Pennoyer Was Right

IntroductionThis Article addresses the central mystery1 of Pennoyer v. Neff: what does due process have to do with jurisdiction?3Pennoyer is mysterious in more than one way. How do Fourteenth Amendment protections against the power of any state allocate power among particular states? Why would a guarantee of interest[s]4 act an instrument of interstate federalism?5 Is it even worth having a liberty to be sued in California but not in oregon?As it happens, these questions were answered in Pennoyer, more or less correctly. And those answers may help us solve other legal puzzles-of procedure, of interstate relations, and of the nature of our federal system.Today, Pennoyer has a bad rap. Every fall, it frustrates a new generation of law students, who revile it almost as much as their professors do. At best, it's seen as a relic, long ago cast aside by International Shoe v. Washington 6 At worst, it's dismissed as a nineteenth-century dogma or a Lochnef-era power grab. To its critics, Pennoyer is unsupported,8 unsound,9 or dead wrong;10 an err[or]u and a misinterpretation;12 anachronistic, spurious, shallowly reasoned and conceptually confused;13 a decision that arouses dismay and even despair.14That derision is a mistake. As an original matter, Pennoyer is legally correct. While its language may seem archaic, its reasoning shouldn't. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and about interstate relations generally.To understand why, though, we first have to abandon what many see as the main holding of Pennoyer: that the Fourteenth Amendment's Due Process Clause-nor shall any State deprive any person of life, liberty, or property, without due process of law15-imposes rules for personal jurisdiction. In fact, the Constitution imposes no direct limits on personal jurisdiction at all. Personal jurisdiction isn't a matter of constitutional law, or even of federal law. Instead, it's a matter 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 and that continues to govern unusual corners of the system today.16As general law, jurisdiction is something on which different court systems can disagree, in much the same way that dictionary editors might disagree on questions of conventional usage. The Constitution takes no position on these disagreements; it takes the generally accepted practices as it finds them. It regulates personal jurisdiction not through rules but through institutions-declining to provide specific answers in favor of creating a neutral forum in which to ask the questions. Because that forum is federal, not state, it can disregard local views that appear to conflict with the general rule. And because the rule is general, not constitutional, Congress might potentially displace it by statute-providing federal rules to govern a federal system.The Founding-era picture was as follows. In the time of the special appearance, personal jurisdiction mattered mostly for recognition. Instead of sending an attorney to a distant court, the best way to dispute jurisdiction was often to take a default and live to fight enforcement another day. A sovereign might claim exorbitant jurisdiction in its own courts, executing judgments on whatever property it could find. But when the winner tried to enforce the judgment elsewhere, the foreign judgment would be held to international standards-which were part of the law of nations, which was part of the general law.For this purpose, other American states were just as foreign as distant countries. The Full Faith and Credit Clause,17 together with its implementing statute (the 1790 Act),18 didn't alter the law of jurisdiction, which each state court could still enforce. Even the federal courts held states at a certain arm's length, giving no more weight to laws asserting jurisdiction beyond state borders than to laws purporting to redraw those borders themselves. …