Allan Ides


It is emphatically the duty of the U.S. Supreme Court to say what the law is. The constitutional law of personal jurisdiction is entirely judge-made and, therefore, Court decisions have serious consequences for those who seek redress for their injuries. In the October 2010 term, when the Court granted certiorari in the products-liability case J. McIntyre Machinery, Ltd. v. Nicastro, it was poised to ameliorate a state of confusion surrounding the personal jurisdiction “stream-of-commerce” doctrine. Since 1987, lower courts, litigants, and scholars have struggled to apply the conflicting personal jurisdiction standards that the Court announced in Asahi Metal Industry Co., Ltd. v. Superior Court. Some courts have applied the “pure” stream-of-commerce standard that Justice Brennan championed in Asahi, while others have required litigants to meet Justice O’Connor’s more stringent “plus” stream-of-commerce model.

This Foreword explains how those who look to the J. McIntyre opinion to clarify the law of personal jurisdiction in products liability cases—and to fulfill the Court’s responsibility to attend well to constitutional doctrines—will be sorely disappointed. First, this Foreword criticizes Justice Kennedy’s plurality opinion for its flawed interpretation of precedent, for its conclusory legal analysis, and for failing to clarify the doctrinal standards. Then, this Foreword laments how Justice Breyer’s concurrence manipulates the facts of the case to fit his fabrication of the applicable doctrine. Finally, this Foreword shows how Justice Ginsburg’s dissent focuses on the narrative while it fails to address the central question in J. McIntyre; thus, it plays an active role in the Court’s giant leap backward. With each opinion so lacking in care and judgment, lower courts will continue to muddle through the questions left open in Asahi, questions now burdened with the unhelpful J. McIntyre overlay. In the judiciary’s role to say what the law is, the U.S. Supreme Court in J. McIntyre let us all down.

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