Personal jurisdiction and the Internet has troubled the courts from the first. The analysis the court offered in Zippo Manufacturing Co. v. Zippo DOT Com, Inc. on its face appeared helpful for dealing with personal jurisdictional issues by the use of a "sliding scale": "[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." putting aside the failure of many courts to restrict Zippo to its facts, The author argues that the Zippo court's analysis of specific personal jurisdiction in the Internet or cyberspace context is fundamentally flawed; additionally, many courts when applying the Zippo analysis have failed to restrict Zippo to its facts. The sliding-scale analysis in Zippo departs from specific personal jurisdictional analysis that has survived the test of time and that has proven to be the doctrine's Achilles' heel. The Zippo sub-doctrine turns the constitutional requirements of specific personal jurisdiction on its head and invalidates Supreme Court jurisprudence on the requirements of specific personal jurisdiction. The author provides discussion that courts still using Zippo are moving in the wrong direction and should, in fact, discourage the systemic and robotic application of the flawed and dying Zippo sub-doctrine.
Zippo is Dying, Should It Be Dead?: The Exercise of Personal Jurisdiction by U.S. Federal Courts Over Non-Domiciliary Defendants in Trademark Infringement Lawsuits Arising Out of Cyberspace,
9 Marq. Intellectual Property L. Rev. 37
Available at: http://scholarship.law.marquette.edu/iplr/vol9/iss1/2