The Persistent Problem of Purposeful Availment

For the second time in twenty-five years, personal jurisdiction has perplexed the U.S. Supreme Court. The problem is purposeful availment. All of the Justices agree that specific jurisdiction does not exist without purposeful availment, but the Court could not cobble together a majority opinion in J. McIntyre Machinery, Ltd. v. Nicastro to clarify what purposeful availment means or what it requires.This Article sets forth a simple — yet meaningful and necessary — solution. Purposeful availment is best understood by its negative: no court should find a nonresident defendant subject to personal jurisdiction for a contact with the forum state that the defendant could not reasonably prevent. Put another way, where it is not reasonably feasible for a defendant to sever its connection with the state, purposeful availment does not exist. Conversely, where it is reasonably feasible for a defendant to prevent its contact with a state but it has not done so, there is presumptively purposeful availment and, subject to the fairness balancing, specific jurisdiction.This principle is consistent with the understanding reached by the Court more than twenty-five years ago and shared by a majority of the current Justices that personal jurisdiction is an individual liberty interest that is protected by the Due Process Clause. Because it is an individual liberty interest, the purposeful availment requirement must be applied in such a manner that an economic actor can structure its conduct so as to avoid subjecting itself to jurisdiction in a disfavored forum.Application of this principle leads to clear, but certain to be controversial, resolution of several questions left unresolved by the Court in McIntyre v. Nicastro. It also makes clear that Nicastro itself was wrongly decided. First, component part manufacturers generally do not control the distribution and point of sale of the end product into which their component part is incorporated. Thus, absent some additional conduct targeting the forum state, component part manufacturers do not purposefully avail themselves of a particular state where the end product is sold, even where there is a regular flow of a large quantum of the component parts into that state. Second, end product manufacturers retain nearly complete control over the initial point of sale of their products. Thus, an end product manufacturer has purposefully availed itself of every state where the product is sold to consumers — even where the manufacturer sold the product to a distributor who sold the product to a retailer who sold the product to a consumer. Third, a manufacturer who markets its product nationwide has purposefully availed itself of every state where the product is sold and causes injury.