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Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern.

This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties’ religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the “objective” approach, “the reasonable believer” test, and the “case-by-case” method. Fundamental Free Exercise and Establishment Clause problems with the “objective” and “reasonable believer” approaches demonstrate the superiority of a “case-by-case” analysis. That any accommodation is required, however, should give pause.

It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court’s aggressive exemption free exercise jurisprudence.

Introduction

Marbury v. Madison teaches us that the judicial branch has the power to review the constitutionality of governmental acts.1 1.5 U.S. (1 Cranch) 137, 177–78 (1803).Show More This power of review comes up most frequently when congressional or state legislative acts run afoul of the Constitution. But what happens when someone claims that the common law, a product of judges and purportedly applied uniformly to all citizens, burdens a constitutional right? Can people demand exemptions from a tort standard solely because of a claim of individualized burden? Consider the following scenarios:

In May 1991,2 2.Verdict Form, Williams v. Bright, 632 N.Y.S.2d 760 (N.Y. Sup. Ct. 1995) (No. 17261/92), 1994 WL 16200195.Show More Gwendolyn Robbins was traveling through upstate New York with her father when he swerved their vehicle off the road and into a culvert at sixty-five miles per hour. Mrs. Robbins, severely injured in the crash, was rushed to a local hospital for surgery. Once there, however, she learned that proper treatment would require blood transfusions. She refused on grounds that it would violate her religious beliefs as a Jehovah’s Witness. In the face of increased medical expenses and a reduced quality of life, Mrs. Robbins remained steadfast in refusing surgery. She later pressed for damages and the cost of continuing care in a negligence suit against the owner of the car.3 3.Facts consolidated from trial and appellate court decisions. Williams v. Bright, 632 N.Y.S.2d 760, 762–63 (N.Y. Sup. Ct. 1995), rev’d in part, 658 N.Y.S.2d 910, 911 (N.Y. App. Div. 1997).Show More

In August 1963, sixteen-year-old Ruth Eider was in a chairlift traveling down a mountain when the operator negligently stopped the lift. It was late afternoon and she and her nineteen-year-old male companion were stuck. After fifteen minutes of yelling, it became clear that no one was coming to help. Raised in an ultra-orthodox Jewish household, Ms. Eider had been taught that spending the night with a man in a place inaccessible to a third party was an overwhelming moral sin. Facing this prospect, Ms. Eider jumped from the lift. She eventually sued the State of New York (the operator of the mountain) for the cost of the injuries sustained in the jump.4 4.Friedman v. State, 282 N.Y.S.2d 858, 859–63 (N.Y. Ct. Cl. 1967), modified, 297 N.Y.S.2d 850 (N.Y. App. Div. 1969).Show More

In March 2006, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Shortly thereafter, his father scheduled a funeral to commemorate his life for close friends and family. Members of the Westboro Baptist Church, a fundamentalist Christian sect, used this funeral as an opportunity to highlight their condemnation of homosexuality. They protested outside the ceremony carrying signs with slogans like “Thank God for dead soldiers,” “God hates you,” and “Semper fi fags” to spread their message. Mr. Snyder’s father sued the Church for intentional infliction of emotional distress (“IIED”). In response, the Westboro Baptist Church claimed complete immunity from tort liability on both free speech and free exercise of religion grounds.5 5.Snyder v. Phelps, 533 F. Supp. 2d 567, 569–70 (D. Md. 2008), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). The district court dismissed the free exercise claim, distinguishing statutory and criminal restrictions on religious practice from other types of restrictions. Id. at 579. This Note suggests that the case law and logic of free exercise jurisprudence do not support such a distinction.Show More

Although these three incidents, separated by over four decades, would seem to have little in common, the tort suits they spawned had to grapple with a question that has beguiled courts for years: In determining culpability, to what extent can tort law be modified to accommodate the strongly held religious beliefs of a party?6 6.The first court to address this question was the Supreme Court of Errors of Connecticut in Lange v. Hoyt,159 A. 575, 577–78 (Conn. 1932). Understanding the difficulty of the issues raised, “[n]ot surprisingly, the Connecticut trial court ducked the issue and the Connecticut Supreme Court (of Errors as it then was) affirmed the ducking” by allowing the jury to consider that the plaintiff’s religious beliefs were widely held in determining reasonableness. Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 47 (1985). Modern courts have similarly struggled with this question. SeeMunn v. S. Health Plan, Inc., 719 F. Supp. 525, 526 (N.D. Miss. 1989) (“This wrongful death case [involving a decedent who refused a blood transfusion on religious grounds] presents some of the most difficult questions which this court has ever been asked to resolve.”); Rozewicz v. N.Y. City Health & Hosps. Corp., 656 N.Y.S.2d 593, 594 (N.Y. Sup. Ct. 1997) (“[T]he issues before me dealing with the deceased’s refusal to accept blood transfusions raise[] some of the most difficult legal issues I have been faced with during my years on the bench.”).Show More That is, when, if ever, can religion be a valid justification for ignoring the purportedly generally applicable standards of the common law?

At first glance, the answer to that question would seem to be never. The basic command of tort law is to “be reasonable.”7 7.“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283 (Am. L. Inst. 1965).Show More Reasonableness permeates the legal system in one form or another, a lodestar which guides court decision-making,8 8.See Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2135–46 (2015) (detailing the many permutations of reasonableness).Show More and is determined “objectively.”9 9.See Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (C.P.) (discussing the importance of an objective standard of reasonableness and rejecting inquiry into subjective motivation).Show More This would appear to foreclose any consideration of parties’ subjective religious motivation. Over the years, however, a number of courts and commentators have realized that the answer is not that simple, particularly when “objective” reasonableness conflicts with the Religion Clauses of the First Amendment.10 10.Seesupra note 6; see, e.g., Jeremy Pomeroy, Note, Reason, Religion, and Avoidable Consequences: When Faith and the Duty To Mitigate Collide, 67 N.Y.U. L. Rev. 1111 (1992); Note, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978) [hereinafter Medical Care].Show More In response, these courts and commentators have wrestled with a framework for accommodating religious belief in reasonableness calculations. Most of these approaches, however, arose well before the Supreme Court’s modern free exercise jurisprudence came into focus in Employment Division v. Smith.11 11.Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990).Show More Consequently, they do not deal with current developments in First Amendment law. Furthermore, they fail to grapple with the serious Establishment Clause concerns raised by exempting individuals from complying with a reasonableness standard.12 12.See Anne C. Loomis, Thou Shalt Take Thy Victim as Thou Findest Him: Religious Conviction as a Pre-Existing State Not Subject to the Avoidable Consequences Doctrine, 14 Geo. Mason L. Rev. 473, 505–09 (2007) (purporting to address Establishment Clause concerns but failing to consider the full gamut outlined infra in Part II).Show More In our common law system, which is built upon a similar edifice of individualized reasonableness determinations, these considerations could reverberate broadly. This Note will attempt to address these issues.

Part I will argue that the Supreme Court’s First Amendment jurisprudence after Smith not only allows, but requires, religious accommodation where application of the reasonable person standard burdens sincerely held religious belief. In reaching this conclusion, this Part will first show that the reasonable person standard lacks the neutrality and general applicability required under Smith and its Free Exercise Clause companion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.13 13.508 U.S. 520 (1993).Show More This Part will then demonstrate that a lack of neutrality and general applicability can and will undermine any compelling interest the state could put forth in application. Thus, a religious adjustment is necessary.

Part II will discuss the three approaches that courts have taken to adjust the reasonable person standard for sincerely held religious belief. It will first address the “objective” test, which purports to reject consideration of subjective thought and prohibits courts from including religious belief in reasonableness determinations. The requirement of some accommodation under Smith and Lukumi makes this approach unworkable. This Part will then address the “reasonable believer” test, in which courts treat religion as an immutable characteristic of the party, similar to the “eggshell skull” rule in torts. It will reject this test on both Free Exercise and Establishment Clause grounds. Finally, this Part will discuss the “case-by-case” approach in which religion is one of many equally weighted factors used to determine the reasonableness of an action. It will contend that this approach alleviates some of the Free Exercise and Establishment Clause problems of the “reasonable believer” standard and is the best option given the demands of the Supreme Court’s First Amendment jurisprudence.

In the admittedly small arena of “failure to mitigate damages” cases, this outcome may seem palatable and even appropriate. But the implications of finding a required adjustment are far-reaching. If something as generic as a reasonableness standard is susceptible to required religious accommodation, what other purportedly generally applicable laws or standards are similarly vulnerable? Take, for example, Snyder v. Phelps, the Westboro Baptist Church case discussed above.14 14.See supra text accompanying note 5.Show More Although the Supreme Court decided the issue in the Church’s favor on free speech grounds,15 15.Snyder v. Phelps, 562 U.S. 443, 461 (2011).Show More suppose, instead, that it had tackled the free exercise question.

Should the tort of IIED be subject to required religious accommodation because it has exemptions for speech protected under the First Amendment’s Free Speech Clause? An aggressive exemption strategy to religious accommodation under Smith and Lukumi may suggest that the answer is yes. That outcome seems unsettling. It also begs for clarity on what laws or standards, if any, are so fundamental as to avoid required religious accommodation. This Note uses the finding of a required religious accommodation to the reasonable person standard to suggest the fundamental inadequacy of the Court’s aggressive exemption jurisprudence under the Free Exercise Clause.

The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act

From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society.

To provide redress for the victims of Nazi looting, the United States and the international community adopted the Washington Principles in 1998—a set of guidelines intended to promote a “just and fair” solution for claims over Nazi-looted art. Unfortunately, despite this commitment, lawsuits to recover stolen artwork are often barred by time-based defenses.

In 2016, Congress passed the Holocaust Expropriated Art Recovery Act (“HEAR Act”) to promote resolution on the merits by effectively removing the statute of limitations as an affirmative defense. Surprisingly, however, Congress left the doctrine of laches available, thereby frustrating the effectiveness and stated purpose of the HEAR Act. The doctrine of laches bars a claim upon a showing that the claimant unreasonably delayed in bringing suit, and that the delay caused the artwork’s possessor to suffer prejudice. Yet because lawsuits for restitution of Nazi-looted artwork have only recently become viable, delay and the resulting prejudice—taking the form of lost evidence—are inherent in these claims. The doctrine of laches thereby undermines resolution on the merits, which is antithetical to the HEAR Act’s putative goals.

This Note argues that for the HEAR Act to provide the relief it ostensibly envisions, the doctrine of laches should be precluded as an available defense. Alternatively, the ability to assert the defense should be restricted to those parties who acquired contested artwork in true good faith. By revising the HEAR Act accordingly, a “just and fair” solution can be achieved.

Introduction

The destruction of Jewish cultural and economic identity was an integral component of the Nazi regime’s genocidal campaign.1 1.Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016).Show More The Nazis partly carried out this aim through the systematic looting of artwork, stripping the Jewish population of their possessions and casting them as outsiders.2 2.See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I.Show More The scale of the theft highlights its importance to the Nazis—in 1948, the United States estimated that it had found approximately 10.7 million looted art and cultural objects.3 3.Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report].Show More The United States and European governments set up restitution programs,4 4.Id. at SR–137 to SR–139.Show More though these efforts soon gave way to a focus on the Cold War.5 5.See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017).Show More After the Soviet Union fell, however, interest re-emerged in the Holocaust, as Allied governments declassified archives and scholars devoted attention to the unresolved problem of Nazi-looted art.6 6.See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”).Show More In 1998, at the Washington Conference on Holocaust-Era Assets, the representatives of forty-four countries, including the United States, agreed to a set of guidelines known as the Washington Principles.7 7.See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003).Show More This document set forth the parameters for countries to work within their own legal systems to promote the “just and fair” resolution of claims for Nazi-looted art.8 8.Washington Principles, supra note 7, at 972 (Principles VIII & IX).Show More Since the adoption of the Washington Principles, United States courts have heard a growing number of cases seeking the restitution of artwork stolen by the Nazis.9 9.See infra Part II.Show More

Despite the United States’ commitment to the Washington Principles, time-based defenses like the statute of limitations and its equitable counterpart, the doctrine of laches, have been used to bar many of these claims.10 10.See id.Show More A laches defense is intended to prevent a claimant from delaying in asserting her rights in a way that—in the context of this Note—harms the party in possession of disputed artwork.11 11.The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)).Show More Recognizing the obstacles posed by time-based defenses, Congress acted in 2016 to reduce the difficulties descendants face in obtaining restitution.12 12.See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526.Show More The resulting legislation, the Holocaust Expropriated Art Recovery Act (“HEAR Act”), set a federal statute of limitations for actions seeking the recovery of Nazi-looted art.13 13.Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002).Show More This six-year limitations period starts running when a claimant gains knowledge of the “identity and location of the artwork” and “a possessory interest” in the artwork.14 14.Holocaust Expropriated Art Recovery Act § 5(a).Show More However, the HEAR Act’s final text did not address laches.15 15.See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision.Show More Legislative history suggests that Congress intended for the defense to remain available. The initial draft explicitly precluded the doctrine of laches,16 16.S. 2763, 114th Cong. § 5(a) (2016).Show More but the enacted bill removed this language.17 17.Holocaust Expropriated Art Recovery Act § 5(a).Show More Congress knew that the change would restrict the HEAR Act’s impact and allow laches to frustrate the efforts of the very families the Act purported to help.18 18.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.).Show More

This Note focuses on Congress’s decision to leave laches intact—along with its consequences for claimants—and two possible revisions to the HEAR Act. By making the statute of limitations a non-issue in many disputes, Congress sought to ensure that these cases would be decided on the merits, thereby increasing the availability of restitution. Leaving laches intact, however, undermines that goal. A successful laches defense requires the party in possession19 19.The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012).Show More of the artwork to show: (1) that the claimant unreasonably delayed in bringing suit against the possessor, and (2) that the delay caused prejudice to the possessor.20 20.Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)).Show More This defense is frequently easy for possessors of Nazi-looted art to demonstrate. These claims are inevitably delayed because the world largely treated art restitution as “a closed chapter” for half a century after World War II.21 21.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.).Show More Moreover, possessors can show prejudice based on lost evidence, as potential witnesses have passed away in the intervening decades. Even though such circumstances are inherent to these claims, courts have held that the doctrine of laches should prevent resolution on the merits.

Since passage of the HEAR Act, the tension between the legislation’s purpose to grant relief and the availability of laches has played out in two cases. The first, Zuckerman v. Metropolitan Museum of Art, in the Second Circuit, demonstrates how a laches defense can decide a dispute otherwise capable of resolution on the merits.22 22.928 F.3d 186, 193–94 (2d Cir. 2019).Show More The second, Reif v. Nagy, in New York state courts, shows how an expansive, albeit incorrect, purposive reading of the HEAR Act can sidestep laches and facilitate relief on the merits.23 23.80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act).Show More Recently, the appellants in Zuckerman had their petition for certiorari to the Supreme Court denied,24 24.Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.).Show More meaning that the availability of laches under the HEAR Act is now binding precedent in the Second Circuit. Reif, on the other hand, signals that the New York state courts may prove to be a more hospitable forum for claimants going forward.

It is not too late to aid survivors and their families in their quest for justice. Over a year after passing the HEAR Act, Congress enacted the Justice for Uncompensated Survivors Today (JUST) Act of 2017.25 25.Pub. L. No. 115-171, 132 Stat. 1288 (2018).Show More The JUST Act directs the State Department to report on the steps taken by countries that, like the United States, have themselves committed to promoting restitution for Holocaust survivors.26 26.Id. § 2(b).Show More And in early 2020, New York Governor Andrew Cuomo announced a conference “aimed at improving the State’s ability to help recover works of art and other property lost due to Nazi persecution.”27 27.Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86].Show More Congress should build on the political will in this area of bipartisan consensus28 28.Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS].Show More and modify the HEAR Act to ensure that claimants are able to resolve their claims on the merits.

Part I of this Note provides a brief history of Nazi looting as well as a history of the Washington Principles and other international and domestic initiatives prior to the HEAR Act. This background illustrates the moral and legal issues that Congress designed the Act to address. The remainder of Part I traces the HEAR Act’s legislative history and the explanations Congress did and did not offer for setting a statute of limitations while leaving laches untouched.

Part II then discusses a sample of the case law in the state and federal courts of New York, the international art capital of the world. Courts in New York have had frequent occasion to consider the application of laches to claims for artwork looted during World War II due to the state’s “demand and refusal” rule.29 29.See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658.Show More

Part III presents the argument briefly described above—that application of the doctrine of laches to claims for restitution of Nazi-looted art is irreconcilable with the HEAR Act and the Washington Principles. Part III then proposes two solutions. The first, and preferable, solution is to preclude a laches defense entirely, faithful to the first draft of the HEAR Act. This would guarantee that the Act fulfills the Washington Principles’ call to promote “a just and fair” solution.30 30.Washington Principles, supra note 7, at 792 (Principles XIII & IX).Show More As a more moderate solution, courts should be directed to inquire into whether a possessor sufficiently investigated title to contested artwork. This will allow courts to determine whether current possessors acquired artwork in true good faith, or whether they have dealt in Nazi-looted art when problems with a piece’s provenance31 31.“Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work.Show More should have been apparent. Only when a possessor exercised appropriate diligence would a laches defense be available.

  1. * J.D., University of Virginia School of Law, 2020. I am grateful to Professor Julia Mahoney for her guidance throughout the drafting of this Note. Thank you to Samantha Caravello, Read Mills, and Anna Rennich for their thoughtful comments on earlier versions. I also owe thanks to the members of the Virginia Law Review, especially Andrew Kintner, for diligent editing and insightful feedback. All errors are my own. ↑
  2. Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016). ↑
  3. See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I. ↑
  4. Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report]. ↑
  5. Id. at SR–137 to SR–139. ↑
  6. See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017). ↑
  7. See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”). ↑
  8. See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003). ↑
  9. Washington Principles, supra note 7, at 972 (Principles VIII & IX). ↑
  10. See infra Part II. ↑
  11. See id. ↑
  12. The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)). ↑
  13. See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526. ↑
  14. Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002). ↑
  15. Holocaust Expropriated Art Recovery Act § 5(a). ↑
  16. See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision. ↑
  17. S. 2763, 114th Cong. § 5(a) (2016). ↑
  18. Holocaust Expropriated Art Recovery Act § 5(a). ↑
  19. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.). ↑
  20. The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012). ↑
  21. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)). ↑
  22. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.). ↑
  23. 928 F.3d 186, 193–94 (2d Cir. 2019). ↑
  24. 80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act). ↑
  25. Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.). ↑
  26. Pub. L. No. 115-171, 132 Stat. 1288 (2018). ↑
  27. Id. § 2(b). ↑
  28. Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86]. ↑
  29. Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS]. ↑
  30. See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658. ↑
  31. Washington Principles, supra note 7, at 792 (Principles XIII & IX). ↑
  32. “Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work. ↑

The Unlimited Jurisdiction of the Federal Courts

Federal courts are courts of limited jurisdiction—but only in part. A federal court’s subject-matter jurisdiction is limited by the Constitution; its territorial, personal jurisdiction is not. Current doctrine notwithstanding, a federal court’s writ may run as far as Congress, within its enumerated powers, would have it go.

Today’s doctrine limits federal jurisdiction by borrowing Fourteenth Amendment principles thought to govern state courts. This borrowing blocks recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks; and it’s become a font of confusion for procedure scholars, giving rise to incisive critiques of the Federal Rules.

It’s also a mistake. The Fourteenth Amendment didn’t impose new limits on state personal jurisdiction; it enabled federal enforcement of limits that already applied. Current doctrine retroactively forces the Fifth Amendment into the mold of the modern Fourteenth, transforming an expansion of federal power into a strict constraint on federal authority.

The federal courts’ territorial jurisdiction depends, in the first instance, on Congress’s powers. It may be that Congress can authorize fully global jurisdiction over any suit within Article III. If not, Congress may have ways to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules seems fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

Introduction

Everyone knows that “[f]ederal courts are courts of limited jurisdiction.”1 1.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).Show More But this is only half right. A federal court’s subject-matter jurisdiction is affirmatively limited by the Constitution. Its territorial, personal jurisdiction is not. A federal court’s writ may run as far as Congress, within its enumerated powers, would have it go.

That this view might seem unusual—even alarming—reflects profound and widespread confusion about personal jurisdiction. Under current doctrine, state-court jurisdiction is hemmed in by the Fourteenth Amendment’s Due Process Clause,2 2.U.S. Const. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”).Show More which requires “minimum contacts” that satisfy “traditional notions of fair play and substantial justice.”3 3.Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).Show More The Fifth Amendment has a Due Process Clause too,4 4.U.S. Const. amend. V (“[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .”).Show More so it’s easy to imagine similar rules for federal courts. Without Supreme Court precedent on point,5 5.See Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1783–84 (2017) (“leav[ing] open the question [which restrictions] the Fifth Amendment imposes . . . on the exercise of personal jurisdiction by a federal court”); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987) (declining to decide whether “a federal court could exercise personal jurisdiction, consistent with the Fifth Amendment, based on an aggregation of the defendant’s contacts with the Nation as a whole, rather than on its contacts with the State in which the federal court sits”); Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 n.* (1987) (“We have no occasion here to determine whether Congress could, consistent with the Due Process Clause of the Fifth Amendment, authorize federal court personal jurisdiction over alien defendants based on the aggregate of national contacts, rather than on the contacts between the defendant and the State in which the federal court sits.”).Show More the courts of appeals all agree that the Fifth Amendment requires at least the sorts of national contacts that the Fourteenth Amendment requires of a state.6 6.See Double Eagle Energy Servs., L.L.C. v. MarkWest Utica EMG, L.L.C., 936 F.3d 260, 264 (5th Cir. 2019); Livnat v. Palestinian Auth., 851 F.3d 45, 54 (D.C. Cir. 2017); Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1352–53, 1353 n.2 (Fed. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 330–31 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020); Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443–44 (4th Cir. 2015); Klein v. Cornelius, 786 F.3d 1310, 1318 (10th Cir. 2015); KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 731 (7th Cir. 2013); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004); Pinker v. Roche Holdings Ltd., 292 F.3d 361, 370–71, 370 n.2 (3d Cir. 2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001); Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567–68 (6th Cir. 2001); In re Fed. Fountain, Inc., 165 F.3d 600, 601–02 (8th Cir. 1999) (en banc); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 946–47 (11th Cir. 1997); accord Brief for the United States as Amicus Curiae at 15 & n.3, Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438 (2018) (No. 16-1071).Show More In other words, current doctrine treats the United States as a state, but larger; it takes the Fourteenth Amendment as given, and remakes the Fifth Amendment in its image.7 7.See, e.g., 4 Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure § 1068.1, at 694–95, 695 n.10 (4th ed. 2015); Chimène I. Keitner, Personal Jurisdiction and Fifth Amendment Due Process Revisited, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law 231, 248 (Paul B. Stephan & Sarah H. Cleveland eds., 2020); William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 Mich. L. Rev. 1205, 1210 (2018) (noting that “[o]ther authors have advocated a national-contacts approach in various contexts, including . . . under the Fifth but not the Fourteenth Amendment,” and collecting citations); Allan Erbsen, Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather than Liberty After Walden v. Fiore, 19 Lewis & Clark L. Rev. 769, 776 (2015); Leslie M. Kelleher, Amenability to Jurisdiction as a “Substantive Right”: The Invalidity of Rule 4(k) Under the Rules Enabling Act, 75 Ind. L.J. 1191, 1216 (2000) (describing it as “generally . . . accepted” that the Fifth Amendment “requires sufficient affiliating contacts with the nation as a whole, rather than just the forum state”); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509, 523–24 (2019).Show More

This is all backwards. The Fifth Amendment came first, and the Fourteenth was modeled on it. We need to understand how personal jurisdiction was supposed to work—before the Fourteenth Amendment—if we want to understand what the Due Process Clauses actually do.

For the first 150 years of the Republic, today’s conventional view of personal jurisdiction wasn’t so conventional. Though the early Congress refrained from exercising its full powers, the recognized doctrines of jurisdiction worked very differently for state and federal courts. The narrow limits on state jurisdiction discussed in Picquet v. Swan,8 8.19 F. Cas. 609 (C.C.D. Mass. 1828) (No. 11,134).Show More a widely cited opinion by Justice Story, were still influential a half-century later in Pennoyer v. Neff.9 9.95 U.S. 714, 724 (1878); see also, e.g., Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328 (1838) (endorsing Picquet’s reasoning); Warren Mfg. Co. v. Etna Ins. Co., 29 F. Cas. 294, 298 n.4 (C.C.D. Conn. 1837) (No. 17,206) (citing Picquet) (date ascribed in Gerard Carl Henderson, The Position of Foreign Corporations in American Constitutional Law 81 n.1 (1918)); Dearing v. Bank of Charleston, 5 Ga. 497, 515 (1848) (citing Picquet); Steel v. Smith, 7 Watts & Serg. 447, 450 (Pa. 1844) (same).Show More Yet Picquet maintained that a federal court’s ability to have “a subject of England, or France, or Russia . . . summoned from the other end of the globe to obey our process, and submit to the judgment of our courts,” was up to Congress.10 10.19 F. Cas. at 613.Show More If Congress wanted to exercise exorbitant jurisdiction, contrary to “principles of public law, public convenience, and immutable justice,” a federal court “would certainly be bound to follow it, and proceed upon the law.”11 11.Id. at 614–15.Show More

The contrary modern assumption, that federal and state courts face roughly the same constitutional limits, has serious practical consequences. Two circuits recently invalidated, as applied, an act of Congress authorizing jurisdiction over foreign terrorists and sponsors for attacks on Americans abroad.12 12.See Estate of Klieman v. Palestinian Auth., 923 F.3d 1115, 1118, 1128, 1131 (D.C. Cir. 2019) (applying the Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333–2334), vacated and remanded, 140 S. Ct. 2713 (2020); Livnat v. Palestinian Auth., 851 F.3d 45, 53 (D.C. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 335–37 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020).Show More Responding to the murder of Leon Klinghoffer, the statute specifically sought to expand Americans’ right to sue over terrorist attacks in foreign countries.13 13.See Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1010–11 (7th Cir. 2002).Show More But because the individual states lack jurisdiction in these cases,14 14.See Walden v. Fiore, 571 U.S. 277, 286–89 (2014).Show More and because the attacks weren’t specifically aimed at Americans, the defendants’ U.S. contacts fell short. Congress has twice amended the statute to try different approaches, and these may yet succeed.15 15.See Promoting Security and Justice for Victims of Terrorism Act of 2019, Pub. L. No. 116-94, § 903, 133 Stat. 3082, 3082–83; Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184; Klieman, 140 S. Ct. 2713; Sokolow, 140 S. Ct. 2714.Show More If, though, Congress really does have power to authorize these suits—if its powers haven’t shrunk since Justice Story’s day—then the courts have no business sending the plaintiffs home empty-handed, or letting the defendants off scot-free.

The assumption that jurisdiction works the same way in state and federal court has serious theoretical consequences too. Today federal personal jurisdiction is litigated primarily under the Federal Rules of Civil Procedure.16 16.See Fed. R. Civ. P. 4(k).Show More But the relevant rules’ validity has been questioned since their adoption, and the skeptics have recently grown in number.17 17.See, e.g., Kelleher, supra note 7; A. Benjamin Spencer, Substance, Procedure, and the Rules Enabling Act, 66 UCLA L. Rev. 654 (2019); Patrick Woolley, Rediscovering the Limited Role of the Federal Rules in Regulating Personal Jurisdiction, 56 Hous. L. Rev. 565 (2019); accord Lumen N. Mulligan, Is Personal Jurisdiction Constitutionally Self-Enacting?, Jotwell (May 7, 2019), https://courtslaw.jotwell.com/is-personal-jurisdiction-consti­tutionally-self-enacting/ [https://perma.cc/E8G4-NVDR].Show More Limits on state jurisdiction stem from external principles of law, principles that can’t be amended by state rules of practice and procedure. If similar limits apply to federal jurisdiction, then much current practice is unlawful. But if not—if all the federal courts really need is authorization to issue process, in a particular place and in a particular way—then the Federal Rules are still valid, and the Supreme Court can still address the issue via rulemaking.

Given the stakes, federal personal jurisdiction deserves another look. Many scholars have called for expanding federal jurisdiction through new rules or statutes,18 18.See, e.g., Robert Haskell Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 32–49 (1982); Edward L. Barrett, Jr., Venue and Service of Process in the Federal Courts—Suggestions for Reform, 7 Vand. L. Rev. 608, 627–35 (1954); Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 77–84 (2010); Geoffrey C. Hazard, Jr., Interstate Venue, 74 Nw. U. L. Rev. 711, 712–13 (1979); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1123 (1966); Nash, supra note 7, at 557–61; Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1315–46 (2014); A. Benjamin Spencer, Nationwide Personal Jurisdiction for Our Federal Courts, 87 Denv. U. L. Rev. 325, 329–34 (2010); A. Benjamin Spencer, The Territorial Reach of Federal Courts, 71 Fla. L. Rev. 979, 991–94 (2019).Show More or for reinterpreting present law for policy-adjacent reasons—say, because the federal government has broader interests in foreign affairs,19 19.E.g., A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 Colum. J. Transnat’l L. 379, 409, 415–16, 428 (1997); Ariel Winawer, Comment, Too Far from Home: Why Daimler’s “At Home” Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases, 66 Emory L.J. 161, 185–87 (2016).Show More or because principles of reciprocity or horizontal federalism no longer apply at the federal level.20 20.E.g., Wendy Perdue, Aliens, the Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455, 461 (2004); Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 Va. J. Int’l L. 325, 328 & n.13 (2018); cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980) (discussing the role of “interstate federalism”).Show More Historical or formalist studies of jurisdiction tend to focus on state courts, not federal ones—and on due process, not congressional power.21 21.See, e.g., Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. Davis L. Rev. 19, 24, 43–56 (1990); Jay Conison, What Does Due Process Have To Do with Jurisdiction?, 46 Rutgers L. Rev. 1071, 1073–74, 1140–58 (1994); Geoffrey C. Hazard, Jr., A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 262–81; John B. Oakley, The Pitfalls of “Hint and Run” History: A Critique of Professor Borchers’s “Limited View” of Pennoyer v. Neff, 28 U.C. Davis L. Rev. 591, 596–97, 616–746 (1995); Wendy Collins Perdue, What’s “Sovereignty” Got To Do with It? Due Process, Personal Jurisdiction, and the Supreme Court, 63 S.C. L. Rev. 729, 730–39 (2012); Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw. U. L. Rev. 1112, 1115–20 (1981); Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1273–78, 1287–1313 (2017); Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 871–898 (1989); James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 Va. L. Rev. 169, 191–230 (2004); Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 Creighton L. Rev. 499, 570–89 (1981) [hereinafter Whitten, Part One]; Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part Two), 14 Creighton L. Rev. 735, 768–835 (1981) [hereinafter Whitten, Part Two].Show More (Justice Story’s striking discussion in Picquet, for example, has attracted virtually no scholarly interest.22 22.As of October 3, 2020, key phrases from the opinion such as “England, or France, or Russia,” “other end of the globe,” or “proceed upon the law” yield no relevant hits in Westlaw’s Secondary Sources: Law Reviews & Journals database, aside from this author.Show More)

This Article suggests a change of course. We should stop looking for jurisdictional limits in the Fifth Amendment’s Due Process Clause, and start thinking about Congress’s enumerated powers instead.

The argument proceeds as follows. Jurisdictional limits have always been with us, but Fifth Amendment limits are a recent innovation. When American courts first began articulating limits on personal jurisdiction, they didn’t look to state or federal due process clauses, but to rules of general or international law that regulated the authority of separate sovereigns.23 23.SeeSachs, supra note 21, at 1269–87.Show More The Fourteenth Amendment changed this picture for state courts, because it enabled direct federal-question review of their jurisdictional rulings: as Pennoyer explained, “proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.”24 24.Pennoyer v. Neff, 95 U.S. 714, 733 (1878).Show More

The picture for federal courts, however, is very different. Federal courts generally look to state laws only “in cases where they apply.”25 25.Rules of Decision Act, 28 U.S.C. § 1652 (2018).Show More Yet all valid federal law is “the supreme Law of the Land,” with “the Judges in every State . . . bound thereby.”26 26.U.S. Const. art. VI, cl. 2.Show More A federal long-arm provision, if within Congress’s enumerated powers, establishes territorial jurisdiction to the satisfaction of the courts; the due process objection to a judgment-without-jurisdiction can never get started. The federal government can look past a state’s assertion of jurisdiction, but not the other way round.

The Article then examines what enumerated powers Congress might use to expand federal personal jurisdiction beyond what modern doctrine allows. Broad jurisdiction might be necessary and proper to carry into execution the federal courts’ subject-matter jurisdiction.27 27.See id. art. I, § 8, cl. 18 (granting power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”).Show More If a foreigner manages to breach a federal duty, or if a citizen of a state has a controversy with a citizen or subject of a foreign state, those cases and controversies may be heard in federal court.28 28.See id. art. III, § 2, cl. 1.Show More So Congress may be within its rights to “summon[]” such defendants “from the other end of the globe to obey our process, and submit to the judgment of our courts.”29 29.Picquet v. Swan, 19 F. Cas. 609, 613 (C.C.D. Mass. 1828) (No. 11,134) (Story, Circuit Justice).Show More Or, if it can’t have process sent abroad, Congress might try unusual methods of serving foreign defendants here, parlaying what would ordinarily be limited jurisdiction into a general jurisdiction on any topic whatsoever.30 30.See id. at 615 (suggesting that Congress could authorize unorthodox jurisdiction predicated on service by attachment of property in the United States).Show More Either way, we should leave the Fifth Amendment to its own work. Due process may still require that defendants receive adequate notice,31 31.SeeMullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 320 (1950).Show More that the forum not be so burdensome as to render the proceedings a sham,32 32.See Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1036 (7th Cir. 2000) (Easterbrook, J.).Show More and so on. But as to the scope of the courts’ territorial jurisdiction, the Clause has nothing to say.

Finally, the Article turns to what Congress has actually done with its powers. A handful of statutes achieve universal jurisdiction through worldwide service of process, but most federal jurisdictional work is performed by the Federal Rules. And while the drafters of those Rules may not have fully understood their handiwork, its result appears to be lawful: the Rules Enabling Act’s “power to prescribe general rules of practice and procedure”33 33.28 U.S.C. § 2072 (2018).Show More encompasses the power to make rules for service of process, including rules for when that process will or won’t be taken as asserting the court’s jurisdiction.

So this Article may be less revisionist than first appears. If its arguments are correct, their most immediate consequence is to preserve the status quo, including the validity of the Federal Rules. The next result is to let the federal courts exercise the full breadth of the jurisdiction Congress has already conferred. And the final implication is to put Congress back in the driver’s seat, with authority to redefine the federal courts’ reach without regard to recently invented judicial barriers. If the Court adopts new standards via rulemaking, if Congress expands federal personal jurisdiction by statute, or if the President makes a jurisdictional treaty with the Senate’s advice and consent, these policy decisions wouldn’t—and shouldn’t—be hampered by an ever-expanding vision of the Due Process Clause.34 34.Cf. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 903 (2009) (Scalia, J., dissenting) (“Turn it over, and turn it over, for all is therein.” (quoting 8 The Babylonian Talmud: Seder Nezikin, Tractate Aboth 76–77 (I. Epstein ed. & trans., 1935))).Show More

  1. * Colin W. Brown Professor of Law, Duke University School of Law. The author is grateful to William Baude, Samuel Bray, Nathan Chapman, Robin Effron, James Grimmelmann, Chimène Keitner, Richard Re, Amanda Schwoerke, Patrick Woolley, Ingrid Wuerth, Ernest Young, and the attendees of the Civil Procedure Workshop and the University of Chicago Work-in-Progress Workshop for advice and comments, and to Scotty Schenck and Siqi Wang for excellent research assistance. ↑
  2. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). ↑
  3.  U.S. Const. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”). ↑
  4. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). ↑
  5. U.S. Const. amend. V (“[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .”). ↑
  6. See Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1783–84 (2017) (“leav[ing] open the question [which restrictions] the Fifth Amendment imposes . . . on the exercise of personal jurisdiction by a federal court”); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987) (declining to decide whether “a federal court could exercise personal jurisdiction, consistent with the Fifth Amendment, based on an aggregation of the defendant’s contacts with the Nation as a whole, rather than on its contacts with the State in which the federal court sits”); Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 n.* (1987) (“We have no occasion here to determine whether Congress could, consistent with the Due Process Clause of the Fifth Amendment, authorize federal court personal jurisdiction over alien defendants based on the aggregate of national contacts, rather than on the contacts between the defendant and the State in which the federal court sits.”). ↑
  7. See Double Eagle Energy Servs., L.L.C. v. MarkWest Utica EMG, L.L.C., 936 F.3d 260, 264 (5th Cir. 2019); Livnat v. Palestinian Auth., 851 F.3d 45, 54 (D.C. Cir. 2017); Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1352–53, 1353 n.2 (Fed. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 330–31 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020); Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443–44 (4th Cir. 2015); Klein v. Cornelius, 786 F.3d 1310, 1318 (10th Cir. 2015); KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 731 (7th Cir. 2013); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004); Pinker v. Roche Holdings Ltd., 292 F.3d 361, 370–71, 370 n.2 (3d Cir. 2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001); Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567–68 (6th Cir. 2001); In re Fed. Fountain, Inc., 165 F.3d 600, 601–02 (8th Cir. 1999) (en banc); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 946–47 (11th Cir. 1997); accord Brief for the United States as Amicus Curiae at 15 & n.3, Sokolow v. Palestine Liberation Org., 138 S. Ct. 1438 (2018) (No. 16-1071). ↑
  8. See, e.g., 4 Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure § 1068.1, at 694–95, 695 n.10 (4th ed. 2015); Chimène I. Keitner, Personal Jurisdiction and Fifth Amendment Due Process Revisited, in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law 231, 248 (Paul B. Stephan & Sarah H. Cleveland eds., 2020); William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 Mich. L. Rev. 1205, 1210 (2018) (noting that “[o]ther authors have advocated a national-contacts approach in various contexts, including . . . under the Fifth but not the Fourteenth Amendment,” and collecting citations); Allan Erbsen, Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather than Liberty After Walden v. Fiore, 19 Lewis & Clark L. Rev. 769, 776 (2015); Leslie M. Kelleher, Amenability to Jurisdiction as a “Substantive Right”: The Invalidity of Rule 4(k) Under the Rules Enabling Act, 75 Ind. L.J. 1191, 1216 (2000) (describing it as “generally . . . accepted” that the Fifth Amendment “requires sufficient affiliating contacts with the nation as a whole, rather than just the forum state”); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509, 523–24 (2019). ↑
  9. 19 F. Cas. 609 (C.C.D. Mass. 1828) (No. 11,134). ↑
  10. 95 U.S. 714, 724 (1878); see also, e.g., Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328 (1838) (endorsing Picquet’s reasoning); Warren Mfg. Co. v. Etna Ins. Co., 29 F. Cas. 294, 298 n.4 (C.C.D. Conn. 1837) (No. 17,206) (citing Picquet) (date ascribed in Gerard Carl Henderson, The Position of Foreign Corporations in American Constitutional Law 81 n.1 (1918)); Dearing v. Bank of Charleston, 5 Ga. 497, 515 (1848) (citing Picquet); Steel v. Smith, 7 Watts & Serg. 447, 450 (Pa. 1844) (same). ↑
  11. 19 F. Cas. at 613. ↑
  12. Id. at 614–15. ↑
  13. See Estate of Klieman v. Palestinian Auth., 923 F.3d 1115, 1118, 1128, 1131 (D.C. Cir. 2019) (applying the Anti-Terrorism Act, 18 U.S.C. §§ 2331, 2333–2334), vacated and remanded, 140 S. Ct. 2713 (2020); Livnat v. Palestinian Auth., 851 F.3d 45, 53 (D.C. Cir. 2017); Waldman v. Palestine Liberation Org., 835 F.3d 317, 335–37 (2d Cir. 2016), motion to recall the mandate denied, 925 F.3d 570 (2d Cir. 2019), vacated and remanded sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020). ↑
  14. See Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1010–11 (7th Cir. 2002). ↑
  15. See Walden v. Fiore, 571 U.S. 277, 286–89 (2014). ↑
  16. See Promoting Security and Justice for Victims of Terrorism Act of 2019, Pub. L. No. 116-94, § 903, 133 Stat. 3082, 3082–83; Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184; Klieman, 140 S. Ct. 2713; Sokolow, 140 S. Ct. 2714. ↑
  17. See Fed. R. Civ. P. 4(k). ↑
  18. See, e.g., Kelleher, supra note 7; A. Benjamin Spencer, Substance, Procedure, and the Rules Enabling Act, 66 UCLA L. Rev. 654 (2019); Patrick Woolley, Rediscovering the Limited Role of the Federal Rules in Regulating Personal Jurisdiction, 56 Hous. L. Rev. 565 (2019); accord Lumen N. Mulligan, Is Personal Jurisdiction Constitutionally Self-Enacting?, Jotwell (May 7, 2019), https://courtslaw.jotwell.com/is-personal-jurisdiction-consti­tutionally-self-enacting/ [https://perma.cc/E8G4-NVDR]. ↑
  19. See, e.g., Robert Haskell Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 32–49 (1982); Edward L. Barrett, Jr., Venue and Service of Process in the Federal Courts—Suggestions for Reform, 7 Vand. L. Rev. 608, 627–35 (1954); Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 77–84 (2010); Geoffrey C. Hazard, Jr., Interstate Venue, 74 Nw. U. L. Rev. 711, 712–13 (1979); Arthur T. von Mehren & Donald T. Trautman, Jurisdiction To Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1123 (1966); Nash, supra note 7, at 557–61; Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1315–46 (2014); A. Benjamin Spencer, Nationwide Personal Jurisdiction for Our Federal Courts, 87 Denv. U. L. Rev. 325, 329–34 (2010); A. Benjamin Spencer, The Territorial Reach of Federal Courts, 71 Fla. L. Rev. 979, 991–94 (2019). ↑
  20. E.g., A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 Colum. J. Transnat’l L. 379, 409, 415–16, 428 (1997); Ariel Winawer, Comment, Too Far from Home: Why Daimler’s “At Home” Standard Does Not Apply to Personal Jurisdiction Challenges in Anti-Terrorism Act Cases, 66 Emory L.J. 161, 185–87 (2016). ↑
  21. E.g., Wendy Perdue, Aliens, the Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455, 461 (2004); Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57 Va. J. Int’l L. 325, 328 & n.13 (2018); cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980) (discussing the role of “interstate federalism”). ↑
  22. See, e.g., Patrick J. Borchers, The Death of the Constitutional Law of Personal Jurisdiction: From Pennoyer to Burnham and Back Again, 24 U.C. Davis L. Rev. 19, 24, 43–56 (1990); Jay Conison, What Does Due Process Have To Do with Jurisdiction?, 46 Rutgers L. Rev. 1071, 1073–74, 1140–58 (1994); Geoffrey C. Hazard, Jr., A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241, 262–81; John B. Oakley, The Pitfalls of “Hint and Run” History: A Critique of Professor Borchers’s “Limited View” of Pennoyer v. Neff, 28 U.C. Davis L. Rev. 591, 596–97, 616–746 (1995); Wendy Collins Perdue, What’s “Sovereignty” Got To Do with It? Due Process, Personal Jurisdiction, and the Supreme Court, 63 S.C. L. Rev. 729, 730–39 (2012); Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw. U. L. Rev. 1112, 1115–20 (1981); Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1273–78, 1287–1313 (2017); Roger H. Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 871–898 (1989); James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 Va. L. Rev. 169, 191–230 (2004); Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 Creighton L. Rev. 499, 570–89 (1981) [hereinafter Whitten, Part One]; Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part Two), 14 Creighton L. Rev. 735, 768–835 (1981) [hereinafter Whitten, Part Two]. ↑
  23. As of October 3, 2020, key phrases from the opinion such as “England, or France, or Russia,” “other end of the globe,” or “proceed upon the law” yield no relevant hits in Westlaw’s Secondary Sources: Law Reviews & Journals database, aside from this author. ↑
  24. See Sachs, supra note 21, at 1269–87. ↑
  25. Pennoyer v. Neff, 95 U.S. 714, 733 (1878). ↑
  26. Rules of Decision Act, 28 U.S.C. § 1652 (2018). ↑
  27. U.S. Const. art. VI, cl. 2. ↑
  28. See id. art. I, § 8, cl. 18 (granting power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). ↑
  29. See id. art. III, § 2, cl. 1. ↑
  30. Picquet v. Swan, 19 F. Cas. 609, 613 (C.C.D. Mass. 1828) (No. 11,134) (Story, Circuit Justice). ↑
  31. See id. at 615 (suggesting that Congress could authorize unorthodox jurisdiction predicated on service by attachment of property in the United States). ↑
  32. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 320 (1950). ↑
  33. See Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1036 (7th Cir. 2000) (Easterbrook, J.). ↑
  34. 28 U.S.C. § 2072 (2018). ↑
  35. Cf. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 903 (2009) (Scalia, J., dissenting) (“Turn it over, and turn it over, for all is therein.” (quoting 8 The Babylonian Talmud: Seder Nezikin, Tractate Aboth 76–77 (I. Epstein ed. & trans., 1935))). ↑
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