Kill Calder v. Jones!

It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical :

“Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s website. Roberts did not travel to Ohio; indeed, he has never been to that State. After Roberts received the engine, he found it defective, but after various exchanges of communications between Roberts and Kauffman, Kauffman refused to refund Roberts’ purchase price. Roberts then began a campaign of posting comments criticizing Kaufmann on several websites related to automotive equipment. Kauffman alleges that these comments constitute defamation and intentional interference with contracts and business relationships. Question: Based on these facts alone, and assuming no other contacts between Roberts and the state of Ohio, can an Ohio state court exercise personal jurisdiction over Roberts?”

It’s not a hypothetical, but a real case, and Ohio Supreme Court answered in the affirmative, relying on my 3rd-least-favorite Supreme Court case of all time, Calder v. Jones. In Calder, the Court allowed a California court to exercise personal jurisdiction over the authors of an article that a California resident, Shirley Jones, alleged to be defamatory. The authors of the article lived in Florida, and had no contacts with the State of California other than (a) the “knowledge” that Ms. Jones lived in California (and that therefore the “harm” would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.

It’s absurd. A doctrine that allows a finding that you have had the requisite “minimum contacts” with New Mexico sufficient to satisfy the Due Process Clause simply on the grounds that you have said nasty things – even defamatory things – about someone whom you happen to know lives in New Mexico has always struck me as profoundly odd and misguided, and it has given lower courts fits over the years. Among other peculiarities, basing the inquiry on what the defendant does or does not know brings you into a hopeless swamp of uncertainty; it’s fair to haul me into a New Mexico court if I know that the mail order place where I buy my guitar strings is located in New Mexico, but not if I don’t know that? And that makes sense because . . .?

It would be nice to take Calder out of its misery once and for all. The folks over at Mayer Brown, with the Yale Supreme Court clinic, are (more or less) trying to do that; they have submitted a petition for certiorari in the Roberts v. Kauffman case. The petition’s a nice piece of work – if any of you happen to be studying these issues for that Civ Pro 101 or Cyberlaw exam, you could do a lot worse than reading it over for a very clear statement of what the law in this area looks like. I’m not enough of a Court-watcher to know whether the Court would, if it grants cert, do the sensible thing and overrule (or at least narrow into non-existence) the Calder doctrine – the prospect of the Court hearing the case and re-affirming (or even, heaven forbid, strengthening) the doctrine does, I admit, make me a little nervous (though maybe someone who knows the predilections of our Justices better than I do can reassure me on that score).