Personal Jurisdiction Based on the Local Effects of Intentional Misconduct

b. The Court Might Have Required Contacts with States as Incorporeal Entities, but Such a Requirement Would Be Incoherent If Walden did not focus on contacts with the forum's territory, then it must have focused on contacts with the forum as a government entity. Yet legal entities have no corporeal existence aside from their territory, so there is nothing else to contact directly. States as entities exist through their institutions, agents, and laws. These manifestations of the state in turn define interests that the state seeks to protect, such as the well-being of its residents and markets. (165) If Walden meant to require contact with a state as a legal entity, then the Court's distinction between contacts with a state and with its residents is incoherent. There was no way for Walden to have contacts with the entity "Nevada" other than by interacting with a manifestation of Nevada's existence, such as an institution or resident. (166) Walden had such an interaction when he deprived Nevada residents of Nevada-based property. Deeming Walden to have no contacts "with Nevada" despite his contacts with local residents and property ignores Nevada's incorporeal attributes. (167) Having ignored these incorporeal facets of Nevada's existence, the Court failed to explain what contact "with the State" could mean. Walden's contacts with manifestations of Nevada do not necessarily mean that jurisdiction was appropriate. Residents of different states routinely interact without subjecting themselves to jurisdiction in each other's domiciles. The difference between interactions that create jurisdiction and interactions that do not hinges on the nature and consequences of the activity. Courts should not evade this complex inquiry by searching for ethereal contacts with the state "itself." (168) c. Whether the Forum/Resident Distinction Requires Contact with Territory or an Entity, It Needlessly Revives Archaic Formal Approaches to Jurisdiction that the Court Repudiated in International Shoe Interpreting Walden to require direct contacts between the defendant and the forum "itself' would revive archaic theories that the Court rejected seventy years ago. The modern history of personal jurisdiction doctrine, in a nutshell, has three phases. First, the Court in Pennoyer v. Neff held that a state could exercise jurisdiction only over defendants who were present "within its territory" at the time of service. (169) Second, courts relaxed the "presence" requirement by allowing jurisdiction based on "fictions" such as "constructive presence" in the forum at the time of wrongdoing. (170) The idea was that even an incorporeal defendant, such as a corporation, could be present based on activities it caused to occur within the forum. As Judge Learned Hand explained, "[w]hen we say ... that a corporation may be sued only where it is 'present,' we understand that the word is used, not literally, but as shorthand for something else." (171) Third, the Court in International Shoe Co. v. Washington (172) "abandoned" the "presence" test in favor of focusing on the defendant's "contacts" with the forum. (173) Jurisdiction became appropriate when the defendant had "sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which appellant has incurred there." (174) International Shoe's analysis was transformative. (175) Yet courts confronting unsettling new problems often overlook Shoe's insights. (176) International Shoe considered a state's effort to tax an out-of-state corporation's local employees. The corporation disputed jurisdiction because it had carefully structured its operations to minimize its local presence: employees solicited orders in the state, but contracts were accepted and fulfilled outside the state. (177) These facts presented an opportunity for the Court to refine the presence inquiry. …