Meaning of McIntyre v.

NiCastro
I think it is clear that Justice Breyers opinion should be controlling for International Shoe
analysis as it would provide the determinative swing votes on either side. I cannot imagine cases in
which Breyer would vote for jurisdiction and the dissenters would not. Conversely, I cannot imagine
cases in which Breyer would vote against jurisdiction and the plurality would not. Thus, it is important
to look closely at Breyers opinion. I think that Yeazell deleted a key paragraph:
Here, the relevant facts found by the New Jersey Supreme Court show no regular flow or
regular course of sales in New Jersey; and there is no something more, such as special state
related design, advertising, advice, marketing, or anything else. Mr. NiCastro, who here bears
the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to
sell in New Jersey. He has introduced no list of potential New Jersey customers who might, for
example, have regularly attended trade shows. And he has not otherwise shown that the British
Manufacturer purposefully avail[ed] itself of the privilege of conducting activities within New
Jersey, or that it delivered its goods in the stream of commerce with the expectation that they
will be purchased by New Jersey users.
Having read Justice Ginsbergs full dissent, I disagree with Justice Breyers characterization of the facts of
this case, but I think this paragraph should guide the lower courts. Unlike the plurality opinion, Breyers
opinion does not completely reject consideration of the reasonable anticipation or foreseeability
factor; it just limits consideration of this factor as stated in the above paragraph. Also, unlike the
plurality opinion, Breyers opinion does not completely reject application of stream of commerce
analysis; it just limits it to where there is a regular flow or regular course of commerce or
something more. Justice Breyer does not consider the other factors mentioned in Justice Brennans
opinions (and in Justice Whites Worldwide VW opinion), but unlike the plurality, at least he does not
dismiss fairness along with foreseeability as potentially relevant factors in close cases.
Still, my guess is that Breyers hold on Alitos vote is tenuous, which is important because Alito
would provide the plurality with a fifth vote. I therefore think that there has to be a regular flow or
course of commerce or at least something more to show the necessary purposeful availment. I doubt
this current Supreme Court would find relevant those other factors we listed from the prior opinions
(forums interest; defendants inconvenience; plaintiffs special needs; efficiency; substantive social
policy). Surely, none of those factors are relevant to the underlying question asked by the plurality: Did
the defendant in some way submit to jurisdiction.