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The Action Bias in American Law: Internet Jurisdiction and the Triumph of Zippo Dot Com

bepress Legal Repository
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  • Conflict Of Laws
  • Jurisdiction
  • Jurisprudence
  • Practice And Procedure
  • Conflicts Of Law
  • Litigation
  • Law


American law reflects the stories we tell ourselves about who we are as a nation. To illustrate the effect of America’s stories on the law, I identify and describe in this essay a particular characteristic of American law: an “action bias” – a propensity to bestow disproportionately greater legal significance upon affirmative acts than on failures to act – and I argue that this bias reflects, in turn, a powerful myth at the core of the self-image of the United States, a myth I call the “Immigrant’s Tale.” To illustrate this thesis, I give a number of instances of the action bias, but focus primarily on the career of an important, albeit somewhat obscure federal district court decision: Zippo Manufacturing Company v. Zippo Dot Com, the case that formulated the framework now used almost universally in the determination of personal jurisdiction in Internet cases.

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