What *International Shoe* Left Open

What International Shoe Left Open

Before International Shoe Co. v. Washington, a court's power to render a personal judgment rested on its de facto power over the defendant's person. The defendant's presence within the forum's territory was therefore a prerequisite.¹ International Shoe changed the factual test courts apply and also the way they think and speak about jurisdictional problems.² Its facts show why the old test failed. The defendant was a Delaware corporation with its principal place of business in Missouri. About a dozen salesmen who lived in Washington solicited orders from retailers and sent the offers to St. Louis, where the company accepted or rejected them. The company shipped shoes from Missouri and received payment there. It had no office or factory in Washington and kept no stock of merchandise in the state.³ A presence test invites the argument that such a company was not in Washington at all.

The Court answered with a new standard. Once personal service of summons had replaced the older process, due process required only that a defendant not present in the forum have “certain minimum contacts” with it, such that maintaining the suit does not offend “traditional notions of fair play and substantial justice.”⁴ Presence had stopped doing real work. A corporation acts only through agents, so calling it “present” in a state only labels those agent activities that courts consider enough to satisfy due process.⁵ Shaffer later observed that the older “doing business” tests had always been trying to ascertain what dealings make it just to subject a foreign corporation to local suit, and that International Shoe acknowledged as much.⁶

The benefits a state confers carry the justification. A corporation that conducts activities in a state enjoys the benefits and protection of its laws. When obligations arise out of or connect with those activities, a procedure requiring the corporation to answer a suit on them can hardly be called undue.⁷ Because fairness drives the inquiry, no count of contacts can settle it. The answer depends on the quality and nature of the activity in relation to the fair and orderly administration of the laws, and due process does not permit a binding personal judgment against a defendant with which the state has no contacts, ties, or relations.⁸ Shaffer summed up the shift: the relationship among the defendant, the forum, and the litigation replaced the mutually exclusive sovereignty of the states as the central concern.⁹

The shoe company's facts and the opinion's description of weaker contacts mark the two sides of the test. The salesmen's activities in Washington were neither irregular nor casual. They were systematic and continuous, they produced a large volume of interstate business, and the obligation sued on arose out of those very activities, so the suit could proceed.¹⁰ The opinion contrasts the casual presence of a corporate agent, or his conduct of single or isolated items of activity, which does not support suit on a cause of action unconnected with that activity.¹¹ Two facts move the answer: how continuous the forum activity is, and how closely it connects to the claim.

The opinion states the test entirely in terms of a judgment in personam, and that wording left a gap. Pennoyer's theory of jurisdiction over property had treated a judgment against property as something other than a judgment against its owner, a premise Shaffer later rejected.¹² A standard written for personal judgments therefore did not reach proceedings against property on its face. As Shaffer put it, no equally dramatic change followed in the law of jurisdiction in rem, although some lower courts had begun to doubt that property's presence in a state lets that state adjudicate rights unrelated to it.¹³ For more than thirty years courts did not know whether they could still exercise in rem or quasi in rem jurisdiction over an asset simply because it could be found in the forum and attached, or whether the contacts framework governed those cases too.¹⁴

The two routes to one forum produced opposite results, and the only justification for the difference was the premise that a judgment against property leaves its owner untouched. That premise was already under strain. The Court had held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give its owners actual notice. That holding recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the owner by divesting him of his rights in the property. Mullane added that Fourteenth Amendment rights cannot depend on whether an action is classified as in rem or in personam.¹⁵ The remaining question was whether the fairness inquiry that governs personal judgments also governs a state's power to adjudicate rights through property within its borders. The Delaware case taken up next forced the Court to answer it.