Texas Law Review, Volume 95, Number 6, May 2017 Page: 1,249
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Pennoyer Was Right
Stephen E. Sachs*
Pennoyer v. Neff has a bad rap. As an original matter. Pennoyer is legally
correct. Compared to current doctrine, it offers a more coherent and attractive
way to think about personal jurisdiction and interstate relations generally.
To wit: The Constitution imposes no direct limits on personal jurisdiction.
Jurisdiction isn 't a matter offederal law, but of general law-that unwritten law,
including much of the English common law and the customary law of nations,
that formed the basis of the American legal system. Founding-era states were
free to override that law and to exercise more expansive jurisdiction. But if they
did, their judgments wouldn 't be recognized elsewhere, in other states or in
federal courts-any more than if they'd tried to redraw their borders.
As Pennoyer saw, the Fourteenth Amendment changed things by enabling
direct federal review of state judgments, rather than making parties wait to
challenge them at the recognition stage. It created a federal question of what
had been a general one. whether a judgment was issued with jurisdiction, full
stop, such that the deprivation of property or liberty it ordered would be done
with due process of law.
Reviving Pennoyer would make modern doctrine make more sense. As
general-law principles, not constitutional decrees, jurisdictional doctrines could
be adjusted by international treaty-or overridden through Congress's
enumerated powers. The Due Process Clause gives these rules teeth without
determining their content, leaving space for federal rules to govern our federal
system.
In the meantime, courts facing jurisdictional questions should avoid pitched
battles between 'sovereignty and 'liberty, - looking instead to current
* Professor of Law, Duke University School of Law. I am grateful for advice and comments
from William Baude, Samuel Bray, Patrick Borchers, Vincent Buccola, William Dodge, Allan
Erbsen, Richard Fallon, Maggie Gardner, Jack Goldsmith, Christopher Green, James
Grimmelmann, Tara Grove, Alexandra Lahav, Ralf Michaels, Wendy Perdue, Michael Ramsey,
Richard Re, Alexander Reinert, Alan Sachs, David Schleicher, Amanda Schwoerke, Adam
Steinman, James Stern, Seth Barrett Tillman, Ralph Whitten, Ryan Williams, and participants in
the Civil Procedure Workshop, the Harvard Law School faculty workshop, and a presentation to the
Yale Law School Federalist Society. I am also grateful for.the excellent research assistance of
Kayla Ferguson, Madeleine Joseph, Andrew Lowdon, and Gareth Rhodes. Support is provided in
part by a gift to Duke University School of Law from the Eugene T. Bost, Jr. Research Professorship
of The Cannon Charitable Trust No. 3.
2017 Stephen E. Sachs. From and after September 1, 2018, this Article may be reproduced,
excerpted, or redistributed in any format, for educational purposes and at or below cost, so long as
any excerpt includes the author and full title, the original volume, page numbers, and year of
publication, the credit "Published originally in the Texas Law Review," and this copyright provision.
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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/m1/73/?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.