jurisdictional analysis addresses inconvenience to the defendant, if at all, as an afterthought; once it has been shown that the defendant has purposefully established contacts with the forum state, jurisdiction may be (but seldom is) denied if the burdens of litigation for the defendant are too severe. [FN300] Far from motivating the inquiry, the potential burden on the defendant is ordinarily dismissed with a reference to modern air travel and telecommunications, [FN301] or to other devices available to protect defendants from litigation in inconvenient fora. [FN302]

Where litigation in the forum state is so burdensome that defendants may actually have no meaningful opportunity to defend themselves, the doctrine of personal jurisdiction offers them little protection. [FN303] After fifty years of doctrinal development, the minimum contacts test remains so fact- specific and uncertain that the outcome of the jurisdictional analysis in any particular case is unpredictable. [FN304] Defendants who are *435 not already judgment-proof must either appear to challenge jurisdiction, incurring much of the inconvenience and cost from which the doctrine purports to protect them, [FN305] or default and risk losing both the jurisdictional gamble and the chance to defend on the merits in a later action to enforce the judgment. The uncertainty of the jurisdictional analysis renders default an impractical option in all but the clearest cases. [FN306] Thus, as a tool for protecting defendants from burdensome litigation, the personal jurisdiction doctrine is both overinclusive, protecting defendants who face no measurable inconvenience, and underinclusive, imposing additional costs on defendants truly unable to bear them.

If the personal jurisdiction requirement does not protect defendants from distant litigation, does it serve its other, now discredited goal, to preserve the limits on state sovereignty imposed in our federal system? As originally conceived in Pennoyer [FN307] and reconceived in International Shoe, [FN308] personal jurisdiction bore a logical relationship to this goal: a state would clearly overreach the federal limits on its power if it sent either its sheriffs or, by analogy, its summons to demand the presence before it of persons outside its sovereign territory, except insofar as such persons were state subjects or brought themselves within the state's supervision through their conduct in, or with respect to, the state. However, the Court's growing emphasis on foreseeability and the defendant's expectations as the sine qua non of personal jurisdiction obscures and undermines this logic. It is entirely plausible that the Due *436 Process Clause embodies a guarantee that defendants need not submit to process from a state with no power to govern their conduct, but why should the limits of a state's sovereign power depend on particular nonresidents' subjective understandings of these limits? Moreover, the Court has resolutely refused to unite the doctrine of personal jurisdiction with that of choice of law, [FN309] thus further muddying the question of when a state exercise of power to regulate the conduct of a nonresident is so far overreaching as to constitute a due process violation. The Court has repeatedly stated that there are constitutional limits on a state's ability, through its courts, to impose its own law on nonresidents over whom it has personal jurisdiction, [FN310] but it has proved unable to articulate any meaningful limits on this ability. [FN311] Personal jurisdiction- jurisdiction to adjudicate-is thus de facto, if not de jure, jurisdiction to regulate in many if not most cases. [FN312]

If the power to adjudicate is the power to regulate, should new jurisdictional rules be devised to govern disputes arising in cyberspace? A number of commentators have proposed that cyberspace should be considered a separate jurisdiction with its own laws, to be devised by "[c]yberspace participants who care most deeply about this new digital trade in ideas, information, and services." [FN313] The development by traders around the Mediterranean Sea of a law merchant is often *437 suggested with enthusiasm as a model for regulating cyberspace, [FN314] particularly by those unhappy with real world "interference" in cyberspace. [FN315] It has even been suggested that cyberspace law should be enforced in and by cyberspace courts. [FN316]

These are not good ideas. The Internet is not a community that can and should be trusted to govern itself. It is not a community at all, separate from the real world communities to which its users belong. First of all, the Internet was constructed by, and remains dominated by, a small class of financially, intellectually, ethnically, and racially elite American users who are disproportionately young males with access to expensive computer equipment and the time to use it. [FN317] At best, allowing these persons to make the rules for cyberspace would be like allowing the guys with the coolest cars to make the rules for the highway.

The Internet might even be characterized fairly as anti-community. The Internet is organized by topic, rather than spatially, enabling users, if they so choose, to interact with only those other users who share their interests, whether those interests are cats, pornography, video games, literature, or law. Internet users, so long as they remain on-line, need never encounter or learn to accommodate persons who are not just like themselves. To the extent that the Internet is a community, it is defined only by its opposition to the "real world"; that is, by the exclusion of persons without access to the Internet-the poor, the uneducated, the continent of Africa, for example. Even as a community, the Internet does not function particularly well: many participants, encouraged by the ease of communicating anonymously, refuse to observe even a semblance of civility in their interactions with others. Pseudonymous personas populate much of the Internet; these can easily be shed by their real-world alter egos, along with responsibility for "their" actions. [FN318] The Internet is a fascinating, sprawling laboratory for the study of human interaction as well as a phenomenal means of communication and a growing marketplace, but it is not a community of persons who should be immunized from "interference" by real world authority.

How, then, should the domestic personal jurisdictional quandaries presented by cyberspace-based disputes be resolved? Given the everywhere-or-nowhere choices posed by potential cybercontract and cybertort disputes, should the choice be everywhere or nowhere, or is there some middle ground? There will be no good answer to this question until the rules for personal jurisdiction in the real world are reformed to make them both coherent and just.

The separate aspects of personal jurisdiction should be clearly distinguished and dealt with separately. First, Congress should use its authority under the Full Faith and Credit Clause of the Constitution [FN319] to define the outer limits of a state's power to impose its own laws on out-of- state defendants through its courts. It should be acknowledged that the legitimate role of foreseeability in the jurisdictional calculus is to enable people to have some idea what law will govern their conduct when they contemplate the conduct. The question of where they might have to travel to defend themselves is strictly secondary, and a potential defendant's ability to foresee the answer to this question is relatively trivial in comparison to the question of what law should be followed in the first instance. [FN320] This foreseeability can best be insured, not by case-by-case, particularized, after- the-fact balancing tests, but by clear, uniform limits. It has often been objected that choice-of-law doctrine is *439 itself so complex that its inclusion in the jurisdictional calculus would simply destroy any surviving uniformity or predictability. [FN321] Certainly, the Supreme Court should not fold choice-of-law questions into its current, case-by-case personal jurisdiction analysis; as Professor Russell Weinstein asked, "do we really want the folks who have made such a mess of jurisdiction, which is easy, to try their hand at choice of law, which is hard?" [FN322] Instead, an expanded federal full faith and credit statute should set uniform outer limits of both doctrines, denying extraterritorial enforcement to any state judgment entered in violation of those limits. [FN323] Following Pennoyer, then, defendants would have a constitutional right under the Due Process Clause to insist that these limits be observed, even in actions enforceable within the state rendering the judgment.

Second, the question of whether a state has the power to adjudicate a dispute should be clearly focused on the limits of that state's sovereignty, and not on the subjective expectations of a particular defendant. In the case of the Internet worm, for example, Indiana should indisputably have the power to adjudicate obligations arising from major damage to a computer in West Lafayette, Indiana, regardless of how far away, intangible, or unexpected the act causing that damage. [FN324]

Last, the protection of defendants from the burdens of inconvenient litigation should be recognized to be a facet of the procedural due process requirement that a person be given an opportunity to be heard before that person can be deprived of life, liberty, or property, and not a separate requirement inhering somewhere between procedural and substantive due process. This protection should be given real meaning, however, and should either be clarified so as to become predictable, or should be made susceptible to reasonably accurate determination in absentia (preferably, both). For example, a plaintiff might be required to complete a check-the-box form identifying a prima facie case for jurisdiction before obtaining a summons to be served on an out-of-state defendant. Where the prima facie case establishing the state's authority to decide the dispute has been made, a defendant challenging *440 jurisdiction should be required to demonstrate that the chosen forum is nevertheless too burdensome, [FN325] and should be able to do so by submitting a financial statement or tax return, or by completing other routine forms designed to elicit information about the burden of litigation in the forum. Congress could dictate the minimum protections for courts to make available under its full faith and credit authority. The combined effect of these proposed statutory changes should be to eliminate or to reduce substantially the uncertainty inherent in the personal jurisdiction determination, and to eliminate altogether the need to resolve these issues through expensive and burdensome motion practice.

And how should the cybercases come out? By and large, states should be found to have the power to adjudicate disputes in which forum residents are injured by commercial or tortious activity reaching the state through cyberspace. As between everywhere and nowhere, those who make potentially harmful words or products available through cyberspace should be exposed to regulation everywhere their words or products have substantial effects. With respect to whether the state's power can be exercised over a particular defendant, this question should depend on the defendant's resources and the distance to the forum. Goldberger of New Jersey should probably have to defend in Manhattan, [FN326] but Zippo of California might not have to defend in Pittsburgh. In either case, the determination should be made at the very outset of the action without a hearing-perhaps, appropriately, by submission of pertinent information over the Internet.

[FNa1]. Associate Professor of Law, Southwestern University School of Law. I thank Henry Sheehan and Mary Grace Engisch for everything, and Susan Park, Adam Chaikin, Negar Salim, and Sara Avakian for their invaluable assistance with this Article. This work was supported by a grant from Southwestern University School of Law.

[FN1]. The term "cyberspace" was coined by William Gibson in his futuristic novel Neuromancer (1984).

[FN2]. "The Internet is an international network of interconnected computers." ACLU v. Reno, 117 S. Ct. 2329, 2334 (1997). Although originally its use was restricted to the military, defense contractors, and universities performing defense-related work, see id., it is increasingly used by private commercial entities and individuals around the world, see id. at 2334-35.

[FN3]. 95 U.S. 714 (1877). Personal jurisdiction became rooted in the Due Process Clause of the Fourteenth Amendment to the United States Constitution in Pennoyer. See id. Although the doctrine has evolved somewhat since 1877, it retains the territorial basis and the emphasis on state borders given it by Justice Field in Pennoyer.

[FN4]. See, e.g., Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 417- 18 (9th Cir. 1997) (collecting cases); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-26 (W.D. Pa. 1997) (devising sliding scale of interactivity to analyze jurisdictional impact of World Wide Web sites).

[FN5]. 326 U.S. 310 (1945).

[FN6]. Compare, e.g., Transcraft Corp. v. Doonan Trailer Corp., 45 U.S.P.Q.2d 1097, 1103 (N.D. Ill. 1997) (finding no jurisdiction in trademark infringement action over Kansas defendant whose World Wide Web page could be seen throughout forum state, because plaintiff had failed to prove communications intended to reach Illinois residents) and E-Data Corp. v. Micropatent Corp., No. CIV.3:96CV523 JBA, 1997 WL 805282, at *3 (D. Conn. Sept. 30, 1997) (refusing to find jurisdiction in patent infringement action because plaintiff had failed to allege facts "showing that [defendant's] Web advertisements actually reached this forum through any Connecticut consumer locating [defendant's] Web address and using that address to visit its Web site") with SuperGuide Corp. v. Kegan, 44 U.S.P.Q.2d 1770, 1775 (W.D.N.C. 1997) (finding jurisdiction in trademark infringement action over defendant whose World Wide Web page could be seen throughout forum state because, although neither party had proved communications or sales to North Carolina residents, "a reasonable inference would be that a large number of North Carolina residents have visited defendant's web site, a number of those visitors have utilized defendant's commercial services, and some have even obtained MACGUIDE credit cards").

[FN7]. Not all commentators find the current version of constitutional personal jurisdiction doctrine inadequate to meet the needs of cyberspace. See, e.g., Gwenn M. Kalow, Note, From the Internet to Court: Exercising Jurisdiction over World Wide Web Communications, 65 Fordham L. Rev. 2241, 2242 (1997); Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 Alb. L.J. Sci. & Tech. 339 (1996).

[FN8]. See infra Part IV.A.

[FN9]. See infra Part II.D.

[FN10]. Preliminary jurisdictional disputes are common in both state and federal courts. A search for cases containing the phrase "traditional notions of fair play and substantial justice" run in the Westlaw Allfeds database on October 11,1997, revealed well over 3,000 personal jurisdiction opinions since 1945. A similar search of the Allstates database turned up over 2,400 appellate decisions. Presumably, the databases contain many more personal jurisdiction decisions that do not cite the International Shoe mantra in full; these would not have been counted. And even these would be only the reported opinions, certainly a small fraction of the jurisdictional motions actually ruled upon. Many of these threshold disputes involve not only legal briefing and argument, but also evidentiary hearings and discovery, lengthening the delay and raising the costs of adjudication in an already overtaxed system.

[FN11]. This discussion will focus primarily on the personal jurisdiction limits imposed on state courts. The same jurisdictional limits governing the courts of a particular state also govern most actions in the federal courts located in that state, not as a matter of due process, but because these limits have been adopted by the federal system. See Fed. R. Civ. P. 4(k).

[FN12]. See, e.g., Cal. Civ. Proc. Code s 681.010 (West Supp. 1991) (Enforcement of Judgments); Idaho Code ss 11-101 to -107 (1990 & Supp. 1997) (Enforcement of Judgments in Civil Actions); Mont. Code Ann. ss 25-13- 101 to -105 (1997) (Enforcement of Judgments).

[FN13]. See, e.g., Cal. Civ. Proc. Code s 695.010 (Enforcement of Money Judgments), s 714.010 (Enforcement of Judgments for Possession of Personal Property), s 715.010 (Enforcement of Judgments for Possession of Real Property); Idaho Code s 11-104 (governing execution of judgments for possession of real or personal property or money); Mont. Code Ann. s 25-13- 201 (same).

[FN14]. See, e.g., Cal. Civ. Proc. Code s 1710.10 (Enforcement of Sister State Money Judgments Act). Judgments rendered by foreign courts are also enforceable in the United States. See, e.g., Alaska Stat. ss 09.30.100- 120 (Michie 1996) (Uniform Foreign Country Money-Judgments Recognition Act); Va. Code Ann. ss 8.01-465.8 to -465.10 (Michie 1996) (same).

[FN15]. See Riley v. New York Trust Co., 315 U.S. 343, 349 (1942) (requiring state courts to give sister-state judgments same res judicata effect they would have in the rendering state); Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 380 (1985) (holding that federal courts must give state court judgments the same preclusive effect they would be given by the courts rendering them).

[FN16]. The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment to the Constitution imposes a de jure limit on a state's jurisdiction to bind persons and property, even in situations where enforcement of the judgment is entirely within the de facto power of the state. See Pennoyer v. Neff, 95 U.S. 714 (1877).

[FN17]. See U.S. Const. art. IV, s 1. The Full Faith and Credit Clause authorizes Congress to specify the effects of state court judgments. See id. The statute passed by Congress to implement the power granted in section 1 of Article IV is codified at 28 U.S.C. s 1738 (West 1994). Not all observers agree that the doctrine of full faith and credit either can or should require courts to give each others' judgments preclusive effect. See, e.g., Sanford N. Caust-Ellenbogen, False Conflicts and Interstate Preclusion: Moving Beyond a Wooden Reading of the Full Faith and Credit Statute, 58 Fordham L. Rev. 593, 640-41 (1990) (arguing that the Supreme Court's interpretations of the Full Faith and Credit Clause and its implementing federal statute are neither necessary nor desirable).

[FN18]. The validity of this qualification of the doctrine of full faith and credit was established in Pennoyer v. Neff. 95 U.S. 714, 729 (1877). The question of whether and to what degree the Full Faith and Credit Clause and its implementing legislation were intended to permit a court to consider challenges to the enforcement of a sister-state judgment that could not be raised in the rendering court, including jurisdictional objections based on principles of international or common law, is exhaustively investigated in Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 Creighton L. Rev. 499, 542-99 (1981).

[FN19]. U.S. Const. amend. XIV, s 1.

[FN20]. See, e.g., Cal. Civ. Proc. Code s 410.50; N.C. Gen. Stat. s 1- 75.7 (1996).

[FN21]. See, e.g., National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 311-18 (1964) (Black, J., dissenting) (permitting New York court to exercise jurisdiction over Michigan farmers who had "consented" to jurisdiction in New York by appointing a New York agent for service of process in their farm equipment rental agreement).

[FN22]. See, e.g., Miller v. O'Keefe, 42 Cal. Rptr. 343 (Cal. App. 1965) (finding that unserved defendants who filed a stipulation with plaintiff agreeing that they need not appear until other defendants' demurrers had been ruled on, and requesting court to send them notices of proceedings, had made a "general appearance" submitting them to court's jurisdiction).

[FN23]. A person acts in a way inconsistent with a challenge to jurisdiction by, for example, initiating or participating in discovery unrelated to jurisdictional issues. See, e.g., Creed v. Schultz, 196 Cal.Rptr. 252, 256 (1983).

[FN24]. See, for example, Federal Rules of Civil Procedure 12(g) and (h), and equivalent state rules; compare Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982). The reasoning in Insurance Corp. of Ireland is somewhat obscure; however, it can best be seen as a case involving a defendant who appeared in an action, thus providing an independent basis for personal jurisdiction, without adhering to the procedures provided to immunize a defendant from the jurisdictional effects of appearing while challenging jurisdiction. As the Court pointed out, Insurance Corporation of Ireland was free to default if it was convinced the court lacked jurisdiction. See id. at 706. Its decision to both appear to challenge jurisdiction and flout the rules governing such an appearance resulted in a general appearance submitting it to jurisdiction. See id. at 706-07.

[FN25]. See, e.g., N.C. Gen. Stat. s 1-75.4(1)(b) (1996) (permitting court to exercise jurisdiction over any person served with process who, at the time of service, is "a natural person domiciled within this State"); Ill. Ann. Stat. ch. 735, para. 5/2-209(b) (Smith-Hurd 1992) ("A court may exercise jurisdiction in any action arising within or without this State against any person who: . . . (2) Is a natural person domiciled or resident within this State when the cause of action arose, the action was commenced, or process was served. . . .").

[FN26]. See N.C. Gen. Stat. s 1-75.4(1)(c); Ill. Ann. Stat. ch. 735, para. 5/2-209(b)(3).

[FN27]. See N.C. Gen. Stat. s 1-75.4(1)(a) (allowing jurisdiction over a natural person present in the state when served); Ill. Ann. Stat. ch. 735, para. 5/2-209(b)(1) (same). The availability of jurisdiction based solely on the defendant's presence in the state when served with process, while common in the United States, has been rejected by many other nations and is listed among the "exorbitant" means of obtaining jurisdiction Member Nations are required to forego in order to join the European Economic Community. See Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 1988 O.J. (L 319).

[FN28]. See, e.g., Jeffrey E. Glen, An Analysis of "Mere Presence" and Other Traditional Bases of Jurisdiction, 45 Brook. L. Rev. 607, 611 (1979).

[FN29]. See, e.g., D.C. Code Ann. s 13-423(a)(4) (1995) (permitting jurisdiction over persons who cause tortious injury in the District of Columbia by an act or omission outside the District).

[FN30]. See, e.g., E-Data Corp. v. Micropatent Corp., No. CIV.3:96CV523 JBA, 1997 WL 805282, at *2 (D. Conn. Sept. 30, 1997) (referring to Conn. Gen. Stats. s 33-411 as the "long-arm statute"); Malliankrodt Med., Inc. v. Sonus Pharm., Inc., No. CIV.A.97-1732(PLF), 1998 WL 6546, at *7 (D.D.C. Jan. 5, 1998) (referring to D.C. Code s 13-423 as the "long-arm statute").

[FN31]. See, e.g., American Network, Inc. v. Access Am./Connect Atlanta, Inc., 975 F. Supp. 494, 496 (S.D.N.Y. 1997) (pointing out that New York's long- arm statute, N.Y. CPLR s 302, provides jurisdiction only over "a cause of action arising from any of the acts enumerated in this section").

[FN32]. How is one to decide, for example, whether, when a Missouri resident posts a press release on a World Wide Web site accessible to anyone on the planet with a computer and the proper software, it "regularly does or solicits business in" Virginia, or "engages in a persistent course of conduct" there for purposes of Virginia Code section 8.01-c328.1(A)(3), the Virginia long-arm statute? See Telco Communications v. An Apple A Day, 977 F. Supp. 404, 406- 07 (E.D. Va. 1997) (finding that advertising services over the Internet not only constituted a regular course of conduct in Virginia, but defamation of a Virginia resident allegedly caused by the web site also constituted "tortious injury by an act or omission in" Virginia).

[FN33]. Although this Article suggests that the jurisdictional puzzles created by new communications technologies (and the costs of solving these puzzles through litigation) can be mitigated through the use of carefully drafted jurisdictional statutes, most states seem to be moving away from this solution rather than toward it. Increasing numbers of long-arm statutes are being interpreted or amended to extend personal jurisdiction to the limits of due process, thus adopting all the uncertainty inherent in this anachronistic constitutional doctrine. See, e.g., Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356, 1359 (W.D. Ark. 1997) (recounting how section 16-4-101 of the Arkansas Code, Arkansas's long-arm statute, was first judicially extended to limits of due process and then amended to authorize jurisdiction "to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution").

[FN34]. Some commentators have suggested that not only authorization questions but also constitutional problems in personal jurisdiction may be ameliorated by judicial deference to well-crafted state long-arm statutes. See Christopher D. Cameron & Kevin M. Johnson, Death of a Salesman?: Forum Shopping and Outcome Determination under International Shoe, 28 U.C. Davis L. Rev. 769, 840 (1995); Carol S. Bruch, Statutory Reform of Constitutional Doctrine: Fitting International Shoe to Family Law, 28 U.C. Davis L. Rev. 1047 (1995) (proposing legislative remedy to jurisdictional problems modeled on solutions devised in the areas of child custody and child support).

[FN35]. Pennoyer v. Neff, 95 U.S. 714 (1877). Oddly, the Due Process Clause was declared to be a source of constitutional limits on adjudicative jurisdiction in a case invalidating a judgment both entered and collaterally attacked before the Fourteenth Amendment was ratified. See, e.g., Philip Kurland, The Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts from Pennoyer to Denckla: A Review, 25 U. Chi. L. Rev. 569, 570-73 (1958); Patrick J. Borchers, Pennoyer's Limited Legacy: A Reply to Professor Oakley, 29 U.C. Davis L. Rev. 115, 132 n.77 (1995). In fact, the entire discussion of in personam jurisdiction in Pennoyer was technically dictum, as both parties conceded that jurisdiction in personam had not been established. See Wendy Collins Perdue, Sin, Scandal and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered, 62 Wash. L. Rev. 479, 499-500 (1987).

[FN36]. See generally National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-18 (1964) (Black, J., dissenting).

[FN37]. See Milliken v. Meyer, 311 U.S. 457, 458 (1940).

[FN38]. Burnham v. Superior Court, 495 U.S. 604 (1990).

[FN39]. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken, 311 U.S. at 463).

[FN40]. Id. at 319.

[FN41]. Id.

[FN42]. See, e.g., Burnham v. Superior Court, 495 U.S. 604 (unanimously finding jurisdiction based on transient presence in forum state, while splitting 4-4-1 on basis for decision); Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) (Court unanimous in finding no jurisdiction while splitting 4-4-1 on whether minimum contacts exist and 8-0 with one abstention on whether the assertion of jurisdiction over Asahi would be fair). By the time it was decided, Burnham was no longer a "minimum contacts" case; Burnham's argument that California could not exercise jurisdiction over him, despite his presence in the state when served with process, because he did not have "minimum contacts" with the state, was rejected by every member of the Court. The justices were unable to agree as to why Burnham was not entitled to the benefits of the minimum contacts analysis, however. See Burnham, 495 U.S. at 620-21 (Scalia, J.) (arguing, in an opinion joined by Chief Justice Rehnquist and Justices White and Kennedy, that the "minimum contacts test" was not extended by Shaffer v. Heitner to determine the constitutionality of jurisdiction over persons served with process within the forum state); id. at 628 (White, J., concurring in part and concurring in the judgment) (agreeing that, in the instant case and in all but the most unusual cases, personal service in the state alone is sufficient to establish jurisdiction); id. at 637-40 (Brennan, J., concurring in the judgment) (finding, in an opinion joined by Justices Marshall, Blackmun, and O'Connor, that jurisdiction based on service in the state is fair as a general rule); id. at 640 (Stevens, J., concurring in the judgment) (upholding service within the state as a basis for jurisdiction without either conducting a minimum contacts analysis or joining any other opinion).

[FN43]. See, e.g., Asahi, 480 U.S. 102. Justice O'Connor, writing for a plurality in Asahi, undertook to resolve a split in the circuits on what constituted purposeful availment in the "stream of commerce" product liability cases, but, while clearly articulating the nature of the split, was unable to muster a majority in support of her preferred view. See id. at 105-16. As a result, the circuits are now split on how to interpret Asahi. See, e.g., Renner v. Lanard Toys, Ltd., 33 F.3d 277, 281-83 (3d Cir. 1994) (discussing Asahi and its reception by the lower courts at length); Boit v. Gar-tec Prods., Inc., 967 F.2d 671, 683 (1st Cir. 1992) (citing cases from the First, Eighth, and Eleventh Circuits adopting Justice O'Connor's preferred view); Dehmlow v. Austin Fireworks, 963 F.2d 941, 947 (7th Cir. 1992) (finding that the more expansive view of jurisdiction implicitly adopted by the Court's approving citation to Gray had never been rejected by a majority of the court); accord Irving v. Owens-Corning Fiberglas Corp., 864 F.2d 383, 385-86 (5th Cir. 1989).

[FN44]. See, for example, the debate between Justices Scalia and Brennan on the role of the courts in embodying evolving notions of fairness in constitutional jurisprudence in Burnham. The temptation to use personal jurisdiction issues to advance more general jurisprudential agendas may go all the way back to Pennoyer, when Justice Field managed to shoehorn a prototype of substantive due process into a case in which all relevant events occurred before the Fourteenth Amendment became effective. See Perdue, supra note 35, at 479-80.

[FN45]. One hesitates to point to either Burnham or Asahi as a source of greater certainty in the law of personal jurisdiction. See Cameron & Johnson, supra note 34, at 833-34 & nn.296-300. Burnham undermined what had been understood by many to be the flat rule of Shaffer v. Heitner that all assertions of personal jurisdiction would be subject to the minimum contacts test derived from International Shoe. See, e.g., Peter Hay, Transient Jurisdiction, Especially over International Defendants: Critical Comments on Burnham v. Superior Ct., 1990 U. Ill. L. Rev. 593, 595-98 (1990). Asahi left the question of jurisdiction over manufacturers of components in product liability cases a shambles. Nevertheless, both Asahi and Burnham did enhance the certainty of personal jurisdiction doctrine, if only marginally, Asahi by clarifying the separate role to be played by the "reasonableness" factors first introduced in World-Wide Volkswagen, and Burnham by lifting a class of cases out of the murky world of minimum contacts altogether. See Erwin Chemerinsky, Assessing Minimum Contacts: A Reply to Professors Cameron and Johnson, 28 U.C. Davis L. Rev. 863, 866 (1995) (identifying Asahi and Burnham as sources of greater certainty in the law of personal jurisdiction).

[FN46]. See Pennoyer v. Neff, 95 U.S. 714 (1877); International Shoe Co. v. Washington, 326 U.S. 310 (1945).

[FN47]. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 267-68 (1969) ("'The fundamental requisite of due process of law is the opportunity to be heard.'. . . In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend. . . .") (citation omitted).

[FN48]. 339 U.S. 306, 313-20 (1950) (setting forth the requirements that must be met for notice of the pendency of a lawsuit to comply with procedural due process).

[FN49]. "[D]efendant had notice of the pendency of this action by publication of the summons for six successive weeks in the 'Pacific Christian Advocate,' a weekly newspaper of general circulation published in Multnomah County, State of Oregon. . . ." Pennoyer, 95 U.S. at 717.

[FN50]. Id. at 726. The Court remarked:

If, without personal service, judgments in personam, obtained ex parte against non-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression.

Id.

[FN51]. Id. at 727.

The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale.

Id.

[FN52]. See Perdue, supra note 35, at 479-90 (giving an entertaining account of the history of Pennoyer v. Neff).

[FN53]. See Pennoyer, 95 U.S. at 727.

[FN54]. International Shoe Co. v. Washington, 326 U.S. 310 (1945).

[FN55]. Id. at 316. In the key passage, the International Shoe Court noted:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

Id. (citation omitted).

[FN56]. See id. at 320 (finding service on International Shoe's agents in Washington sufficient notice to the corporation). Indeed, the familiar "traditional notions of fair play and substantial justice" language, which International Shoe borrowed from Milliken, refers in that case to the requirements of procedural due process-notice and an opportunity to be heard. Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

[FN57]. Quill Corp. v. North Dakota, 504 U.S. 298, 313 (1992).

[FN58]. Id. at 312.

[FN59]. See International Shoe, 326 U.S. at 316-19.

[FN60]. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

[FN61]. Id.

[FN62]. Id. at 253.

[FN63]. See id. at 251.

[FN64]. Id. (quoting International Shoe, 326 U.S. at 319).

[FN65]. 436 U.S. 84 (1978).

[FN66]. Id. at 94 (quoting Shaffer v. Heitner, 433 U.S. 186, 216 (1976)).

[FN67]. Id. at 97.

[FN68]. Id.

[FN69]. Id. The circularity of the "foreseeability" element in personal jurisdiction, later remarked upon by Justice Brennan in World-Wide Volkswagen, is already apparent here. The only thing preventing Mr. Kulko, who had been relieved of the expense of maintaining his children in his own household without a concomitant adjustment in his support obligation to his ex-wife, from foreseeing a suit for that support in the state where his family now lived, was his belief that the law did not permit such a suit.

[FN70]. 444 U.S. 286 (1980).

[FN71]. See id. at 292-95.

[FN72]. World-Wide Volkswagen Corp. v. Woodson, 585 P.2d 351, 353 (Okla. 1978), rev'd, U.S. 286 (1980).

[FN73]. World-Wide Volkswagen, 444 U.S. at 298 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

[FN74]. Id. at 291-92.

[FN75]. Id. at 292.

[FN76]. Id. (citations omitted).

[FN77]. Id. at 294 (quoting Hanson v. Denckla, 357 U.S. at 250-51).

[FN78]. Id.

[FN79]. This shift was foreshadowed in Shaffer v. Heitner, where Justice Marshall noted that "appellants had no reason to expect to be haled before a Delaware court." 433 U.S. 186, 216 (1977). The point was made more explicitly in Justice Stevens's concurring opinion. Id. at 218 (Stevens, J., concurring). Justice Stevens introduced the notion that due process required a defendant to have "fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign. . . . As a practical matter, the Delaware sequestration statute creates an unacceptable risk of judgment without notice." Id. (Stevens, J., concurring).

[FN80]. World-Wide Volkswagen, 444 U.S. at 297 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

[FN81]. Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 119 (1987) (Brennan, J., concurring) (quoting World-Wide Volkswagen, 444 U.S. at 297).

[FN82]. See World-Wide Volkswagen, 444 U.S. at 295-96.

[FN83]. See, e.g., Starbrite Distrib., Inc. v. Excelda Mfg. Co., 562 N.W.2d 640, 643 (Mich. 1997); Digital Equip. Corp. v. Altavista Tech., Inc., 960 F. Supp. 456, 466 (D. Mass. 1997).

[FN84]. Hanson v. Denckla, 357 U.S. 235, 250 (1958) (emphasis added).

[FN85]. 456 U.S. 694 (1982).

[FN86]. See id. at 703 n.10. Numerous commentators seemed to regard the Court's renunciation of a state sovereignty/federalism basis for personal jurisdiction as not only correct, but long overdue. See, e.g., Harold S. Lewis, Jr., The Three Deaths of 'State Sovereignty' and the Curse of Abstraction in the Jurisprudence of Personal Jurisdiction, 58 Notre Dame L. Rev. 699, 700-01 (1983) ("[T]he Court recognized for the first time what should long since have been clear: that the due process clause is the only constitutional restriction on the personal jurisdiction of state courts; that the sole interest protected, therefore, is 'individual liberty,' exclusive of state sovereignty. . . ."); Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. Davis L. Rev. 19, 92 (1990) ("As the Court correctly pointed out in Bauxites, the due process clause is a guarantor of personal rights, which does not square with the concept of the clause as an 'arbitrator' between jealous states."). However, there is no reason why the Due Process Clause cannot protect individual defendants from coercion by states acting in excess of their sovereignty. This point is acknowledged but rather summarily dismissed by one of the state sovereignty theory's major pre-Insurance Corp. of Ireland opponents. See Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw. U. L. Rev. 1112, 1125 (1981) ( "One might argue. . . that. . . the federalism limitation should be viewed as a more traditional due process protection of individual rights. . . based on the principal that individuals have a right to be adjudged only by the sovereign to which they owe allegiance. This argument, however, whatever its merits, is not the argument of the Supreme Court.") In the same article, Professor Redish also expressed doubt that the protection of defendant's reasonable expectations could justify the doctrine of personal jurisdiction. See id. at 1134.

[FN87]. Insurance Corp. of Ireland, 456 U.S. at 695-96, 703.

[FN88]. Id. at 703 n.10.

[FN89]. See Pennoyer v. Neff, 95 U.S. 714, 729 (1877).

[FN90]. See World-Wide Volkswagen, 444 U.S. at 294 ("Nevertheless, we have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of interstate federalism embodied in the Constitution.").

[FN91]. See Insurance Corp. of Ireland, 456 U.S. at 703 n.10.

[FN92]. 465 U.S. 770 (1984).

[FN93]. 465 U.S. 783 (1984).

[FN94]. See Keeton, 465 U.S. at 772. Plaintiff Keeton was a New York resident; defendant Hustler was an Ohio corporation with its principal place of business in California. See id.

[FN95]. Keeton, 465 U.S. at 781.

[FN96]. See Calder, 465 U.S. at 785-86.

[FN97]. See id. at 789.

[FN98]. Id. at 789-90 (citations omitted).

[FN99]. 471 U.S. 462 (1985).

[FN100]. Id. at 472 (citations, brackets, and internal quotation marks omitted).

[FN101]. Id. at 480.

[FN102]. See id. at 472. By contrast, Burger King's nearest factual precedent, McGee v. International Life Insurance Co., found jurisdiction in California over a Texas insurance company with a single California insured without a single reference to the defendant's expectations or ability to foresee suit in California. 355 U.S. 220, 222, 224 (1957). Jurisdiction in McGee was based on California's "manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims." Id. at 223. Defendant contended that it was not validly served with process because the California statute under which it had been served had been enacted after the insurance contract between defendant and plaintiff's decedent was made. See id. at 224. This contention, however, was founded on an argument that application of the statute improperly impaired the existing contract, not that defendant was entitled to notice that entering the contract would subject it to jurisdiction in California. See id.

[FN103]. See Burger King, 471 U.S. at 473-77. The Court denied in Burger King that the mere formation of a contract with a resident of the forum state established jurisdiction there. See id. at 479. However, employing the "'highly realistic' approach" to the course of dealing that a contract represents, the court based its finding of jurisdiction entirely on the existence of the contract, the fine print thereon, and Rudzewicz's admitted knowledge of the location of Burger King headquarters. Id. (citation omitted).

[FN104]. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984) (noting that only "a small portion" of Hustler's national circulation was sold in New Hampshire).

[FN105]. See Calder v. Jones, 465 U.S. 783, 790 (1984).

[FN106]. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

[FN107]. Id. at 297-98 (citing Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (1961)).

[FN108]. Id. at 298 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

[FN109]. 176 N.E.2d 761.

[FN110]. As Justice Brennan pointed out in his dissent, "The manufacturer in [Gray] had no more control over which States its goods would reach than did the petitioners in this case." World-Wide Volkswagen, 444 U.S. at 307 n.12 (Brennan, J., dissenting).

[FN111]. Justice Brennan pointed out this circularity in his dissenting opinion: "[T]he reasoning begs the question. A defendant cannot know if his actions will subject him to jurisdiction in another State until we have declared what the law of jurisdiction is." World-Wide Volkswagen, 444 U.S. at 311 n.18. The Court specifically rules out the possibility that the "foreseeability" guaranteed by the purposeful availment requirement might be the defendant's actual ability to foresee that its product might cause injury in the forum state. See id. at 296; see also id. at 314-15 (Marshall, J., dissenting) (arguing unsuccessfully that, because a reasonable businessman in defendants' position would have been alerted "to the likelihood that a defect in the product might manifest itself in the forum state," defendants should have expected to be haled into court there).

[FN112]. 480 U.S. 102 (1987).

[FN113]. See id. The portion of Justice O'Connor's opinion discussing the stream of commerce theories was joined by Chief Justice Rehnquist and Justices Powell and Scalia. See id. As of February 1988, Chief Justice Rehnquist and Justices O'Connor and Scalia remained on the Court. All of the justices who joined Justice Brennan's opinion disagreeing with Justice O'Connor's analysis and applying the broader stream of commerce test which Justice O'Connor hoped to overrule have since retired from the Court.

[FN114]. Id. at 110.

[FN115]. See id.

[FN116]. Id. (quoting World-Wide Volkswagen, 444 U.S. at 297).

[FN117]. Ironically, Justice O'Connor's proposed test exactly mirrors the state of affairs that prompted the Court to hand down International Shoe in 1945. At that time, courts, laboring under Pennoyer's rule restricting a state's power to persons who were present in the state when served with process, had developed elaborate fictions to determine when a corporation was "present" in a state for purposes of service of process. See Kurland, supra note 35, at 577-86. One large class of cases, of which International Shoe was a member, concerned corporations whose in-state activity consisted in whole or in part of soliciting sales of goods or services to be provided outside the state. See International Shoe Co. v. Washington, 326 U.S. 310, 314 (1945). In these cases, the rule developed that "mere" solicitation in the state was insufficient to constitute corporate presence, see, e.g., People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 87 (1918) ("As to the continued practice of advertising its wares in Louisiana, and sending its soliciting agents into that State,. . . the agents having no authority beyond solicitation, we think the previous decisions of this court have settled the law to be that such practices did not amount to [the] doing of business which subjects the corporation to the local jurisdiction for the purpose of service of process upon it."), but that "solicitation plus" some other activity in the state-keeping a permanent office, paying salaries to in-state employees- rendered a corporation "present" so that it could be served with process in state, see International Shoe at 314; International Harvester Co. of Am. v. Kentucky, 234 U.S. 579, 587 (1914) ("In the case now under consideration there was something more than mere solicitation."); Frene v. Louisville Cement Co., 134 F.2d 511, 515 (D.C. Cir. 1943) (characterizing "solicitation plus" cases as holding that, "if, in addition to a regular course of solicitation, other business activities are carried on, such as maintaining a warehouse, making deliveries, etc., the corporation is 'present' for jurisdictional purposes."). In much the same way, Justice O'Connor's rule is an attempt to answer the fictional question of when a supplier of defective products can "foresee" being sued in a state by distinguishing between the "mere" sales of its product, which do not enable the supplier to foresee litigation, and "sales plus" some other activity in the state, which do.

[FN118]. See Asahi, 480 U.S. at 112.

[FN119]. See id.

[FN120]. Id. at 108-13.

[FN121]. See id. Justice Brennan's concurring opinion, by contrast, was a straightforward, foreseeability-based analysis:

The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.

Id. at 117 (Brennan, J., concurring in part and concurring in the judgment). Justice Brennan's opinion was joined by Justices White, Marshall, and Blackmun. See id. at 116.

[FN122]. Id. at 113 (citations and internal quotation marks omitted).

[FN123]. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).

[FN124]. Id. at 476-77 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).

[FN125]. Asahi, 480 U.S. at 116-21 (Brennan, J., concurring in part and concurring in the judgment) (finding, in an opinion joined by Justices White, Marshall, and Blackmun, that Asahi's contacts with California were sufficient to support jurisdiction); id. at 121-22 (Stevens, J., concurring in part and concurring in the judgment) (declining, in an opinion joined by Justices White and Blackmun, to consider whether Asahi had the requisite minimum contacts with California, but arguing that Justice O'Connor's opinion finding that such contacts did not exist misapplied her preferred test to the facts of the case).

[FN126]. See id. at 113-16 (O'Connor, J., writing for the Court) (finding California's exercise of jurisdiction over Asahi unreasonable; joined in this portion of the opinion by Chief Justice Rehnquist and Justices Brennan, White, Marshall, Blackmun, Powell, and Stevens).

[FN127]. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (requiring that a defendant have "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") (citation and internal quotation marks omitted; emphasis added).

[FN128]. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113- 22 (1987).

[FN129]. Despite its lack of majority support and principled foundation, Justice O'Connor's preferred jurisdictional test has been proposed as a solution to cyberspace-based jurisdictional puzzles. See, e.g., Kalow, supra note 7, at 2269-74; David L. Stott, Comment, Personal Jurisdiction in Cyberspace: The Constitu-tional Boundary of Minimum Contacts Limited to a Web Site, 15 J. Marshall J. Computer & Info. L. 819, 838-54 (1997); Sonia K. Gupta, Comment, Bulletin Board Systems and Personal Jurisdiction: What Comports with Fair Play and Substantial Justice?, 1996 U. Chi. Legal F. 519, 534 (1996). By contrast, the most recent court to discuss Asahi in connection with cybercontacts appears to have relied on the more expansive, Gray version of the stream of commerce test. See Hasbro, Inc. v. Clue Computing, Inc., No. 97- 10065-DPW, 1997 U.S. Dist. LEXIS 18857 (D. Mass. Sept. 30, 1997) (analogizing advertisements on the World Wide Web to products sent into the stream of commerce, citing Asahi, and finding that jurisdiction was appropriate in Massachusetts because defendant intended to reach Massachusetts as well as the rest of the world); see also Transcraft Corp. v. Doonan Trailer Corp., 45 U.S.P.Q.2d 1097, 1103 (N.D. Ill. 1997) (discussing Hasbro).

[FN130]. See Asahi, 480 U.S. at 108-11 (detailing various kinds of foreseeability requirements applied in earlier cases, but failing to articulate which variety due process requires).

[FN131]. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297- 98 (1980).

[FN132]. See Asahi, 480 U.S. at 103-04.

[FN133]. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984).

[FN134]. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[FN135]. For a description of the jurisprudential problems leading up to International Shoe, see Cameron & Johnson, supra note 34, at 782-86.

[FN136]. See International Shoe Co. v. Washington, 326 U.S. 310 (1945).

Since the corporate personality is a fiction,. . . it is clear that unlike an individual its "presence" without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf. . . . For the terms "present" or "presence" are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process.

Id. at 316-17.

[FN137]. 495 U.S. 604 (1990).

[FN138]. See id. at 608.

[FN139]. Id. One might suppose the fact that Burnham's wife and two children lived in California would constitute a substantial connection to the state for jurisdictional purposes. Certainly Burnham could foresee being sued for divorce by his wife in California and for support on behalf of his two children living there. As noted above, however, the Court does not count "personal" contacts in the personal jurisdictional calculus; reasons that do not withstand the scrutiny they are rarely given. See Kulko v. Superior Court, 436 U.S. 84, 94 (1978).

[FN140]. See Burnham, 495 U.S. at 608.

[FN141]. Justice Scalia's opinion is joined by the Chief Justice and Justice Kennedy. See id. at 607.

[FN142]. See id. at 621 ("[I]ts validation is its pedigree. . . .").

[FN143]. See id. at 628 (Brennan, J., concurring in the judgment). Justice Brennan's opinion is joined by Justices Marshall, Blackmun, and O'Connor. See id.

[FN144]. See id. at 629 (Brennan, J., concurring in the judgment).

[FN145]. See id. at 628 (White, J., concurring in part and concurring in the judgment); id. at 640 (Stevens, J., concurring in the judgment).

[FN146]. See id. at 636 (Brennan, J., concurring in the judgment); see also Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring in the judgment) ("If I visit another State,. . . [m]y contact with the State, though minimal, gives rise to predictable risks."); Burger King Corp. v. Rudzewicz, 471 U.S. 562, 476 (1985) ("[T]erritorial presence frequently will. . . reinforce the reasonable foreseeability of suit there. . . .").

[FN147]. Burnham, 495 U.S. at 624.

[FN148]. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 n.10 (1982).

[FN149]. The Court's latest jurisdictional pronouncement is its most earth- bound. In Quill Corporation v. North Dakota, although reaffirming its belief that personal jurisdiction over a defendant could be based on intangible contacts with the forum state, the Court held that a state's power to tax sales by an out-of-state corporation requires a finding that defendant maintains an actual physical presence in the state. 504 U.S. 298, 317-18 (1992).

[FN150]. Much of the computer backbone of the Internet is now in the hands of corporate giants such as IBM and MCI. See Andrew L. Shapiro, Street Corners in Cyberspace: Free Public Forums Must Be Preserved on the Internet, The Nation, July 3, 1995, at 10. The Internet has always had roots in private corporate activity. The Unix operating system that forms the basis of the Internet was developed by AT&T at Bell Laboratories. See John Unsworth, Living Inside the (Operating) System: Community in Virtual Reality (Draft) (visited Oct. 11, 1997) <http:// jefferson.village.virginia.edu/pmc/Virtual.Community.html>. The Usenet, a huge number of discussion groups making up the bulk of the original Internet, was developed as a way for computer analysts to share information about Unix, for which AT&T did not provide technical support. See id. MOOcode, the programming language that makes possible participation in MOOs-text-based, multi-user, real-time fantasy worlds-was written at Xerox. See id. Some observers view MOOs as a model for the development of on-line communities. See id.

[FN151]. See, e.g., S.F. Hotel Co., L.P. v. Energy Investments, Inc., 45 U.S.P.Q.2d 1308, 1310 (D. Kan. 1997) (rejecting what it calls plaintiff's "general jurisdiction argument" based on defendant's World Wide Web site visible in Kansas); Weber v. Jolly Hotels, 1997 WL 574950, at *5-6 (D.N.J. Sept. 12, 1997) (denying jurisdiction over Italian hotel advertising on Internet in action by New Jersey resident injured at hotel when trip not arranged through web page or by agent in New Jersey); Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356 (W.D. Ark. 1997) (holding Internet advertising unrelated to sale of product insufficient basis for jurisdiction in wrongful death action against manufacturer of defective Christmas tree sold to retailer in Hong Kong); IDS Life Ins. Co. v. SunAmerica, Inc., 958 F. Supp. 1258 (N.D. Ill. 1997) (holding that site on Internet, without more, does not constitute "doing business" in Illinois for purpose of general jurisdiction under Illinois long-arm statute); McDonough v. Fallon McElligott Inc., 40 U.S.P.Q.2d 1826, 1828 (S.D. Cal. 1996) ("[T]he fact that Fallon has a Web site used by Californians cannot establish jurisdiction by itself.").

[FN152]. See, e.g., Cody v. Ward, 954 F. Supp. 43, 45-46 (D. Conn. 1997) (equating electronic mail with telephone calls and letters); accord Hall v. LaRonde, 66 Cal. Rptr. 2d 399, 400 (Cal. App. 1997).

[FN153]. See Cody, 954 F. Supp. at 45-46.

[FN154]. Hall, 66 Cal. Rptr. 2d at 402.

[FN155]. See, e.g., CompuServe Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996) (reversing district court's denial of jurisdiction based on computer- mediated transactions); Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351 (Fla. Dist. Ct. App. 1994) (reversing trial court's grant of jurisdiction based on computer-mediated transactions).

[FN156]. 89 F.3d 1257 (6th Cir. 1996).

[FN157]. 636 So. 2d 1351 (Fla. Dist. Ct. App. 1994).

[FN158]. 471 U.S. 462 (1985).

[FN159]. See CompuServe, 89 F.3d at 1257; Pres-Kap, 636 So. 2d at 1351.

[FN160]. See CompuServe, 89 F.3d at 1260. CompuServe also sued Patterson's company, FlashPoint Development, but FlashPoint appeared to be no more than the name under which Patterson did business. See id. at 1259 n.1.

[FN161]. The terms of this agreement, like the general CompuServe Service Agreement and Rules of Operation, were displayed to Patterson on his computer screen in Texas. See id. at 1260. At various points in the document, Patterson was required to type "AGREE" in order to proceed. See id. at 1260- 61. Patterson's dispute with CompuServe does not present the issue of whether these contracts are enforceable.

[FN162]. Id. "Shareware" is software made available without charge to potential buyers who use the software for a trial period and, if they decide to continue using it, are expected to pay a licensing fee to the originator. See id. at 1260. Users of Patterson's shareware who chose to pay for it would remit payment to CompuServe; CompuServe would take a 15% fee and pay the balance to Patterson. See id.

[FN163]. See id. at 1260.

[FN164]. See id. at 1261.

[FN165]. See id.

[FN166]. See id.

[FN167]. See id.

[FN168]. See id.

[FN169]. See id.

[FN170]. Id. at 1262; see Ohio Rev. Code Ann. s 2307.832(A)(1) (Anderson 1995).

[FN171]. CompuServe, 89 F.3d at 1262.

[FN172]. See id. at 1263. The Sixth Circuit's treatment of the Ohio long- arm statute is fairly typical of federal courts' general attitude toward state long-arm statutes. The original authority for the proposition that the Ohio legislature intended its long-arm statute to extend jurisdiction to the limits permitted by due process is a federal case. See In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224-25 (6th Cir. 1972). The Ohio Supreme Court, however, has commented in dictum that this interpretation of the long- arm statute "is erroneous, since that interpretation would render the first part of the court's two-part analysis nugatory." Goldstein v. Christiansen, 638 N.E.2d 541, 546 n.1 (Ohio 1994) (citing John W. McCormac, Ohio Civil Rules Practice s 3.10 (2d ed. 1992) ("Ohio has not extended long-arm jurisdiction to the limits of due process. . . .")). Even Ohio state courts following Van Dusen, moreover, do not collapse the long-arm statute analysis into the due process analysis, as the CompuServe court does. Cf. Telco Communications v. An Apple A Day, 977 F. Supp. 404, 404 (E.D. Va. 1997) (noting that "Virginia's long-arm statute extends personal jurisdiction to the fullest extent permitted by due process. It may, however, be possible for the contacts of a non-resident defendant to satisfy due process but not meet the specific grasp of a Virginia long-arm statute provision.").

[FN173]. CompuServe, 89 F.3d at 1263. Other courts have considered this and related questions with various results. Compare, e.g., Heroes, Inc. v. Heroes Found, 958 F. Supp. 1 (D.D.C. 1996) (holding that maintenance in New York of World Wide Web page soliciting donations to charitable organization constitutes "transacting business" within the meaning of the District of Columbia long-arm statute) and Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996) (advertising on the Internet is "solicitation of sufficient repetitive nature" to constitute business solicited in Connecticut for purposes of Connecticut long-arm statute) with Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997) (finding that advertising on the Internet is not transacting business or offering product for sale in New York).

[FN174]. CompuServe, 89 F.3d at 1265.

[FN175]. A number of courts have streamlined the Supreme Court's specific jurisdiction analysis into three-pronged tests for jurisdiction, generally consisting of purposeful availment, relationship between contacts and claim, and reasonableness. See, e.g., Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997); United Elec., Radio and Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997); Van Schaack & Co. v. District Court, 538 P.2d 425, 426 (Colo. 1975); see also Expert Pages v. Buckalew, No. C-97-2109-VRW, 1997 W.L. 488011 at *2-3 (N.D. Cal. Aug. 6, 1997) (applying test with three prongs, one of which is itself composed of seven factors). Some courts number the prongs at four. See, e.g., Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356, 1359-60 (W.D. Ark. 1997); American Network, Inc. v. Access Am./Connect Atlanta, Inc., 975 F. Supp. 494 (S.D.N.Y. 1997). Other courts use five prongs. See, e.g., Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965); Superguide Corp. v. Kegan, 44 U.S.P.Q.2d 1770 (W.D.N.C. 1997); Rostad v. On-Deck, Inc., 372 N.W.2d 717, 719-20 (Minn. 1985).

[FN176]. See CompuServe, 89 F.3d at 1265.

[FN177]. See id. at 1267. The district court found the presence of Patterson's software on CompuServe's system in Ohio to be "entirely incidental to the alleged dispute between the parties." Id. The Sixth Circuit rejected this conclusion, but also noted that CompuServe's action arose out of Patterson's threats directed at CompuServe in Ohio, as well as from Patterson's use of CompuServe's system. See id.

[FN178]. Id. at 1268. Cf. Expert Pages v. Buckalew, 1997 WL 488011, at *3 (finding that, because "the California address of Expert Pages appears prominently on the first page of [its] website," defendant Buckalew "did direct activity at Expert Pages in California" when he copied information off the web site from his home in Virginia, but declining jurisdiction due to burden on defendant).

[FN179]. See CompuServe, 89 F.3d at 1261. Because no evidentiary hearing was held in the district court, the Sixth Circuit held that CompuServe needed only to make a prima facie showing of jurisdictional facts; Patterson's affidavit controverting those facts should not have been considered. See id. at 1261-62.

[FN180]. See id. at 1263.

[FN181]. This assertion is based, in part, on personal experience and an informal survey of CompuServe subscribers.

[FN182]. See CompuServe, 89 F.3d at 1264.

[FN183]. In this respect, CompuServe resembles another cyberjurisdiction case, PLUS System, Inc. v. New England Network, Inc., 804 F. Supp. 111 (D. Colo. 1992) (finding jurisdiction over Connecticut network of New England banks which had contracted to make use of plaintiff's automatic teller machine network processing facilities, operated from plaintiff's office and computer in Denver, Colorado).

[FN184]. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 466 (1985) (noting that Rudzewicz and his partner planned to operate one Burger King restaurant in the Detroit area).

[FN185]. 636 So. 2d 1351 (Fla. Dist. Ct. App. 1994).

[FN186]. See id. at 1351-52.

[FN187]. See id.

[FN188]. Cf. Burger King, 471 U.S. at 478 (noting that Burger King franchise agreement contemplated 20-year relationship between the parties).

[FN189]. See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1266 (6th Cir. 1996); Burger King, 471 U.S. at 481-82.

[FN190]. See Pres-Kap, 636 So. 2d at 1352-53. The two prior contracts with plaintiff's predecessor had contained forum selection clauses subjecting the parties to suit in Florida for any disputes arising out of the contract. See id.

[FN191]. See Burger King, 471 U.S. at 482 n.24.

[FN192]. Pres-Kap, 636 So. 2d at 1353.

[FN193]. Id. at 1353 n.2 (revealing that the court had called Westlaw and LEXIS customer service departments to find out where those services were located).

[FN194]. Id. at 1353.

[FN195]. See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1260 (6th Cir. 1996); Pres-Kap, 636 So. 2d at 1351.

[FN196]. 427 S.E.2d 326 (Va. 1993).

[FN197]. 631 F. Supp. 1356 (C.D. Cal. 1986).

[FN198]. See Krantz, 427 S.E.2d at 327-29.

[FN199]. See id. at 327.

[FN200]. See id.

[FN201]. See id.

[FN202]. See id.

[FN203]. The Air Line Pilots Association (ALPA) strike against Eastern ended in November 1989. See id.

[FN204]. See id.

[FN205]. See id.

[FN206]. See id.

[FN207]. See id.

[FN208]. See id. at 326-27.

[FN209]. Code of Virginia s 8.01-328.1(A)(4), allowing jurisdiction over a person who causes tortious injury in Virginia by an act outside Virginia, would not apply to this action because plaintiff was a Vermont resident, and the adverse messages constituting the interference were received in Colorado by a prospective contracting partner. See Krantz, 427 S.E.2d at 327-28.

[FN210]. Id. at 328.

[FN211]. Id. at 328-29.

[FN212]. See id. at 327.

[FN213]. For purposes of its long-arm statute, Virginia does not require a formal agency relationship to find that a person has acted "by an agent" in the state. Cf. John G. Kolbe, Inc. v. Chromodern Chair Co., Inc., 180 S.E.2d 664, 668 (Va. 1971) (finding jurisdiction over California company because third party who "transacted business" in state, but who had not been formally appointed representative for the company, clearly acted under defendant's direction and authority with respect to transaction at issue).

[FN214]. See Krantz, 427 S.E.2d at 327. ALPA's control over the content of the ACCESS bulletin board service (BBS), and its alleged willing participation in the campaign against Krantz and other strike-breaking pilots, distinguishes it from the position of a BBS operator or on-line service provider who neither monitors, nor exercises control over, the content of on- line messages. See Cubby v. CompuServe, 776 F. Supp. 135, 140 (S.D.N.Y. 1991) (finding that CompuServe was not liable for defamatory statements made on-line by its subscriber because, like a bookstore or library, CompuServe exercised no control over the contents of the material it made available).

[FN215]. Private communication with FedEx employee.

[FN216]. A user such as Nottke would not be linked directly to the Internet, but instead would most likely obtain access by dialing up a local bulletin board (which, if not operated on a networked computer, would provide such access through an account on yet another computer), or through a commercial on- line service or network. See Haran Craig Rashes, The Impact of Telecommunication Competition and the Telecommunications Act of 1996 on Internet Service Providers, 16 Temp. Envtl. L. & Tech. J. 49, 57-58 (1997). Moreover, e-mail does not travel directly from the sender's computer to the destination, or even from the sender's Internet connection to the destination, but rather may be routed through any number of intermediate computers and networks, depending on which computers might be out of service at any given time and whether electronic traffic is heavy or light. See Jonathan Rose, E- Mail Security Risks: Taking Hacks at the Attorney-Client Privilege, 23 Rutgers Computer & Tech. L. J. 179, 195-99 (1997).

[FN217]. California Software, Inc. v. Reliability Research, Inc., 631 F. Supp. 1356 (C.D. Cal. 1986).

[FN218]. See id. at 1357-58. Defendants were also alleged to have communicated by U.S. mail and telephone with three potential customers of plaintiff in California. See id. at 1361. The court found that either the direct communications with Californians or the communications over the computer network would independently support jurisdiction over defendants. See id.

[FN219]. See id. at 1358.

[FN220]. 465 U.S. 783 (1984).

[FN221]. California Software, 631 F. Supp. at 1361.

[FN222]. See id. "[S]uch intentional 'manipulation' of third persons who thereby refrain from consummating a contemplated transaction in California constitutes a forum-related activity by the defendants." Id. at 1362. "The recipients of [defendants'] message acted, in a sense, as [defendants'] alter ego, deflecting business away from California." Id.

[FN223]. By contrast, ten years later in Naxos Resources (U.S.A.) Ltd. v. Southam Inc., the United States District Court for the Central District of California refused to exercise jurisdiction in a libel case against the publisher of the Vancouver Sun, even though several hundred hard copies of the Sun circulate in California each week and the publication is available throughout California on the Internet, LEXIS, and Westlaw, because the allegedly defamatory statements concerned, not the California plaintiff, but its Canadian parent corporation. No. CV 96-2314 WJR (MCX), 1996 WL 662451, at *3 (C.D. Cal. Aug. 16, 1996). The court in Naxos also rejected the argument that general jurisdiction over the Sun's publisher could be premised on the Sun's regular circulation in California by means of the Internet, LEXIS, and Westlaw. See id. at *4. Plaintiff's argument on this point appears to have been based on Keeton v. Hustler Magazine, Inc., in which the Court held that defendant was subject to jurisdiction in New Hampshire because 10,000 to 15,000 issues of its allegedly defamatory magazine were circulated there, even though neither defendant nor plaintiff had any other significant contact with New Hampshire. 465 U.S. 770, 772-74 (1984). The Naxos court is not correct in characterizing Keeton as a case finding general jurisdiction-that is, jurisdiction to adjudicate claims unrelated to defendant's contact with the forum state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984). The Keeton Court plainly finds only specific jurisdiction over defendant. See Keeton, 465 U.S. at 773-74 ("Respondent's regular circulation of magazines in the forum State is sufficient to supportan assertion of jurisdiction in a libel action based on the contents of the magazine." (emphasis added)).

[FN224]. See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1260 (6th Cir. 1996) (noting that Patterson was a CompuServe subscriber).

[FN225]. See Krantz v. Air Line Pilots Ass'n, 427 S.E.2d 326, 327 (Va. 1993).

[FN226]. Much has been written about domain name disputes and the efforts that have been and should be made to resolve them. See, e.g., Alexander Gigante, Blackhole in Cyberspace: The Legal Void in the Internet, 15 J. Marshall J. Computer & Info. L. 413 (1997) (part of a Spring 1997 Symposium on Domain Names); Deborah Howitt, War.com: Why the Battles Over Domain Names Will Never Cease, 19 Hastings Comm. & Ent. L.J. 719 (1997); G. Andrew Barger, Cybermarks: A Proposed Hierarchical Modeling System of Registration and Internet Architecture for Domain Names, 29 J. Marshall L. Rev. 623 (1996); Carl Oppedahl, Essay, Analysis and Suggestions Regarding NSI Domain Name Trademark Dispute Policy, 7 Fordham Intell. Prop. Media Ent. L.J. 73 (1996).

[FN227]. A domain is "[a] group of computers and devices on a network that are administered as a unit with common rules and procedures. Within the Internet, domains are defined by the IP address. All devices sharing a common part of the IP address are said to be in the same domain." PC Webopaedia (visited Oct. 11, 1997) <http://www.pcwebopaedia.com/domain.htm>. The domain name is a name that identifies an IP address. See id. "Domain names are used in URLs to identify particular Web pages." Id. For example, in the URL http:// www.swlaw.edu/, swlaw.edu is the domain name. For a clear, complete, and occasionally witty rundown of domain name disputes, see Jonathan Agmon, et al., What's in a Name (visited Oct. 11, 1997) <http:// www.law.georgetown.edu/lc/internic/domain1.html>.

[FN228]. See Kenneth S. Dueker, Trademark Law Lost in Cyberspace: Trademark Protection for Internet Addresses, 9 Harv. J.L. & Tech. 483, 496 (1996).

[FN229]. On January 30, 1998, the Department of Commerce called for public comment on a proposed rule for the private management of Internet domain names, intended to address dissatisfaction with the system now administered by Network Solutions, Inc. (NSI). See A Proposal to Improve Technical Management of Internet Names and Addresses: Discussion Draft 1/30/98 (visited Feb. 4, 1998) < http://www.ntia.doc.gov/ ntiahome/domainname/dnsdrft.htm>.

[FN230]. See Stacy B. Sterling, New Age Bandits in Cyberspace: Domain Names Held Hostage on the Internet, 17 Loy. L.A. Ent. L.J. 733, 740-41 (1997).

[FN231]. See id.

[FN232]. See Agmon, et al., supra note 227.

[FN233]. See Hearst Corp. v. Goldberger, No. 96 Civ. 3620 (PKL) (AJP), 1997 WL 97097, at *18 (S.D.N.Y., Feb. 26, 1997).

[FN234]. See Panavision Int'l, L.P. v. Toeppen, 938 F. Supp. 616, 619 (C.D. Cal. 1996).

[FN235]. See Network Solutions, Inc. v. Clue Computing, Inc., where these facts are recounted. 946 F. Supp. 858 (D. Colo. 1996). Interestingly, Network Solutions, Inc. was an unsuccessful interpleader action brought by NSI under 28 U.S.C. s 1335 against both Clue Computing, Inc. (CCI) and Hasbro. See id. at 859. NSI attempted to "deposit" clue.com in court and let CCI and Hasbro fight over the rights to the name. See id. at 860. The district court, however, refused to allow NSI to proceed in interpleader because a state court injunction prohibited NSI from withdrawing clue.com from CCI. See id. at 861. As a result, the name was not within NSI's control and could not be delivered to the court for safekeeping. See id. at 860. NSI is frequently a defendant in the trademark infringement actions arising from domain name disputes. See, e.g., Toeppen, 938 F. Supp. at 616.

[FN236]. See Network Solutions, Inc., 946 F. Supp. at 859.

[FN237]. See id.

[FN238]. See Hasbro, Inc. v. Clue Computing Inc., No. 97-10065-DPW, 1997 U.S. Dist. LEXIS 18857, at *1-2 (D. Mass. Sept. 30, 1997). CCI moved to dismiss the Massachusetts action, but its motion was denied. See id.

[FN239]. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). Although not a domain name dispute, Bensusan Restaurant Corp. v. King presents a similarly cyberspatial problem. 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997). Plaintiff Bensusan operates the Blue Note jazz club in New York City. See Bensusan, 126 F.3d at 26. Defendant operates the Blue Note club in Columbia, Missouri. See id. In its trademark infringement action, Bensusan contended that the Missouri Blue Note's web page, available in New York (and the rest of the world), constituted the commission of a tortious act within the state of New York for purposes of New York's long arm statute. See id. at 28-29. The district court rejected this argument and dismissed the action against King. See Bensusan, 937 F. Supp. at 300-01. The Missouri Blue Note's World Wide Web page now carries the following disclaimer: "This site is operated by The Blue Note that operates only in Columbia Missouri. The Columbia Missouri The Blue Note is not affiliated in any way, shape, or form and should not be confused with any other club operating under The Blue Note name." Blue Note Cyberspot (visited Oct. 11, 1997) <http://www.thoughtport.com/ cyberspot/>.

[FN240]. Zippo, 952 F. Supp. at 1122 (quoting 42 Pa. Cons. Stat. Ann. s 5322(a)).

[FN241]. See id. at 1121.

[FN242]. Id. at 1126.

[FN243]. Id. at 1126-27.

[FN244]. See id. at 1123-25.

[FN245]. See id.

[FN246]. See, e.g., Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D. Conn. 1996) (finding jurisdiction over noninteractive World Wide Web site accessible in the state because it posted a toll-free number for interested viewers to call and was "available continuously" in the state). The Zippo court acknowledged that Inset Systems represents the "outer limits" of jurisdiction based on Internet contacts. 952 F. Supp. at 1125.

[FN247]. See, e.g., Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997); Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356, 1364 (W.D. Ark. 1997). But see Telco Communications v. An Apple A Day, 977 F. Supp. 404, 406 (E.D. Va. 1997) (disagreeing with Zippo that passive World Wide Web sites, without more, should not subject their authors to jurisdiction).

[FN248]. 958 F. Supp. 1 (D.D.C. 1996).

[FN249]. See id. at 3-5.

[FN250]. See id. at 3.

[FN251]. Id. at 5.

[FN252]. 975 F. Supp. 494 (S.D.N.Y. 1997).

[FN253]. Id. at 498. In an effort to fit this case into the Zippo framework, the court in SF Hotel Co., L.P. v. Energy Investments, Inc. stated that the American Network, Inc. court "found 'tangible manifestations that defendant was attempting to reach a New York market' through its Internet activity and had signed up subscribers in the New York market." 45 U.S.P.Q.2d 1308, 1311 (D. Kan. 1997). The American Network, Inc. opinion, however, gives no basis for believing that defendant Access America/Connect Atlanta targeted New York with its commercial activities, and reveals that only 6 of its 7,500 customers, paying a total of $150 per month, resided in New York. 975 F. Supp. at 495.

[FN254]. See 28 U.S.C. s 1338(a) (1996) (giving federal district courts original jurisdiction over trademark actions).

[FN255]. At least one commentator argues that jurisdiction should be available in the plaintiff's home state in cases involving alleged cyberspace- based trademark infringement, even if jurisdiction might not be available in analogous real-world cases, because the danger of confusion is greater in Internet communications, where the differing nature of the parties' businesses may not be apparent. See James H. Aiken, Comment, The Jurisdiction of Trademark and Copyright Infringement on the Internet, 48 Mercer L. Rev. 1331, 1334-37 (1997).

[FN256]. Heroes, 958 F. Supp. at 5 (quoting Sidco Indus. v. Wimar Tahoe Corp., 768 F. Supp. 1343, 1346 (D. Or. 1991)).

[FN257]. See SF Hotel Co., 45 U.S.P.Q.2d 1308, 1311 (distinguishing the case before it fromcases in which a defendant's World Wide Web page itself allegedly infringes plaintiff's trademark on grounds that, in the latter cases, the infringement is "directly connected with the Internet activity of the defendant").

[FN258]. See Ira S. Nathenson, Comment, Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction Over Squatters, Poachers and Other Parasites, 58 U. Pitt. L. Rev. 911, 947 (1997) (noting that the "arising out of" test is always met in domain name disputes because "the harm is rooted in the contacts via the use of the domain name").

[FN259]. 465 U.S. 770 (1984).

[FN260]. See id. at 776 (finding jurisdiction proper in New Hampshire because at least some of the harm occurred there and state had interest in redressing that harm).

[FN261]. 465 U.S. 783 (1984).

[FN262]. See id. at 788-89 (finding jurisdiction appropriate in plaintiff's home state, where brunt of harm would be suffered).

[FN263]. See, e.g., Clue Computing, (visited Feb. 3, 1998) <http:// www.clue.com> (indicating the reaction of CCI).

[FN264]. It might, for example, be argued that anyone using the name "Zippo" should anticipate trouble from the maker of the familiar lighter and should perhaps find out where the manufacturer is located. Even assuming, as the Supreme Court seems to, that ordinary business persons do or should structure their primary conduct with an eye toward personal jurisdiction, see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985), it is not always possible to locate one's potential plaintiffs. As a trademark, the word "Clue," for example, is registered to six different users, for six different products worldwide, in addition to Hasbro's board game. See Carl Oppedahl, Brief Amicus Curiae in Support of Motion to Dismiss Network Solutions, Inc., v. Clue Computing Inc. (last modified Oct. 8, 1996) <http://www.patents.com/ clue/dism.sht>.

[FN265]. CompuServe, 89 F.3d at 1268.

[FN266]. See, e.g., Craig W. Harding, On-Line Distribution of Multimedia Products, in Multimedia and the Law 1996: Protecting Your Clients' Interests 425, 427 (PLI/PAT 1996) (describing just such an automated distribution system).

[FN267]. Would the reasonable vendor even believe such efforts would be effective? Various efforts have been made to restrict the flow of transactions across certain jurisdictional borders. The United States government, for example, contends that the export of certain software encryption programs threatens national security; sites making these programs available for downloading are required to ascertain that users are not foreign nationals or located in foreign countries. The state of Minnesota takes the position that the transmission of advertising for on-line gambling on web pages available to computer users in Minnesota violates Minnesota laws against gambling; purveyors of such services routinely include on their web pages warnings that the service is not available in Minnesota. See Minn. Stat. Ann. s 609.025 (West 1987); Minnesota v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. App. 1997); see also Scott M. Montpas, Gambling On-Line: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling, 22 U. Dayton L. Rev. 163, 178 (1996). Germany ordered CompuServe to cease making certain pornographic material available to subscribers in Germany, which caused CompuServe briefly to shut down its services in Germany. See John T. Delacourt, The International Impact of Internet Regulation, 38 Harv. Int'l. L. J. 207, 212 (1997). None of these efforts has been noticeably successful in preventing the transmission of forbidden material wherever people want to receive it. The fundamental defense purpose of the Internet-its raison d' tre- was to create a network so independent of geography that it would continue to function even after major population centers had been destroyed by nuclear attack.

[FN268]. No. CIV. 3:96CV523 JBA, 1997 WL 805282 (D. Conn. Sept. 30, 1997).

[FN269]. See id. at *1.

[FN270]. See id.

[FN271]. See id. at *3-4.

[FN272]. No. CIV. 4:97CV181, 1997 WL 754467 (W.D.N.C. Oct. 8, 1997).

[FN273]. See id. at *5-6.

[FN274]. See id. at *5.

[FN275]. See id.

[FN276]. See id.

[FN277]. See id.

[FN278]. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

[FN279]. P. Hilts, Cornell Finds Evidence 'Virus' Existed Weeks Ago; National Computer Sabotage Probed, Wash. Post, Nov. 5, 1988, at A1.

[FN280]. See United States v. Morris, 928 F.2d 504, 505 n.1 (2d Cir. 1991).

[A] "worm" is a program that travels from one computer to another but does not attach itself to the operating system of the computer it "infects." It differs from a "virus," which is also a migrating program, but one that attaches itself to the operating system of any computer it enters and can infect any other computer that uses files from the infected computer.

Id.

[FN281]. See id. at 506.

[FN282]. 18 U.S.C. s 1030(a)(5)(A) (1988). Morris was convicted, fined $10,000 and sentenced to three years' probation and 400 hours of community service. See James Daly, Virus Vagaries Foil Feds, Computerworld 1, July 12, 1993, at 1.

[FN283]. See Morris, 928 F.2d at 505-06.

[FN284]. See id.

[FN285]. In an effort to ensure that the worm did not copy itself onto any computer more than once, Morris programmed the worm to "ask" each computer whether it already had a copy, and to copy itself only onto computers where the answer was "no." See id. at 506. However, fearing that programmers would learn of the worm and prevent it from taking up residence by programming their own computers to answer "yes" when questioned by the worm, Morris instructed the worm to copy itself every seventh time it received a "yes" response. See id.

As it turned out, Morris underestimated the number of times a computer would be asked the question, and his one-out-of-seven ratio resulted in far more copying than he had anticipated. The worm was also designed so that it would be killed when a computer was shut down, an event that typically occurs once every week or two. This would have prevented the worm from accumulating on one computer, had Morris correctly estimated the likely rate of reinfection.

Id.

[FN286]. See id.

[FN287]. It seems plain that Morris would be liable in tort to the persons whose computers his worm rendered unusable, although on precisely what theory is unclear. In one case involving a computer virus that allegedly "caus[ed] the destruction of [the] Plaintiff's business records and caus[ed] satanic and sexually profane language to appear on the computer's screen," the complaint alleged theories of intentional interference with business relations, intentional interference with prospective business advantage, conversion, and nuisance. See In re Brandl, 179 B.R. 620, 622 n.4 (Bankr. D. Minn. 1995). Defendant Brandl defaulted on the complaint made by his former employer North Tel, Inc., so the validity of these causes of action was never tested. See id. at 623.

[FN288]. See Daly, supra note 282, at 1.

[FN289]. See Morris, 928 F.2d at 506.

[FN290]. See id.

[FN291]. Morris's federal criminal prosecution took place in Syracuse, New York, seat of the United States District Court for the Northern District of New York, the district in which Cornell University is located. Because criminal offenses are conceived as injuries to the state as well as to any person who might be affected, criminal trials are invariably held in the place where the offense was committed, on the theory that only the offended sovereign has the right to prosecute the perpetrator of the offense. See L. Brilmayer, An Introduction to Jurisdiction in the American Federal System 321 (1986). Moreover, the Constitution restricts criminal trials in the state and federal courts to the state or district where the offense was committed. See U.S. Const. art III, s 2; amend. VI. State and federal courts can exercise personal jurisdiction over a criminal defendant only if the defendant is physically present in the state at the time of trial. See Brilmayer, supra, at 329. Morris, who had been expelled from Cornell and had returned to his home in Maryland before he was indicted, evidently submitted himself to the jurisdiction of the court in Syracuse by voluntarily appearing at trial.

[FN292]. See, e.g., Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095, 1117 (1996) (commenting on "all or nothing" result of traditional jurisdictional analysis applied to the Internet); Leif Swedlow, Note, Three Paradigms of Presence: A Solution for Personal Jurisdiction on the Internet, 22 Okla. City U. L. Rev. 337, 370-81 (1997) (proposing, in addition to jurisdiction everywhere or only where defendant or his computer is located, a third possibility: that a person whose transactions are entirely cyberspatial might be found to have contacts in no place at all).

[FN293]. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980).

[FN294]. See, e.g., Bovino v. Brumbaugh, 534 A.2d 1032 (N.J. Super. 1987) (finding that New Jersey courts had no jurisdiction over physician who treated Pennsylvania resident's eyes); Greate Bay Hotel & Casino, Inc. v. Saltzman, 609 A.2d 817 (Pa. Super. 1992) (enforcing New Jersey default judgment against Pennsylvania defendant over challenge to jurisdiction of New Jersey court); First Fidelity Bank, N.A., N.J. v. Standard Mach. & Equip. Co., 581 A.2d 629 (P.A. Super. 1990) (same).

[FN295]. See Hearst Corp. v. Goldberger, No. 96 Civ. 3620 (PKL) (AJP) (S.D.N.Y. 1997). After winning this ruling from the magistrate judge, Mr. Goldberger evidently decided he could bear the burden of litigating in Manhattan and answered the complaint. See Ari Goldberger, Esquire: Your Firm Away from Firm (visited Feb. 4, 1998) <http://www.esqwire.com>. The action was subsequently settled, evidently to Mr. Goldberger's satisfaction, and he now markets his skills as a domain name litigator on the subject web page. See id. Mr. Goldberger's adventures can be followed on his web page. See id.

[FN296]. See Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996).

[FN297]. See Edias Software Int'l, L.L.C. v. Basis Int'l Ltd., 947 F. Supp. 413 (D. Ariz. 1996).

[FN298]. This point has been made by numerous commentators. See, e.g., Russell J. Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28 U.C. Davis L. Rev. 531, 545-46 (1995).

[FN299]. The recent case of Expert Pages v. Buckalew is an exception. No. C-97-2109-VRW, 1997 WL 488011 (N.D. Cal. Aug. 6, 1997). Buckalew, a "young adult" from Virginia, allegedly copied Expert Pages' web site for the purpose of soliciting Expert Pages' customers for Buckalew's own web-based enterprise. Id. at *1. The court denied jurisdiction over Buckalew, despite a finding that his conduct constituted minimum contacts with California, in part because his business had only twelve paying customers, as compared to Expert Pages, described by its owner as "the largest free on-line expert witness and consultant Website and database for the legal profession." Id. at * 4. "Buckalew does not appear to have any other commercial or business activities" apart from his web site, he "resides on the other side of the country," and he "is a pro se defendant." Id. On this basis, the court finds no jurisdiction, concluding that "Buckalew would be deprived of an opportunity to defend himself" if the case were to proceed against him in California. Id. at * 5. The converse of Buckalew's situation, in which jurisdiction is found because a defendant faces no measurable inconvenience from suit in the forum state, does not occur because jurisdictional doctrine does not permit the court to reach the burden on defendant argument until minimum contacts have been found.

[FN300]. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987) (listing "the burden on the defendant" among what have come to be known as the "reasonableness" or "Gestalt" factors).

[FN301]. See, e.g., Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F. Supp. 456, 462-63 (D. Mass. 1997) (calculating the distance by plane between Boston and California and calling it "the price of [defendant's] agreeing to do business involving the Internet under the circumstances of this case"); Cody v. Ward, 954 F. Supp. 43, 47 n.9 (D. Conn. 1997) ("The widespread use of facsimile equipment and overnight mail and the courts' increasing use of telephone conferences in lieu of live conferences reduces the burden on nonresidents of litigating in a distant state.").

[FN302]. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 483-84 ("And even to the extent that it is inconvenient for a party who has minimum contacts with a forum to litigate there, such considerations most frequently can be accommodated through a change of venue.").

[FN303]. See, e.g., CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261 (6th Cir. 1996).

[FN304]. Some commentators have proposed that the jurisdictional analysis in cyberspace-based disputes should take into account a wider range of factors than in ordinary cases. See, e.g., Nathenson, supra note 258, at 946 (suggesting that presence of jurisdiction in a domain name dispute should depend in part on whether defendant's allegedly infringing use of name is likely to be found to have been in good faith); David Thatch, Note and Comment, Personal Jurisdiction and the World-Wide Web: Bits (And Bytes) of Minimum Contacts, 23 Rutgers Computer & Tech. L. J. 143, 176 (1997). Because the fact-specific nature of the inquiry renders the doctrine unpredictable, and its very unpredictability renders it unjust, proposals for reform of personal jurisdiction for cyberspace that increase the number of relevant factors must be rejected.

[FN305]. Patterson, for example, appeared pro se to successfully challenge trial court jurisdiction in Ohio in CompuServe, but had his protection stripped from him by the court of appeals, where he did not appear. 89 F.3d at 1261.

[FN306]. In other contexts, a defendant's inability to determine the cost of defaulting in an action is itself a violation of due process. See, e.g., In re Marriage of Lippel, 801 P.2d 1041, 1043 (Cal. 1990).

It is fundamental to the concept of due process that a defendant be given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend.

Id.

[FN307]. Pennoyer v. Neff, 95 U.S. 714 (1877).

[FN308]. International Shoe Co. v. Washington, 326 U.S. 310 (1945).

[FN309]. See, e.g., Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984) ("[W]e do not think that such choice-of-law concerns should complicate or distort the jurisdictional inquiry.").

[FN310]. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

[FN311]. See, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (holding that Minnesota court could apply Minnesota law to interpret insurance contract entered into in Wisconsin by Wisconsin residents in action arising out of death of Wisconsin insured in accident with Wisconsin uninsured motorist in Wisconsin). For a collection of largely critical commentary on the Supreme Court's decision in that case, see, for example, Symposium: Conflict-of-Laws Theory After Allstate Insurance Co. v. Hague, 10 Hofstra L. Rev. 1 (1981).

[FN312]. Stanley Cox has argued that a court should always be considered to be applying its own law even in cases where it purports to be interpreting and applying the law of another state. See Stanley E. Cox, The Interested Forum, 48 Mercer L. Rev. 727, 731 (1997) [hereinafter Cox, Interested Forum]; Stanley E. Cox, Razing Conflicts Facades to Build Better Jurisdiction Theory: The Foundation-There Is No Law But Forum Law, 28 Val. U. L. Rev. 1, 3-9 (1993) [hereinafter Cox, Forum Law]. As an arm of a particular government, a court can only exercise the power of that state; moreover, the notion that a court can apply the law of another state overemphasizes the doctrinal aspect of law and understates the effect of being judged by agents of a foreign government or a jury not of one's peers. See Cox, Interested Forum, supra; Cox, Forum Law, supra.

[FN313]. David R. Johnson & David G. Post, Law and Borders-The Rise of Law in Cyberspace, 48 Stanford L. Rev. 1367, 1367 (1996).

[FN314]. See, e.g., I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993, 1019-21 (1994); Tamir Maltz, Customary Law and Power in Internet Communities, 2 J. of Computer Mediated Comm. (visited Feb. 4, 1998) <http:// jcmc.mscc.huji.ac.il/vol2/issue1/custom.html>; Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1 (1996).

[FN315]. See, e.g., Maltz, supra note 314, at n.62 ("Cybercommunities are increasingly facing interference from physical communities. Electronic pornography, e-mail harassment, defamation, etc., are familiar activities in a new setting which are increasingly attracting lawyers' and legislators' attention." (emphasis added)); Peter Ludlow, Laws Within Cyberspace, forthcoming in FringeWare Review; John Perry Barlow, Declaration of Independence for Cyberspace (last modified Feb. 8, 1996) <http:// www.clas.ufl.edu/users/seeker1/cyberanthro/decl-indep.html>.

[FN316]. See Perritt, supra note 314, at 101 (proposing the creation of a United States court for cyberspace, but noting that implementation of the Seventh Amendment in cyberspace might prove problematic).

[FN317]. See, e.g., Graphics, Visualization and Usability Center, WWW User Surveys (visited Oct. 11, 1997) <http://www.cc.gatech.edu/gvu/usersurveys/>.

[FN318]. See, e.g., Claire Moore Dickerson, Closing Remarks: Serial Killings of Communications; Dumbing-Down of Information Analysis: The Internet and Its Larger Impact, 11 St. John's J. Legal Comment 739, 741-42 (1996) (expressing concern about the effects of anonymity and detachment in Internet interactions).

[FN319]. See U.S. Const. art. IV, s 1 ("And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."). See Wendy Collins Perdue, Personal Jurisdiction and the Beetle in the Box, 32 B.C. L. Rev. 529, 563-70 (1991) (proposing Full Faith and Credit Clause as "more promising" source of authority for federal courts to impose constitutional limits on plaintiff's choice of forum, while noting that the Clause explicitly gives Congress this authority); cf. Michael H. Gottesman, Draining the Dismal Swamp: The Case for Federal Choice of Law Statutes, 80 Geo. L.J. 1, 23-28 (1991) (arguing that Congress can and should exercise its power under Article IV section 1 to enact a federal choice of law statute); Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 310 (1992) (noting that the Full Faith and Credit Clause requires Congress or the courts to specify conflict rules).

[FN320]. It has been suggested that the needs of cyberspace require more, rather than less, emphasis on purposeful availment. See, e.g., Corey B. Ackerman, Note, World-Wide Volkswagen, Meet the World Wide Web: An Examination of Personal Jurisdiction Applied to a New World, 71 St. John's L. Rev. 403, 428-32 (1997). It is not clear why the result of technology expanding one's contacts and transactions should be a rule contracting one's exposure to suit, however.

[FN321]. See, e.g., Russell Weintraub, supra note 298, at 546-47 & n.99 (1995); Linda Silberman, Reflections on Burnham v. Superior Court: Toward Presumptive Rules of Jurisdiction and Implications for Choice of Law, 22 Rutgers L.J. 569, 589 (1991).

[FN322]. Weintraub, supra note 298, at 547.

[FN323]. As an example of such legislation, Carol Bruch points to the Uniform Child Custody Jurisdiction Act as a popular and successful legislative solution to problems created, in part, bythe Supreme Court's blunders in the area of jurisdiction. See Bruch, supra note 34, at 1051-53.

[FN324]. Under this rule, Volkswagen and, possibly, Keeton would be acknowledged to have been wrongly decided.

[FN325]. A model for the substance of this inquiry can be found in the opinion of Judge Weinstein in In re DES Cases, 789 F. Supp. 552, 587 (E.D.N.Y. 1992).

[FN326]. Indeed, after successfully contesting jurisdiction, even Goldberger came to this conclusion. See Goldberger, supra note 295.

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