The Fallacy of the "New Originalism"

Mon Sep 4 16:00:58 PDT 2006

>From an originalist standpoint, "due process" must be defined by reference to the rules about the adequacy of notice that were extant in 1868 rather than utilizing an evolutionary conception of adequate notice.  The 1868 rules required personal service in the forum jurisdiction or attachment/seizure of property in the forum jurisdiction.  There was no conception of long-arm jurisdiction or extraterritorial service in 1868.  That is why International Shoe is, at least in my view, defensible only on nonoriginalist grounds.

Larry Rosenthal
Chapman University School of Law

________________________________

From: Janet Alexander [mailto:jca at stanford.edu]
Sent: Mon 9/4/2006 2:27 PM
To: Rosenthal, Lawrence; Janet Alexander; conlawprof at lists.ucla.edu
Subject: RE: The Fallacy of the "New Originalism"

The main burden of the opinion is the holding that, under principles of "public law," a court lacks power to extend its process outside its borders, and jurisdiction based on the presence of property within the state is not proper unless the property is attached at the beginning of the suit.  This holding is based on "general, if not universal, law," not constitutional law, and it was a wholly sufficient ground upon which to affirm the judgment below.  The dissent agreed with this principle, but denied that attachment at the beginning, rather than the end, of the suit was required by general law; it would have permitted state statutes such as Oregon's.  The discussion of jurisdictional power under general law occupies 14 pages of the Court's opinion.  The due process holding is 3 paragraphs, occupying less than 2 pages.  (A further 2 pages are spent explaining what the opinion does not bar.)  Others can decide on reading the case whether the Court "uses" the general law "concept" (which I read as a holding) to "support" its holding.  

Obviously the constitutionalization of personal jurisdiction was extremely important, and equally obviously, Shoe was a huge milestone in the law of due process.  Note that Shoe came a few years after Erie disposed of federal general common law, on which Pennoyer was based, after the Federal Rules replaced the common law writ system (and code pleading), during a transition from the 1st Restatement of Conflicts (based on territorial sovereignty) to the 2nd (based on relationship and contacts), and after realism displaced formalism (at least for a time).  

The real issue in Pennoyer, to modern eyes, should have been the question of notice.  Both the majority opinion and the dissent in Pennoyer alluded to this problem (which would be addressed much later in Mullane) but were distracted from it by the state sovereignty issue, which was salient to them.

Janet Alexander

At 10:34 AM 9/4/2006 -0700, Rosenthal, Lawrence wrote:

	To be sure, Pennoyer uses a concept of state sovereignty to support its holding, but from an originalist standpoint, that is pure dicta.  If we define an originalist approach to due process as one that uses historical understandings about what process was "due" to those facing a deprivation of life, liberty, or property as of 1868, then it is plain that a defendant had a right to be personally served in the forum state.  No state authorized long-arm service, or even service by mail, as a means of haling a defendant into court.  As Pennoyer (and the previous post's fourth paragraph) explain, it was thought that the requisite notice could be achieved only by personal service or the attachment/seizure of the defendant's property.  Pennoyer's approach to due process, it seems to me, is classically originalist.  It uses those rights that the common law had granted defendants as of 1868 in order to measure what process is due.  And if that is the right way to construe the Due Process Clause, then International Shoe is quite wrong, as is Brady, as I argued in an earlier post.

	Larry Rosenthal
	Chapman University School of Law

	________________________________

	From: Janet Alexander [mailto:jca at stanford.edu]
	Sent: Mon 9/4/2006 12:12 AM
	To: Rosenthal, Lawrence; conlawprof at lists.ucla.edu
	Subject: RE: The Fallacy of the "New Originalism"

	        I'm a bit bemused by the discussion of Pennoyer.  The legal principle that dictated the result in Pennoyer was not about due process; rather it was about the authority of states over persons and property.  Following the custom of the time, these "well-established principles of public law" were derived from international law.  Quoting from Pennoyer:

	        "The several States are not , it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution.  But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the principles of public [i.e., international] law . . . are applicable to them.  One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory.  . . . The other principle of public law . . . follows from the one mentioned; that is, no State can exercise direct jurisdiction or authority over persons or property without its territory.  [Citing Story on Conflicts.]  The several States are of equal dignity and authority, and the independence of one implies the exclusion of all others.  And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions."

	        This meant that a state court could only exercise jurisdiction over a non-resident if the non-resident was personally served within the state, or consented to the suit.  A state court could also exercise power over non-residents indirectly, if they owned property within the state, through its power over property within its borders.  In that case, the court's power extended only to the property within the state (in rem or quasi in rem) and not to the person (in personam).  This was a theory of state power, jurisdiction, and conflicts.  It drew no force from the due process clause.  The Court relied on copious authority decided before the 14th Amendment, and did not mention the 14th Amendment in reaching this conclusion.

	        Procedurally, one brought a person under the jurisdiction of the court by service of process.  If jurisdiction was based on property, the plaintiff had to get a writ of attachment.  Jurisdiction had to be established by one of these methods before the suit could proceed.  Neff did own property in Oregon, but the plaintiff had failed to bring that property within the jurisdiction of the court by attachment before proceeding on the suit.

	        The Court could have stopped there, resting its holding on the general law ("public law", not constitutional law), and the case would have been unimportant.  Instead, the Court made a very important due process holding -- and one that was very much more innovative than comments to the list have suggested.  Although the 14th Amendment had not been ratified when the suit was brought, the Court declared that the judgment of a court that lacked jurisdiction could be challenged as a violation of due process. 

	        "Since the adoption of the 14th Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of the parties over whom that court has no jurisdiction do not constitute due process of law."

	        The Court went on to say:

	        "Whatever difficulty may be experienced in giving those terms [due process of law] a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings.  They then mean a course of proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights.  To give such proceedings any validity, there must be a tribunal competent by its constitution -- that is, by the law of its creation -- to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance."

	        Pennoyer holds that due process requires that a court cannot enter a valid judgment unless it has subject matter jurisdiction and personal jurisdiction over the defendant.  The Court specifies personal service within the state and consent, as I read the case, because those are the methods that flow from the prevailing conception of state power, based on international law/conflicts principles.  Pennoyer's due process teaching about the validity of judgments rendered by courts without jurisdiction remains true today; but our notion of the limits of a state's power over out-of-staters has completely changed.  The world-view of Pennoyer was rejected in Shoe, not Pennoyer's conception of how the due process clause, not just the law of conflicts, constrains the power of state courts.  

	        Janet Alexander

	At 10:24 PM 9/3/2006 -0700, Rosenthal, Lawrence wrote:

	        Brady, a wholly nonoriginalist decision, forbids only one kind of  "innovatation" -- finding new ways to suppress exculpatory evidence.  That view may be nonoriginalist, but it is one most of us would accept.  Pennoyer v. Neff, in contrast, accurately reflected the original understanding of the Fourteenth Amendment's Due Process Clause if the rights guaranteed by the open-ended constitutional provisions are properly construed in light of the legal arrangements extant at the time of framing.  In 1868, it was thought that a defendant had a right not to be haled into court absent personal service in the forum state -- personal service (or attachment of real or personal property for in rem jurisdiction) was thought to be "due process."  Pennoyer, however, wholly forbids the kind of innovation embraced in International Shoe and its progeny.  The strange thing about an originalist view of due process, however, is that it would radically change the common law.  The common law had long been receptive to innovations thought to increase fairness -- as John Langbein has demonstrated, the development of the adversarial criminal trial was itself the result of a process of tremendous innovation, some of it statutory, but most of it done by judicial decisions not dissimilar in character to the subsequent innovation worked by Brady.  Due process had always been evolutionary until 1868, and there is no evidence that the framers intended to change that in 1868.  The originalist view of the due process clause that ties it to historically accepted practices in 1868 is accordingly unfaithful to the original meaning of due process.

	        Larry Rosenthal
	        Chapman University School of Law

	        ________________________________

	        Message: 13
	        Date: Sat, 02 Sep 2006 19:24:24 -0700
	        From: Bob Sheridan <bobsheridan at earthlink.net>
	        Subject: Re: The Fallacy of the "New Originalism"
	        To: Earl Maltz <emaltz at camden.rutgers.edu>
	        Cc: ConLaw Prof <conlawprof at lists.ucla.edu>
	        Message-ID: <44FA3CD8.9060806 at earthlink.net>
	        Content-Type: text/plain; charset="iso-8859-1"

	        The freedom to provide less discovery...leading to MORE accurate results.

	        I'll ask my criminal law defense colleagues what they think.

	        rs
	        sfls

	        Earl Maltz wrote:
	        > States would be free to experiment with less discovery, perhaps on the
	        > theory that it would ultimately lead to  more accurate results.  I'm
	        > not saying that I would agree with this view--simply that Brady
	        > forecloses some options ("innovations") that would otherwise be
	        > available.
	        >
	        > At 05:21 PM 9/2/2006 -0700, Lynne Henderson wrote:
	        >> what is "experimental" about discovery/disclosure?  *Brady * doesn't
	        >> require a one-way ratchet, so states  and feds remain free to require
	        >> defense disclosure of alibi, insanity, diminished capity, etc.
	        >> defenses while requiring the prosecution to disclose all of its
	        >> evidence.  And even then the defense has to   "request" it to trigger
	        >> *Brady.*
	        >> Lynne Henderson
	        >> On Sep 2, 2006, at 1:20 PM, Earl Maltz wrote:
	        >>
	        >>> Brady stifles innovation by preventing the federal and state
	        >>> governments from experimenting with other systems for dealing with
	        >>> the issue of disclosure.
	        >>>
	        >>> At 12:23 PM 9/2/2006 -0700, you wrote:
	        >>>> why does *Brady* "stifle innovation?"
	        >>>> Lynne Henderson
	        >>>> On Sep 2, 2006, at 11:19 AM, Earl Maltz wrote:
	        >>>>
	        >>>>> 1.  First, the question of whether the due process clause "stifles
	        >>>>> innovation" does not depend upon the question of whether one
	        >>>>> adopts a fixed
	        >

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	Janet Cooper Alexander
	Frederick I. Richman Professor of Law
	Stanford Law School
	Stanford CA 94301-8610
	650.723.2892

Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892