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George Mason Law Review




Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not in the trial court at least on appellate review. But exceptions stand out—the English manufacturer that structures its sales to evade United States jurisdiction for injuries in New Jersey where it shipped the defective machine. Not only do a few high-profile cases underscore the test’s failure, there’s a larger concern of the framed analysis in cases that do not come to light, the lower-damage cases in close-call fact patterns that can be routinely dismissed with no appeal or a rubber stamp affirmance. Defendant’s due process thumb on the scale no doubt has at least the same effect in those cases, which are unmeasurable but no doubt occur with at least the frequency as the McIntyre evasions.

The framed amenability test is contrary to forum-access rights dating to at least the Twelfth Century, expressly adopted by the American colonies, incorporated in Article III and six constitutional clauses, reflected in case law apart from the amenability test, but ignored over the last half-century of International Shoe’s development. Recent Supreme Court opinions suggest that changing times and technology require a new look at jurisdiction. Based on the considerable history offered here, that revision should focus on the parties and analyze rights versus rights, eliminating or reducing the ill-defined governmental interest analysis.

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George Mason University School of Law

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