In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much needed infusion of clarity and simplicity into the law of personal jurisdiction by providing a straightforward standard that courts could apply to evaluate assertions of jurisdiction over intentional tortfeasors, and by unifying the purposeful availment, relatedness, and reasonableness inquiries where intentional torts are at issue, many lower courts have been reluctant to embrace the broad jurisdictional ramifications of the decision and have opted instead to interpret the case in ways that narrow the scope of its jurisdictional grant. The result of this reluctance has been the denial of jurisdiction in cases where a proper application of Calder's holding would suggest that jurisdiction is appropriate, and the continued utilization of complex and unpredictable approaches to determining the propriety of assertions of personal jurisdiction over intentional tortfeasors. More importantly, lower courts' continuing reluctance to embrace fully the jurisdictional vision of Calder frustrates plaintiffs' ability to sue in their home states and impedes the effort initiated by the Calder Court to empower states to resolve all disputes arising from harms directed into their territory.

Last June, in Schwarzenegger v. Fred Martin Motor Co., the United States Court of Appeals for the Ninth Circuit illustrated this phenomenon when, faced with a claim of infringement on actor Arnold Schwarzenegger's right of publicity, it held that the unauthorized use of the movie star's image and likeness in an Ohio advertisement was an personal jurisdiction in California courts. By so doing, the Ninth Circuit in Schwarzenegger refused to allow jurisdiction under a set facts that clearly met the standard articulated by the Supreme Court in Calder. This error was an outgrowth not only of the Ninth Circuit's use and misapplication of its own adulterated version of the Calder test, but also of the court's confusion-a confusion shared by many courts-regarding the proper scope of state court jurisdiction in the intentional torts context in the wake of Calder.

Part I of this article will discuss the Calder opinion and argue that its jurisdictional vision was an expansive one that intended to permit the assertion of jurisdiction by states over all disputes arising out of harms directed into their territory. Part II will review Ninth Circuit cases interpreting and applying the Calder decision, revealing a string of decisions that eventually misconstrued the jurisdictional ideal suggested in Calder. Part III will discuss the Schwarzenegger decision and where the Schwarzenegger court's analysis went wrong, ultimately concluding that the court's shift of focus to the aim of Fred Martin's advertisement rather than of the tort allegedly contained within it allowed the court to find the requisite "express aiming" to be lacking. Part IV suggests that the Schwarzenegger decision is a manifestation of deeper doctrinal confusion in the Ninth Circuit, arguing that the Ninth Circuit's iteration of the Calder "effects" test used in Schwarzenegger is unfaithful to the standard established in Calder. The Article concludes with a proposal for a much needed revision to the Ninth Circuit test.

Document Type


Publication Date

Fall 2004

Publication Information

26 Whittier Law Review 197-223 (2004)