Texas Law Review, Volume 95, Number 6, May 2017 Page: 1,308
This periodical is part of the collection entitled: Texas State Publications and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
- Highlighting
- Highlighting On/Off
- Color:
- Adjust Image
- Rotate Left
- Rotate Right
- Brightness, Contrast, etc. (Experimental)
- Cropping Tool
- Download Sizes
- Preview all sizes/dimensions or...
- Download Thumbnail
- Download Small
- Download Medium
- Download Large
- High Resolution Files
- IIIF Image JSON
- IIIF Image URL
- Accessibility
- View Extracted Text
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
Texas Law Review
and conclusive authority: so that their decision must be taken to be the law
of the land. '402 Maybe it'd be otherwise, a later court reasoned, if the Court
were 'restrained by the smallness of the sum in controversy', but if "the case
itself may be carried to that court by writ of error, then the 'law, thus
settled, is binding upon this Court. '403
This reasoning is highly practical: there's no point in a court issuing a
ruling that it knows will be reversed. It also helps make sense of the lines of
judicial authority. In the days of Swift v. Tyson, it wasn't always obvious
which courts would defer to which others on which issues; appellate review
provided one easy test. Just as district courts today will 'follow the holdings
of the Federal Circuit in cases falling within [that Circuit's] appellate
jurisdiction, '444 and will follow the holdings of their own geographic circuit
courts otherwise, state courts would apply the Supreme Court's views in any
case subject to that Court's review. This understanding followed from a
simple 'postulate, namely 'that one rule must prevail in the court of original
jurisdiction and in the court of last resort"405-a postulate that works just as
well regardless of what kind of law is involved.
This is exactly how some contemporaries regarded Pennoyer. Consider
the evidence of Volume 59 of the Tennessee reports, printed in 1878. After
reporting the five-year-old case of Barrett v. Oppenheimer.406 which refused
to enforce a sister-state judgment founded on improper service,407 the reporter
included a long footnote summarizing what was then the Supreme Court's
very recent decision in Pennoyer.408 It described Pennoyer as holding that
judgments in violation of the traditional rules 'were void, upon general
principles, and also under the Fourteenth Amendment's Due Process
Clause.409 In particular, it addressed the question of how state courts should
respond. Noting that Pennoyer let other states provide their own statutory
methods of service on their own citizens, it invoked a line of case law about
the methods of ascertaining those other states' laws, arguing that state courts
should choose such methods 'by the same rule which is to determine the
appellate court on a writ of error'-namely that of the Supreme Court,
402. Commonwealth v. Green, 17 Mass. (16 Tyng) 515, 546 (1822).
403. Braynard v. Marshall, 25 Mass. (8 Pick.) 194, 196-97 (1829). On the dispute over whether
the amount-in-controversy requirement added to section 22 of the Judiciary Act carried over to
section 25, see Buel v. Van Ness, 21 U.S. (8 Wheat.) 312, 322-23 (1823), and Kevin C. Walsh, In
the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions, 90 NOTRE
DAME L. REV. 1867, 1888-91 (2015).
404. Rates Tech. Inc. v. Speakeasy, Inc. 685 F.3d 163, 174 n.9 (2d Cir. 2012).
405. Hanley v. Donoghue, 116 U.S. 1, 6 (1885).
406. 59 Tenn. (12 Heisk.) 298 (1873).
407. Id. at 304.
408. Id. at 304 n.*.
409. Id. at 304-05 n.*.1308
[Vol. 95:1249
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Matching Search Results
View 11 pages within this issue that match your search.Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Periodical.
Texas Law Review Association. Texas Law Review, Volume 95, Number 6, May 2017, periodical, June 2017; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth903368/m1/132/?q=green+energy: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.