Texas Law Review, Volume 95, Number 6, May 2017 Page: 1,326
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Texas Law Review
Conclusion
That Pennoyer got it right is more than a historical debating point. The
American law of personal jurisdiction is an intellectual shambles. If there's
a half-coherent alternative, defensible on original grounds, that should be
seen as good news. If this alternative is moderately helpful in achieving other
goals, like modernizing jurisdictional doctrine by statute, so much the better.
That alternative, it turns out, is the much-mocked notion of general law,
together with the long-despised decision in Pennoyer. Other scholars have
discussed jurisdiction with general law before, but they've generally thought
that it proved Pennoyer wrong.516 In fact, recovering the model of general
law is crucial to understanding why Pennoyer got things right.
More importantly, recovering this model points the way to other areas
of the law we might better understand, once we let the scales of Erie and
Klaxon fall from our eyes. To some scholars, because jurisdiction is 'part of
the law of conflicts, Erie and Klaxon undermined the case for continued
federal court supervision' of the subject.517 The same argument would ring
hollow as applied to state borders, where federal supervision seems vital to
the constitutional plan. One person's modusponens being another's reductio,
we might with equal justice say that the case for federal supervision of state
personal jurisdiction has undermined the case for Erie and Klaxon.
Erie's reasoning depends crucially on the impossibility-the
'fallacy"-of general law.518 Yet general law is not only possible, but
indispensable. State-court jurisdiction is just one topic, and far from the only
one, as to which our Constitution was designed in light of general law. Many
areas that are crucial to a federal system go unaddressed in our constitutional
text: choice of law, jurisdiction to tax, extraterritoriality, interstate and
international relations, and so on. That may or may not have been a deliberate
choice, but it also wasn't really an oversight. These areas weren't left to
'majestic generalities"519 or to arbitrary gaps, but to an already-functioning
516. See, e.g., Borchers, supra note 1, at 20, 22-24 (arguing that the Court should 'abandon the
notion that state court personal jurisdiction is a matter of constitutional law" and attributing the
"constitutionalization of American personal jurisdiction' to Pennoyer and its progeny). See
generally Conison, supra note 3, at 1135-39 (characterizing Pennoyer as unjustifiedly breaking
with a prior tradition).
517. Conison, supra note 3, at 1183.
518. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938); see Michael Steven Green, Erie's
Suppressed Premise, 95 MINN. L. REV. 1111, 1119 (2011); Sachs, supra note 74 (manuscript at 47)
(arguing that the "whole logic' of Erie 'unravels' once one recognizes that a state court could
decide cases by finding general law instead of making state law).
519. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (Jackson, J.).1326
[Vol. 95:1249
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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/m1/150/?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.