What If Pennoyer Was Right?
10 Pages Posted: 12 Jun 2017
Date Written: 2017
In Pennoyer Was Right, 125 Texas Law Review 1249 (2017), Professor Stephen Sachs argues for a return to Pennoyer v. Neff’s understanding of the Fourteenth Amendment Due Process Clause. In that understanding, the Clause imposes a federal requirement that judgments be supported by personal jurisdiction but does not create a federal standard for assessing when the exercise of personal jurisdiction is appropriate. The relevant standard comes instead from general law — primarily, customary international law (CIL).
In this response, I consider conceptual, practical, and normative implications of Sach’s argument. In particular, I argue that Sach’s view of the Due Process Clause bears on the debate in U.S. Foreign Relations Law over the domestic legal status of CIL. Sach’s understanding of the Clause provides another example of how CIL might play a role in domestic law under the revisionist view in that debate.
Keywords: Pennoyer, Foreign Affairs, Foreign Relations, Prescriptive Jurisdiction, Customary International Law, CIL, International Law, Modern View, Revisionist
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