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Imagine that something is legal in 49 states but illegal in Virginia. For example, imagine if Virginia was the only state to recognize publicity rights.

Which of the following situations would be legally dangerous:

  1. I write a book that violates someone's publicity rights and sell it in all 50 states, but I live in Texas.
  2. I live in Texas and sell my book in every state but Virginia.
  3. I live in Virginia but sell my book in every state but Virginia.

Edit: This might be a little more complex than I thought. I forgot to consider the person whose publicity rights I violated. Suppose his name is Mr. X and he lives in Virginia. Or he doesn't live in Virginia. I suppose that would be part of the equation, too.

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  • The real question here is not jurisdiction (where you can be sued) but choice of law (in what circumstances does Virginia law apply to the claim). The analysis is quite different.
    – ohwilleke
    Commented Aug 29, 2023 at 19:12

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General in personam jurisdiction

When an entity is essentially "at home" in a state (e.g. the state is the principal place of business, state of incorporation, or a person's residence), that state's court may exercise general in personam jurisdiction over that entity.

As said in BNSF Railroad Co. v. Tyrell, 581 U.S. ___ (2017), a state court has general in personam jurisdiction over an entity:

when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.

Personal jurisdiction

A state court may also have jurisdiction where a claim arises out of activities undertaken by an entity in that state. The entity must have (International Shoe Co. v. Washington, 326 U.S. 310 (1945)):

certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

The Supreme Court has recognized that such "minimum contacts" can exist when (Calder v. Jones, 465 U.S. 783 (1984)):

  • the plaintiff is the focus of the activities of the defendant out of which the suit arises;
  • where a libellous story concerns the affairs of a state resident;
  • where the libellous story impugned a person's career that is centered in the state;
  • where the "brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California";
  • where "their intentional, and allegedly tortious, actions were expressly aimed at [the state]."

Statutory authority

The above are limits that flow from the due process clause of the Fourteenth Amendment. The court must also have been actually granted such jurisdiction by statute. See e.g. the Commonwealth of Virginia's "Long Arm" Statute. It appears to grant jurisdiction to the extent permissible by International Shoe and BNSF, but not as far as allowed by Calder (this is my own reading, and I have not confirmed this limit by research).

California's is much more clearly expressed to match exactly the constitutional limits: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."

Application

In your scenarios, where the seller is "at home" in Virginia or where the seller sells into Virginia, Virginia courts would have jurisdiction over the law suit.

In addition, if Calder's test is met (this depends on evidence of intention and effect), it would be constitutionally permissible for a state court in Virginia to have jurisdiction, even without selling into Virginia, but it does not appear that Virginia's long-arm statute reaches this far.

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    While the question purports to ask about jurisdiction, the real question is a choice of law question - under what circumstances does Virginia law apply to the dispute which would otherwise not give rise to any cause of action.
    – ohwilleke
    Commented Aug 29, 2023 at 19:13
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    The jurisdiction issue isn't entirely irrelevant, because if the forum has jurisdiction then its choice of law rules will determine which state's law applies to which issues in the case, subject to constitutional limitations on choice of law rules. Incidentally, this is true even in federal court in the U.S. in diversity cases. Forum state law is presumed if no one argues that another state's law applies and differs from forum state law, but usually some party will argue that another state's law applies.
    – ohwilleke
    Commented Aug 29, 2023 at 19:22

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