Article

Conflict Avoidance in Constitutional Law

­­­­Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as impartial decision makers. Theories of constitutional adjudication tend to embrace one horn of this dilemma. We explore a principle for deciding hard cases that appreciates both. We argue that courts should decide hard cases against the party who could have more easily avoided the conflict in the first place. This is the conflict-avoidance principle. The principle builds on and systematizes “least cost avoidance” in private law and myriad constitutional doctrines. We apply the principle to several cases, generating insights into discrimination, affirmative action, religion, and so on. The principle represents a form of common-law constitutionalism, and it reveals connections between rights, markets, and State power. It also invites objections, to which we respond. Conflict avoidance is not “value-neutral,” and it cannot resolve every hard case. But it can resolve many in a practical way.

Take any demand, however slight, which any creature, however weak, may make. Ought it not, for its own sole sake, to be satisfied? If not, prove why not? The only possible kind of proof you could adduce would be the exhibition of another creature who should make a demand that ran the other way.

William James (1891)1 1.William James, The Moral Philosopher and the Moral Life, 1 Int’l J. Ethics 330, 339 (1891).Show More

Introduction

How should courts resolve hard constitutional cases?2 2.See Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1060 (1975) (defining hard cases as ones where “no settled rule dictates a decision either way”).Show More On the one hand, deciding them on the merits strains courts’ credibility as impartial decision makers, especially when they engage in judicial review of legislation where the constitutional text is vague and the interests at stake essentially political.3 3.See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 971–73, 977–78 (1987) (criticizing interest balancing). For a thorough and optimistic account of the capacity of courts to balance interests optimally, see generally Robert Alexy, A Theory of Constitutional Rights (Julian Rivers trans., Oxford Univ. Press 2002) (1986) (offering an account of constitutional rights that connects the analytical, empirical, and normative dimensions of legal doctrine); Robert Alexy, Constitutional Rights, Balancing, and Rationality, 16 Ratio Juris. 131 (2003) (arguing that there is a rational structure within balancing). Roughly speaking, interest balancing focuses on which party (or possibly which group) can bear a loss in court more easily. Are the losses to this side (or to this principle) outweighed by the gains to the other? Our enterprise is quite different. We focus on which party could have avoided more easily the conflict that led to the hard case in the first place.Show More On the other hand, courts are constitutionally charged with deciding such cases. A refusal to decide them amounts to shirking that responsibility.4 4.U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 70 (1962) (explaining that not deciding cases must “be justified as compatible with the Court’s role as defender of the faith”).Show More Theories of constitutional adjudication often embrace one horn of this dilemma.5 5.Theories of judicial deference embrace the first horn by treating most constitutional issues as political ones appropriately decided by the political branches. See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 129–39 (1893) (explaining origins of judicial review); see also Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 7–8 (2004) (comparing early judicial review to contemporary practice). Originalist theories, “moral” interpretations, and “living constitutionalism” tend to treat constitutional questions as essentially legal questions with which the Court is properly tasked with deciding, thereby embracing the second horn. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 45–46 (1997) (discussing issues with living constitutionalist interpretations); James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, 92 B.U. L. Rev. 1171, 1172–73 (2012) (offering a “complete, ecumenical approach to constitutional interpretation”); David A. Strauss, The Living Constitution 41–44 (2010) (arguing that judges and lawyers are not properly equipped for originalist interpretation). Process theory and prudential approaches attempt to reconcile the two. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 4–5 (1980) (arguing that judicial review is best justified when it can be understood as a mechanism for improving the democratic process); Bickel, supra note 4, at 64 (“No good society can be unprincipled; and no viable society can be principle-ridden.”). Our approach draws on elements of both the process and prudential traditions.Show More This Article explores a principle that appreciates the force of both horns: courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place. We call this the conflict-avoidance principle.

To preview the principle, consider an example. Suppose a student wears a Confederate flag shirt to school, in violation of the dress code, and gets disciplined. She argues that this violates her free speech rights, and the school responds that it has the authority to ensure a conducive learning environment.6 6.Cf. Castorina ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d 536, 538, 548 (6th Cir. 2001) (noting that a “disruption-free educational environment is a substantial government interest”); Defoe v. Spiva, 625 F.3d 324, 335 (6th Cir. 2010) (holding that the school officials’ concern that displays of the Confederate flag would be disruptive was reasonable).Show More For the sake of argument, assume the case is hard (we will say more about “hard cases” below). A court applying conflict avoidance would compare the relative costs to the parties of avoiding the conflict in the first place. Could the student have expressed herself in another way? Could she have transferred to a school with a more permissive dress code? Could the school have ensured a conducive environment without banning the flag? Whoever could have avoided the conflict more easily would lose.

This is a simple example, but the principle applies the same way in real, controversial cases like Masterpiece Cakeshop, Our Lady of Guadalupe School, Fisher, and Janus.7 7.Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (on discrimination and religion); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (same); Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) (on affirmative action); Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (on speech).Show More We will examine these cases and others below.

Applying the conflict-avoidance principle has several advantages. For one thing, it requires courts to decide cases instead of deflecting or delaying judgment.8 8.Cf. Bickel, supra note 4, at 71 (approving Justice Brandeis’s statement that “[t]he most important thing we do . . . is not doing” and observing that Brandeis “had in mind all the techniques . . . for staying the Court’s hand”).Show More Second, and more important, applying the conflict-avoidance principle requires courts to decide cases by looking to relatively concrete facts and considerations, rather than to abstract political values. Such an approach not only plays to courts’ institutional strengths; it may also produce a pattern of decisions that vindicate the relevant values where they are needed most. That, at least, is the theory of the common law.9 9.Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 883 (2006) (“Treating the resolution of concrete disputes as the preferred context in which to make law . . . is the hallmark of the common law approach.”).Show More As Oliver Wendell Holmes famously said, “[i]t is the merit of the common law that it decides the case first and determines the principle afterwards.”10 10.Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1, 1 (1870) (unsigned article by Oliver Wendell Holmes).Show More

Finally, the conflict-avoidance principle encourages parties to avoid the sorts of conflicts that produce hard cases. Deciding such cases imposes real costs. In addition to financial costs, such cases can undercut the legitimacy of courts as judicial institutions, especially when the political stakes are high.11 11.Precisely that concern underlies the Supreme Court’s practice of treating some politically charged issues as “political questions,” incapable of impartial judicial resolution. See Baker v. Carr, 369 U.S. 186, 217 (1962) (stating that cases lacking “judicially discoverable and manageable standards” or requiring a “policy determination of a kind clearly for nonjudicial discretion” involve political questions).Show More Furthermore, deciding hard cases can lead to errors in the sense that judges do not know the “correct” answer (if they did, the case would not be hard). We think reducing the incidence of hard cases is itself a benefit.12 12.We relax the assumption that deciding hard cases imposes more costs than benefits. See infra Part V.Show More

The conflict-avoidance principle has roots in private and public law. It relates to least cost avoidance, which Guido Calabresi identified and developed in tort law.13 13.Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 135 (1970) (advocating placing liability on “those acts or activities . . . which could avoid the accident costs most cheaply”).Show More It also resonates with various constitutional doctrines—such as time, place, and manner doctrines in First Amendment law—that inquire into the alternative courses of action available to the parties to a dispute.14 14.See infra Part IV.Show More Also, some scholars have advanced proposals that sound in cost avoidance.15 15.The clearest example would appear to come from Professor Tang, who has two papers in draft form. See Aaron Tang, The Costs of Supreme Court Decisions: Towards a Best Cost-Avoider Theory of Constitutional Law (Sept. 27, 2019) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3457533 [https://perma.cc/3UAQ-WF­WW] [hereinafter Tang, Cost-Avoider]; Aaron Tang, Constitutional Law After Mazars, Vance, & June Medical: The Case for Harm-Avoider Constitutionalism, 109 Calif. L. Rev. (forthcoming 2021) (on file with authors) [hereinafter Tang, Harm-Avoider]. Professor Tang’s work and ours, which developed simultaneously and independently, are quite different. In brief, we aim to minimize conflicts by placing the onus on the party who could have avoided the dispute at lowest cost, whereas Professor Tang aims to minimize the “costs” of judicial decisions by placing the onus on the group that could bear the loss most easily. See infra note 46. Professor Tang’s work relates more closely to interest balancing, covering, or mitigation (i.e., bearing loss after the fact) than to a conventional understanding of avoidance (preventing the loss from occurring).For other scholarship that sounds in conflict avoidance, see, for example, Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167, 193 (arguing that free exercise claims by service providers should not prevail over non-discrimination claims by LGBT customers in communities where “discrimination is still widespread”); J.H. Verkerke, Is the ADA Efficient?, 50 UCLA L. Rev. 903, 941 (2003) (applying least cost avoidance to disability law in the workplace); Robert D. Cooter, The Strategic Constitution 129–32 (2000) (connecting rights to mobility costs); Frank I. Michelman, Pollution as a Tort: A Non-Accidental Perspective on Calabresi’s Costs, 80 Yale L.J. 647, 666–86 (1971) (book review) (applying least cost avoidance to pollution).We note that conflict avoidance can be seen as a distinct kind of “minimalist” theory of adjudication. See, e.g., Cass Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 355–56 (2006). Minimalist theories direct judges to concentrate on the facts of the case. See id. at 376 (describing as non-minimalist an approach that is “not limited to the facts of particular cases”). Conflict avoidance directs judges to focus on a particular subset of facts, namely on who could have avoided the conflict more easily.Finally, we note that our argument is consistent with a broader, emerging approach to constitutional law. See generally Robert D. Cooter & Michael D. Gilbert, Constitutional Law and Economics, in Research Methods in Constitutional Law: A Handbook (Malcolm Langford & David S. Law eds., forthcoming 2021) (discussing the emergence of economic theory as applied to constitutional law).Show More Thus, we do not offer a radically new approach to constitutional adjudication. Rather, we collect strands of reasoning that already permeate law and legal scholarship and show how, once systematized, they yield a promising and innovative approach to hard cases.

Why hasn’t anyone systematized these ideas before? Why haven’t judges and scholars, many of whom are familiar with least cost avoidance, already applied these ideas to constitutional law? Here is one explanation. Constitutional adjudication often proceeds “top-down.”16 16.Richard A. Posner, Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. Chi. L. Rev. 433, 433 (1992) (defining top-down reasoning as when “the judge or other legal analyst invents or adopts a theory about an area of law—perhaps about all law—and uses it to organize, criticize, accept or reject, explain or explain away, distinguish or amplify the existing decisions to make them conform to the theory and generate an outcome in each new case as it arises that will be consistent with the theory”).Show More The constitutional principles at stake loom large, sweeping away particular case facts. In contrast, least cost avoidance proceeds in a “bottom-up,” context-sensitive fashion.17 17.For an analysis of the formal difference between bottom-up and top-down reasoning, see Charles L. Barzun, Justice Souter’s Common Law, 104 Va. L. Rev. 655, 708–13 (2018) (explaining that, whereas under top-down reasoning, courts apply a fixed major premise (or rule) to the minor premise (or facts) in order to deduce a conclusion, with bottom-up forms of reasoning, the judge aims to let the facts of the case themselves be the guide to the proper outcome).Show More Courts concentrate on the facts (who could have avoided the crash more easily?), rather than on how to best apply the relevant legal principles. Applying least cost avoidance to the Constitution requires taking a bottom-up approach to a subject dominated by top-down reasoning.18 18.Of course, our approach is top-down in the sense that it involves applying the conflict-avoidance principle to many different cases. But the point is that it is a meta-principle that directs courts to focus on the sort of factual nuances that bottom-up approaches consider critical.Show More

Gesturing at least cost avoidance and “bottom-up” reasoning is easy. The hard part is translating it to constitutional law. We take the main contribution of our project to lie in showing what the translation requires.

The conflict-avoidance principle is not a panacea; nor does it claim “value-neutrality.” But it does offer a fresh way of thinking about how to resolve hard cases. Rather than seeing constitutional conflicts as brute clashes of values—liberty vs. equality, positive liberty vs. negative liberty, substantive equality vs. formal equality—courts might make more progress by looking at the concrete difference that vindicating those values would have made in parties’ actual lives. The goal is to see what work rights claims are doing in social and political life.

We develop our argument in five Parts. Part I clarifies the scope of the principle: we confine its use to hard cases, where “hard cases” has a specific meaning that we will explain. Part II briefly reviews least cost avoidance in private law, drawing out a key distinction between avoiding costs and bearing them. Part III operationalizes the conflict-avoidance principle by developing a doctrinal test for its application. Part IV applies the test to real cases, including recent, controversial cases before the Supreme Court. In Part V, we respond to various objections. The Conclusion develops a broader point. Although the conflict-avoidance principle requires no special commitment to private ordering or negative liberty, it does illuminate a connection between markets, rights, and State power.

Settled Law

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even though it does not embody any single, unified idea. First, we argue that controlling law, which essentially corresponds to binding precedent, is a fundamentally distinct concept that is neither synonymous with nor a subset of settled law. Second, we draw on seminal jurisprudential theories to build a taxonomy of five frameworks that capture how legal actors can invoke settled law, both rhetorically and doctrinally. Third, we demonstrate how a clearer understanding of settled law can make doctrine more coherent and administrable. Situating certain doctrines within the appropriate frameworks, and not conflating controlling law and settled law, would resolve myriad doctrinal anomalies. Moreover, greater conceptual precision can improve political rhetoric during the confirmation process by promoting clearer dialogue and discouraging legal actors from talking past one another.

Introduction

What does it mean to say that Roe v. Wade1 1.410 U.S. 113 (1973).Show More is “settled law”? Or Citizens United v. FEC?2 2.558 U.S. 310 (2010).Show More Or even Brown v. Board of Education?3 3.347 U.S. 483 (1954).Show More

The idea of settled law has played a pivotal role in Supreme Court confirmation hearings for more than thirty years, and it has animated myriad legal doctrines as far back as the eighteenth century.4 4.See, e.g., Penhallow v. Doane’s Adm’rs, 3 U.S. (3 Dall.) 54, 118 (1795) (Cushing, J.) (describing as “settled law and usage” the idea that “courts of Admiralty can carry into execution decrees of foreign Admiralties”).Show More Yet the meaning of settled law has proved stubbornly elusive. Does it refer simply to the idea that the Supreme Court has decided a particular issue, or does it connote something more enduring about particular precedents? Does it imply that a precedent is somehow “right”? Which courts (or other legal actors) have the power to settle the law? And how exactly does that happen?

Even though settled law had come up during earlier confirmation hearings,5 5.See, e.g., Nomination of Justice William Hubbs Rehnquist: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 356 (1986) (statement of Rehnquist, J.) (declaring that the incorporation of the right to a speedy trial through the Fourteenth Amendment “is settled law, and [his] opinions reflect it”); Nomination of Judge Antonin Scalia: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 83 (1986) (statement of Sen. Specter) (asking whether Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), “is a settled issue”); id. at 104 (statement of Sen. Biden) (“If it’s on the books, if it is settled constitutional law for an extended period of time, and the argument to overturn that settled constitutional principle does not in fact meet the test of on its face being consistent with what the correct constitutional principle is, do you have to stick with what the settled law is?”).Show More it first took center stage in the political arena during the Bork hearings. Under intense scrutiny about his academic writings, Judge Bork repeatedly tried to parry criticism of his controversial views by promising over and over that he would respect “settled law,” even if he disagreed with it.6 6.See, e.g., Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 279 (1987) (statement of Bork, J.) (repeatedly calling Brandenburg v. Ohio, 395 U.S. 444 (1969),“settled”); id. at 327 (declaring that “I certainly have no desire to go running around trying to upset settled bodies of law”); id. at 423 (“It seems to me that the settled law is now that the person writing the book does not have to prove that it is political or any way connected to politics. The settled law is the Government has to prove it is obscene.”); id. at 428 (“I am not changing my criticism of [Brandenburg]. I just accept it as settled law.”); id. at 434 (“It’s settled law. . . . I have said that I accept that body of precedent and will apply it. That’s all I’ve said.”); id. at 438 (declaring that “some things are absolutely settled in the law” and that “[a]ny judge understands that you don’t tear those things up”); id. at 587 (“I accept them as settled law. I have not said that I agree with all of those opinions now, but they are settled law and as a judge that does it for me.”); id. at 667 (“I have repeatedly said there are some things that are too settled to be overturned.”).Show More And notably, Judge Bork used that term to mean something quite distinct from the familiar principles of stare decisis.7 7.See id. at 989 (statement of Sen. Specter) (“[Judge Bork] flatly made a commitment to accept settled law. On the privacy cases he has not made that commitment. He has talked about various considerations of reliance and stare decisis, but he has made no commitment on privacy . . . .”).Show More Since then, every Supreme Court nominee has faced questions about settled law, even as the term’s ambiguity has grown increasingly apparent.8 8.See infra notes 278–85 and accompanying text.Show More

Discussions of settled law have become even more prominent in recent years as President Trump’s judicial nominees faced pointed questions about whether they agreed with certain precedents or, at a minimum, regarded them as settled.9 9.SeeLaura Meckler & Robert Barnes, Trump Judicial Nominees Decline To EndorseBrown v. Board Under Senate Questioning, Wash. Post (May 16, 2019, 7:28 PM), https://www.washingtonpost.com/local/education/trump-judicial-nominees-decline-to-endo­rse-brown-v-board-under-senate-questioning/2019/05/16/d5409d58-7732-11e9-b7ae-390de­4259661_story.html [https://perma.cc/F5FK-GNPW] (describing how Sen. Blumenthal frequently asks whether nominees regard Brown as correct); Marcia Coyle, Revisiting Amy Coney Barrett Statements About Abortion Rights, Nat’l L.J. (Sept. 25, 2020, 3:12 PM), https://www.law.com/nationallawjournal/2020/09/25/revisiting-amy-coney-barrett-statemen­ts-about-abortion-rights/?slreturn=20200908080816 [https://perma.cc/2EKP-YDQE] (des­cribing how Sen. Blumenthal asked then-nominee Amy Coney Barrett if she “think[s] Roe v. Wade was correctly decided”).Show More Sometimes nominees have refused to engage.10 10.See Meckler & Barnes, supra note 9 (describing nominees who refused to directly answer Sen. Blumenthal’s question about Brown); see alsoAriane de Vogue, Judicial Nominees Are Changing Their Approach to the ‘Brown v. Board’ Question at Senate Hearings, CNN (Feb. 10, 2019), https://www.cnn.com/2019/02/10/politics/brown-v-board-senate-judicial-nom­inees/index.html [https://perma.cc/8BP5-7PBZ] (noting that in response to Sen. Blumenthal’s question about Brown, now-Judge Neomi Rao described the case as “longstanding precedent of the Supreme Court,” declared that it was “not appropriate” to comment on the “correctness of particular precedents,” but argued that “it’s hard for me to imagine a circumstance in which Brown v. Board would be overruled by the Supreme Court”).Show More On other occasions, Senators and nominees have appeared to use “settled law” in conspicuously different ways,11 11.For example, in 2010, then-Senator Sessions suggested that “settled law” connoted “a more firm acknowledgment of the power of that ruling” than mere “precedent” and asked then-U.S. Solicitor General Elena Kagan whether she was using “settled law” and “precedent” interchangeably. The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 231 (2010) (statement of Sen. Sessions). She responded: “I don’t mean any difference.” Id. (statement of Elena Kagan, Solicitor General of the United States).Show More a phenomenon brought into stark relief during Justice Kavanaugh’s confirmation hearing. Responding to a question from Senator Feinstein, the future Justice declared that Roe v. Wade was “settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”12 12.C-SPAN, Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 2, Part 1, C-SPAN (Sept. 5, 2018), https://www.c-span.org/video/?449705-1/supreme-court-nom­inee-brett-kavanaugh-confirmation-hearing-day-2-part-1 [https://perma.cc/7N8B-S2­MC] (relevant exchange occurring from 48:25 to 49:10).Show More The next day, The New York Times published a previously confidential e-mail from 2003 in which Kavanaugh had written: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”13 13.Charlie Savage, Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action, N.Y. Times (Sept. 6, 2018), https://www.nytimes.com/2018/09/06/us/politics/­kavanaugh-leaked-documents.html [https://perma.cc/3C4Q-7SAH].Show More These statements provided grist for some to call him disingenuous.14 14.See, e.g.,Igor Bobic, Susan Collins Downplays Brett Kavanaugh Email About Abortion Rights and ‘Settled Law’, HuffPost (Sept. 6, 2018, 4:58 PM), https://www.huffpost.com/­entry/brett-kavanaugh-susan-collins-roe-v-wade_n_5b9165b1e4b0511db3e04121 [https://p­erma.cc/4YMT-J9S5] (quoting Sen. Blumenthal urging undecided Republicans to “read this [email] and then tell [him] Judge Kavanaugh has been candid with [them]”).Show More Others argued that he was making distinct and mutually consistent claims—a prediction of whether the Court would revisit the abortion precedents versus an assessment of whether those precedents should stand undisturbed.15 15.See, e.g., id. (quoting Sen. Collins saying that Kavanaugh “was merely stating a fact, which is that three [Justices] on the [C]ourt were anti-Roe,” and “[i]f that’s the case and he was not expressing his view, then [she was] not sure what the point of it [was]”).Show More

Settled law is far more than an enigmatic buzzword that gets bandied about during confirmation hearings, though; it also serves an important structural role and has profound doctrinal implications. For example, lower-court judges often speak about their duty to follow the settled law of superior courts.16 16.See infra notes 26–27 and accompanying text.Show More Most surprisingly, an array of doctrines depend substantively on whether the law is “settled.” In the realm of constitutional torts, for instance, a plaintiff attempting to bring a Section 1983 claim usually must overcome the defendant’s qualified immunity by showing that the defendant violated a constitutional rule that was “clearly established” under “settled law.”17 17.District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); see also id. at 591 (“The rule applied by [the court below] was not clearly established because it was not ‘settled law.’” (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991))).Show More So, too, settled law undergirds the circumstances when post-conviction relief is available,18 18.E.g., In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000) (holding that whether the settled law established the legality of a conviction is part of the Fourth Circuit’s three-prong test to determine the availability of a writ of habeas corpus).Show More lawyers’ ethical obligations under Rule 11,19 19.E.g., Pro. Mgmt. Assocs. v. KPMG LLP, 345 F.3d 1030, 1033 (8th Cir. 2003) (remanding and ordering the lower court to impose a Rule 11 sanction to a plaintiff’s counsel for ignoring the “well-settled law” of res judicata under the circumstances of the case).Show More standards of review,20 20.E.g., United States v. Gary, 954 F.3d 194, 202 (4th Cir. 2020) (quoting United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014)) (holding that “if the settled law of the Supreme Court or this circuit establishes that an error has occurred,” the error satisfies the plain error standard of review).Show More and a host of other doctrines.21 21.See, e.g., Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (quoting Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)) (fraudulent joinder).Show More Across these contexts, though, a firm understanding of what counts as settled law has proved chimerical.

Given the definitional morass, one might conclude that “‘settled law’ is just a euphemism.”22 22.Ilya Somin, Why “Settled Law” Isn’t Really Settled—and Why That’s Often a Good Thing, Reason: The Volokh Conspiracy (Sept. 9, 2018, 3:57 PM), https://reason.com/­2018/09/09/why-settled-law-isnt-really-settled-and/ [https://perma.cc/4N­SU-3N4A].Show More On this view, the term is so capacious as to become meaningless, conveying nothing useful about the weight that precedent deserves or the conditions (if any) under which a court should overrule it.

Our principal goal is to show that settled law does coherent and powerful work, even though it resists a single, overarching definition. In fact, settled law makes sense only when one appreciates that it comprises several distinct notions that do not share a common attribute. A more precise understanding of this hydra-like term has the power to clarify doctrine and improve political rhetoric. What seem like conceptual oddities in a number of doctrines actually make good theoretical sense when viewed through the lens of settled law. Moreover, settled law can play a meaningful role in confirmation hearings, but only if legal actors fully grasp its multifaceted nature. It offers a productive way to explore how politicians, judicial nominees, and the general public understand the judicial role, including how the obligations of Supreme Court Justices differ from those of lower-court judges.

We begin in Part I by differentiating between two concepts that we call controlling law and settled law. Controlling law essentially refers to the concept of binding precedent, including in its most conspicuous manifestation: an inferior court’s duty to follow the precedents of superior courts. Although one might think of controlling law as a species of settled law, we argue that the two are actually distinct ideas that address very different questions and are, at most, only tangentially related. Much of the confusion about settled law, in fact, stems from conflating these concepts. Not allowing discussions of settled law to revert into the familiar language of controlling law is thus a critical first step.

Part II demonstrates that settled law is not just an empty euphemism, even though it doesn’t embrace a single idea. In fact, settled law makes sense only when one appreciates that it comprises several notions that do not share a common attribute.

On an intuitive level, the starkest divide lies between normative and descriptive claims about settled law. For example, someone might classify Brown as settled law, normatively, because it achieved the right substantive result. Or, irrespective of Brown’s fundamental correctness, one might view it as descriptively settled because everyone recognizes that it’s here to stay. Even within these broad categories, though, variation abounds. For example, calling Brown normatively settled could mean that the decision was consonant with the original meaning of the Fourteenth Amendment or, alternatively, that it achieved a socially desirable outcome by advancing the cause of racial justice. Calling Brown descriptively settled could mean that the Supreme Court has left the precedent undisturbed for more than fifty years, that a future Court is unlikely to overrule it, that principles of stare decisis have effectively entrenched it, or that it has achieved wide popular acceptance.

We bring theoretical rigor to this intuition about the descriptive-normative divide by overlaying it with seminal jurisprudential theories: formalism, realism, and legal process theory. Based on these theories, we develop a taxonomy of five concepts that “settled law” can embrace.

The first two concepts derive from legal formalism.23 23.See, e.g., Warren Sandmann, The Argumentative Creation of Individual Liberty, 23 Hastings Const. L.Q. 637, 645 (1996) (“Legal formalism . . . is in its many guises one of the more dominant approaches to judicial decisionmaking.”).Show More As a normative matter, a formalist insists that law is settled when it has achieved the demonstrably “right” result based on the law’s internal logic.24 24.Thomas C. Grey, Langdell’s Orthodoxy, 45 U. Pitt. L. Rev. 1, 8 (1983).Show More But from a descriptive perspective, a formalist might accept that law is settled—even if it has not reached the objectively correct result—when the concerns of stare decisis, such as reliance, predictability, and basic fairness, are paramount.25 25.See Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1874 (2013) (citing Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155, 186, 192–95 (2006)) (describing a “neoformalist” model of stare decisis in which even judicial “mistakes” can and should create binding precedents, if they are decided through a formalistic process of reasoning); Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017) (describing Justice Scalia’s approach to the tension between the value of stare decisis and a formalistic, originalist reading of the Constitution).Show More

The next two concepts of settled law draw on the legal realist school.26 26.SeeFrederick Schauer, Legal Realism Untamed, 91 Tex. L. Rev. 749, 749 (2013) (“Legal Realism is conventionally understood, in part, to question legal doctrine’s determinacy and positive law’s causal effect on judicial decisions.”).Show More Descriptively, a realist regards law as settled when it faces no material threat of reversal.27 27.As we build out below, it essentially constitutes an exercise in Holmesian Prediction Theory. SeeO.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897).Show More Normatively, a realist will insist that law is settled only when it has achieved the “right” result, but she understands that idea very differently than a formalist does. The correct result for a legal realist corresponds to some external frame of reference, such as utility, efficiency, or social justice.28 28.For the foundational realist works encouraging an interdisciplinary approach to law, see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935); Jerome Frank, Law & the Modern Mind (Transaction Publishers 2009) (1930); Karl N. Llewellyn, Law and the Social Sciences—Especially Sociology, 62 Harv. L. Rev. 1286 (1949); Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence (pts. 1 & 3), 24 Harv. L. Rev. 591 (1911), 25 Harv. L. Rev. 489 (1912).Show More

The fifth and final concept of settled law draws on legal process theory, which focuses on a legal decision’s methodological process rather than its substantive outcome.29 29.The seminal tome of the legal process school is Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). For an overview of the related concept of procedural justice, see Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004).Show More For the legal process theorist, law is settled if and when a duly constituted court reaches a decision through an appropriate methodology, and within this framework the descriptive and normative perspectives essentially become inseparable.

A simple illustration might help reify these five theoretical concepts. Consider the question: “Is Marbury v. Madison settled law?” Nearly everyone would say “yes,” but Table 1 identifies more precisely the five different ideas that someone could intend to communicate when asserting that Marbury is settled.

Table 1: The Taxonomy of Settled Law

Framework

Marbury v. Madison is settled law.

Normative Formalism

Marbury arrived at the objectively correct understanding of constitutional law.

Descriptive Formalism

Principles of stare decisis require continued adherence to Marbury.

Descriptive Realism

There is no material chance that the Supreme Court will overrule Marbury in the near future.

Normative Realism

Marbury achieved a desirable outcome in light of its intra- and extra-legal consequences.

Legal Process

Marbury merits continued adherence because it was issued by a duly constituted court employing an appropriate methodology.

In Part III, we show why developing a clearer understanding of settled law is far more than an academic exercise. At the intensely practical level, settled law suffuses a diverse array of doctrines, and failing to appreciate how it functions has led to pervasive confusion and mistakes. Our principal example comes from the qualified immunity context. Although courts often cast the relevant inquiry in terms of controlling law—whether binding precedent has clearly established that a particular right exists—this approach has invited a host of anomalies and errors. Instead, we argue that viewing qualified immunity through the lens of settled law makes much more sense doctrinally and normatively. Moreover, understanding qualified immunity as turning on settled law—specifically, two of the taxonomy’s five concepts—alleviates nearly all of the current conceptual problems and has the potential to refocus courts on the heart of the inquiry.

Finally, we argue that a more nuanced understanding of settled law can enhance legal dialogue, particularly the conversation about judicial nominations. Too often legal actors talk past one another because they use “settled law” to convey different ideas, and that in turn can lead to unfounded allegations of bad faith. On this level, the taxonomy is not a panacea; far from it. But greater conceptual clarity about settled law can train attention on the debates that truly matter rather than a bewitching semantic game.

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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