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Tuesday, April 30, 2013

Pennoyer = Lochner?

I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.

So, Pennoyer = Lochner? Discuss.

Posted by Howard Wasserman on April 30, 2013 at 03:08 PM in Civil Procedure, Howard Wasserman | Permalink


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Isn't part of Pennoyer still good law? I.e., tag jurisdiction is still sufficient, even if no longer necessary.

Posted by: Bruce Boyden | Apr 30, 2013 3:51:10 PM

But they don't need Pennoyer for tag, as they've got Burnham.

Posted by: anon | Apr 30, 2013 3:55:17 PM

And that's sort of the point--Pennoyer is important for learning the two original postulates (power over all within, no power over anything without) and how they inform the later doctrine. But as anon says, you would never cite Pennoyer if given a problem in which the defendant is tagged or in which the defendant is sued at home. Just like so many of the early Commerce Clause cases.

Posted by: Howard Wasserman | Apr 30, 2013 5:04:34 PM

I like the comparison to the early CC cases, Howard. Cooley might be another helpful comparator case.

I think it would be enormously helpful to give students a unified introduction to theories of sovereignty in the first semester of law school. I'm thinking of an opening unit on formalism and realism followed by units introducing students to personal jurisdiction, legislative jurisdiction, subject matter jurisdiction, Erie, and then a brief look at international law. All to set the stage for more detailed analysis in Civ Pro, Con Law, and Conflicts. It is so difficult for so many students to pick all of this up piecemeal.

Posted by: John Greabe | Apr 30, 2013 9:48:55 PM

For a case that is no longer good law, and stands for nothing anymore, it sure gets cited a lot (I just "KeyCite'd" it -- a lot of courts still cite it).

Posted by: Ken Klein | May 21, 2013 4:29:32 PM

Presumably for the proposition that it originally governed P/J on a power theory, but has been replaced by Int'l Shoe. And maybe judges do it because the case still has pride of place in the classroom--everyone starts with it.

Posted by: Howard Wasserman | May 24, 2013 7:23:50 AM

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