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The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine

The Supreme Court’s attempt in Pennoyer v. Neff to graft federal common law jurisdictional rules onto the Due Process Clause has proven problematic. Although the jurisdictional rules have changed significantly since that decision, contemporary federal limitations on state court jurisdiction continue to reflect their common law origins. Oblivious to the origins of such jurisdictional rules, the Supreme Court has struggled in recent years to explain them in due process terms, unable to construct a due process model that can adequately explain the elements of interstate federalism in current jurisdictional doctrine. Nor will the Court ever be able to fully explain in due process terms rules formulated primarily to vindicate structural values rather than individual rights.

Several commentators have suggested that the Court resolve this dissonance by taking seriously due process as the sole source of authority for the jurisdictional rules and jettisoning all elements that do not fit within the due process model. Such a solution would, however, unnecessarily deny the Court the flexibility to formulate optimal jurisdictional rules. This Article argues that the better course would be to recognize constitutional structure as the primary source of authority for federal common law restrictions on state court jurisdiction, with due process imposing only “modest” restrictions akin to the constitutional restrictions on state choice of law authority. Either of these alternatives is far superior to current doctrine, which erroneously assigns interstate federalism content to a due process source of authority. This mismatch is primarily responsible for the incoherence that plagues personal jurisdiction doctrine. More significantly, because the core restrictions on state court jurisdiction are mistakenly thought to be mandated by a constitutional provision protecting individual liberty interests, current doctrine illegitimately prevents Congress from remedying serious deficiencies in our interstate system of justice, such as the difficulty in obtaining and enforcing child-support judgments.

A New Model of Administrative Enforcement

This Essay proposes a new method of monitoring regulatory compliance by a firm that operates multiple sources of risk, such as air polluting smokestacks. The expense of individually monitoring such sources may consume a large share of the agency’s enforcement budget, undermining deterrence objectives. Under our approach, regulators would instead randomly select one of the firm’s sources of risk, determine the firm’s liability at that source, and apply that outcome perforce as determinative of liability at all of the sources. This method, which we call single-outcome sampling (“SOS”), replicates or improves deterrence generated by the current source-by-source enforcement model, but at a fraction of the cost. To demonstrate these benefits, we apply SOS to the EPA’s monitoring of compliance with Clean Air Act regulations. We also address potential risk-bearing and judgment-proof costs associated with our proposal and explain how both problems can be solved.

The Questionable Use of Custom in Intellectual Property

The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (“IP”). Nevertheless, customary practices have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a critique of the current system of unreflected and often wholesale incorporation of custom in IP law. The article then provides a theoretical framework exploring the limited ways customary practices should be considered in IP law. The analysis provides additional support to those who have criticized the incorporation of custom in tort, contract, and property law, while at the same time providing guidelines that could revolutionize the treatment of custom in IP.

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