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


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.


Conflict of Laws | Jurisdiction | Jurisprudence | Litigation

Date of this Version

March 2006