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

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

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