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 of federal 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 conventions of general and international law. Pennoyer’s reasoning can be right without International Shoe’s outcome being wrong; international law and American practice might just be different now than they were in 1878 or 1945. But if not, at least we’ll be looking in the right place. General law may not be much, but it’s something: the conventional settlement of the problems of political authority at the root of any theory of personal jurisdiction. Recovering those conventions is not only useful for its own sake, but a step toward appreciating our deep dependence on shared traditions of general law.
Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives. Torture’s foes typically dismiss this claim as false to the point of fraud – fortuitous coincidence with torture’s unlawfulness. Neither view, I argue herein, rests firmly on evidence. Rival anecdotes, not data, have, so far, driven this debate. And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don’t involve torture isn’t possible, and (2) studies of this sort would be transparently unethical. This hasn’t stopped the CIA from pursuing a research-based answer. Recently-released documents, reviewed here for the first time, reveal that the Agency looked to science for a resolution and raise the explosive possibility that the CIA conducted a clandestine program of human-subjects research on the risks and efficacy of torture. What can be said, based on the available science, is that there’s no evidence that torture is more effective than lawful interrogation, and some reason to suspect that interviewing strategies grounded in state-of-the-art understandings of persuasion and cognition work best of all. What can also be said is that: (1) America’s post-9/11 torture program wrecked lives, and (2) torture has wide appeal, as symbolic riposte to the powerlessness many feel in the face of vertiginous economic and cultural change.
Manderly considers Carol and Jordan Steiker’s new book, Courting Death: The Supreme Court and Capital Punishment, which he calls “an extraordinary scholarly achievement” that “immediately takes its place as the seminal text” on capital punishment. He describes Courting Death “most damningly [as] a condemnation of the way the Supreme Court—and lawyers in general—talk about complicated ethical issues, a vivid illustration of how disempowering and problematic it is for judges to drape themselves ‘in the longiloquent language of a generalized logic.’”
The Texas Law Review is proud and excited to announce the Editorial Board for Volume 96. The members of Volume 95 are happy to pass the torch to such a fantastic group of people. View the Volume 96 Editorial board Masthead.
The Texas Law Review, the Robert S. Strauss Center for International Security and Law at the University of Texas at Austin, and the Lieber Institute for Law & Land Warfare at the United States Military Academy are hosting a symposium on the soon-to-be-released Tallinn Manual 2.0. Visit www.tallinnmanualsymposium.com for more information and registration.
The Texas Law Review is proud to announce its volume 95 membership! Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.
The Texas Law Review is proud to announce its volume 94 membership! Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.