In Nicastro, the Supreme Court pared back the utility of the “stream of commerce.”
The imprecision arising from Asahi, for the most part, results from its statement of the relation between jurisdiction and the “stream of commerce.” The stream of com- merce, like other metaphors, has its deficiencies as well as its utility. It refers to the movement of goods from manu- facturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact.
I took Civ Pro before I took con law. That made the phrase “stream of commerce” have even less meaning.
The focus now seems to be on the “defendant’s activities manifest an intention to submit to the power of a sovereign.”
This Court has stated that a defendant’s placing goods into the stream of commerce “with the expectation that they will be purchased by consumers within the forum State” may indicate purposeful availment. World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 298 (1980) (finding that expectation lacking). But that statement does not amend the general rule of personal jurisdiction. It merely observes that a defendant may in an appropriate case be subject to jurisdiction without entering the forum—itself an unexceptional proposition—as where man- ufacturers or distributors “seek to serve” a given State’s market. Id., at 295. The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. In other words, the defendant must “purposefully avai[l] it- self of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson, supra, at 253; Insurance Corp., supra, at 704–705 (“[A]ctions of the defendant may amount to a legal submission to the jurisdiction of the court”). Some- times a defendant does so by sending its goods rather than its agents. The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.
And even though he has been gone for a while, the Court takes (what I think is) some relish in smacking down Justice Brennan.
In Asahi, an opinion by Justice Brennan for four Jus- tices outlined a different approach. It discarded the cen- tral concept of sovereign authority in favor of considera- tions of fairness and foreseeability. . . . The standard set forth in Justice Brennan’s concurrence was rejected in an opinion written by Justice O’Connor; but the relevant part of that opinion, too, commanded the assent of only four Justices, not a majority of the Court. . . .
Since Asahi was decided, the courts have sought to rec- oncile the competing opinions. But Justice Brennan’s con- currence, advocating a rule based on general notions of fairness and foreseeability, is inconsistent with the prem- ises of lawful judicial power. This Court’s precedents make clear that it is the defendant’s actions, not his expec- tations, that empower a State’s courts to subject him to judgment.
It must be remembered, however, that although this case and Asahi both involve foreign manufacturers, the undesirable consequences of Justice Brennan’s approach are no less significant for domestic producers.
I think even Justice O’Connor would speak favorably about this change in precedent (because it cites her opinion!).