Jurisdiction

• Pages: 101-137
• Author: Samuel Issacharoff

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Chapter 5

JURISDICTION

Ultimately, the aim of any p rocedural system is the resolution

of disputes. As we shall see in Chapter 7, the resolution of disputes

requires finali ty in the litigation process and the a bility to enforce

judgments so as to provide the disputants with closure. Our attention

thus far has been on the mechanisms by which parties engage the

court system and on the expanding definition of who are proper

parties to a dispute. Thus, we may think of the F ederal Rules as

comprising the nuts and bolts of the litigation process, providing the

requirements for a complaint, instructions for service of process, and

the many rules of discovery, class action, summary judgment,

joinder, default, and so on, all precisely detailed and constantly

reviewed and revised to more closely conform to the chang ing ideals

of the American procedural system.

At the end of the day, however, for any dispute that is litigated

to conclusion, there must be a judgment and the capacity to enforce

the court’s decrees. That leads inescapably to the question of power.

In order to render a meaningful judgment in a case, courts must have

the ability to command parties to app ear before them and to enf orce

their d ecrees. Since courts are famously endowed with neither the

purse nor the sword, the source of their power must be derived

externally. The ability to en force a judicial decree turns ultimately

on the authority that judges can invoke to coerce recalcitrant parties

to appear before them and abide by their commands, as the need may

arise. That authority is termed the jurisdiction of the court, a concept

that is defined by the govern mental authority on whose behalf the

court ultimately acts.

The Federal Rules of Civ il Procedure are themselves silent on

the source of a court’s jurisdiction. Rule 82 expressly provides that

the Rules are not intended to define, let alone alter, the jurisdictional

authority of federal courts. So, the source of a court’s power must be

found elsewhere and must answer a fundamental question: over

whom may courts exercise their autho rity to hear and adjudicate a

lawsuit? As with much of procedure, American law on the

jurisdictional authority for the enforcement of a court’s decree draws

from its British antecedents. As is also true of much American law

that builds on the British common law, the prior rules tend to be

instructive in both their application and their limitations.

In Britain of old, all co urts ultimately derived th eir power from

the Crown. The King’s courts could exercise their dominion either

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JURISDICTION

Ch. 5

upon the citizenry, who were the Crown’s subjects, or upon the land

holdings within the kingdom, which were also deemed to be subject

to the power of the ruling monarch. Jurisdiction that required a

decree over a person was termed in personam, while jurisdiction to

settle title to re al property was termed in rem. In either case, the

power of the court to have its decrees enforced drew from the

sovereign power of the Crown over both persons and landholdings in

the kingdom. The courts served, in effect, as the agents of the Crown,

acting to resolve disputes in the name of the kingdom through powers

delegated by the Crown or by Parliament.

The key to such early theories of jurisdiction was the idea of

undisputed sovereignty. The concept of sovereignty is that of a

supreme legal authority, conceived to encomp ass a particular

geographic area, such that, for example, the King of England was

sovereign over one domain, England, and the King of France was

sovereign over another, France, and the two spheres of influence

could not, by definition, overlap. Within defined territorial

boundaries, all law was the responsibility of the sovereign, and

judgment on disputes was one essential legal function. As a

necessary result of the delegated source of their authority, the reach

of the English courts could not exceed that of the sovereign. Since the

sovereign’s authority w as limited geograph ically, geo graphy

similarly limited the jurisdiction of E nglish courts. If a person were

in France, English courts could not control him, but if that person

entered England, he was accountable to its courts.

This territorial model o f jurisdiction was pe rfectly adequate for

a premodern society such as medieval En gland. On an island nation

with a single sovereign, and moreover in a society in which citizens

lived in the same small communities their entire lives and rarely, if

ever, traveled, it was usually quite clear which courts had

jurisdiction over which people. Since medieval society defined

citizens by status in relation to land, in conditions ranging from serf

to lord, a legal order that presumed a single sovereign power made

perfect sense. Even the rudimentary forms of commerce that did exist

were mostly small and local, such that a territorial basis f or judicial

authority would provoke little confu sion about who was accountable

to whom. Perhaps even more central in a me dieval world in which

status entailed obligations, the power of the Crown’s courts was an

extension of the duty of the Crown to provide for the security and

welfare of the population.

The development of American society conspired to undermine

the neat application of the inherited territorial models of jurisdiction.

The first development was in place eve n at the time of the founding:

the United States, going back even to the colonial period, never

operated under a single sovereign. While the Crown reigned supreme

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JURISDICTION

103

until the Revolution, local authority was divided between the various

colonies. Following the Revo lution, both during the Articles of

Confederation and ultimately under the modern American state, the

federal government was expressly granted power over certain areas

(most notably interstate commerce), while each American state

retained sovereignty over most affairs occurring within its borders.

Consequently, following the English territorial model of jurisdiction,

the courts of the various American govern ments were to attend only

to the issues that were within their power to control. But th e fact of

multiple sovereigns created a problem of potentially overlapping

jurisdiction over commerce or over individuals moving from one state

to another. Although a general sense of cooperation between the

states w as facilitated by the Full Faith and Credit Clause,

1

w hich

commanded state courts to respect each others’ judgments, the idea

persisted that it was an unacceptable abuse of power for one state’s

courts to attempt to exercise its jurisdiction beyond that state’s

border.

Two other features of developing American socie ty further

compromised a narrow territorial basis for jurisdiction. First, the

increased mobility of the population and the co nstitutional

commitment to freedom of travel among the states further eroded the

clear hierarchical relations between subjects and sovereign. This

trend became all the more apparent as changes in technology allowed

for routine travel and even commuting between the territories of the

erstwhile sovereigns. Second, large corporations came to increasingly

dominate commerce. Thei r size provided them with the ability to

contract or commit harms across great distances w ithout any

corporeal presence in jurisdictions where they might need to be held

judicially accountable. In recent years, their reach has been extended

by new forms of communication, most notably the emergence of

electronic commerce.

I. Limits of Territorial Jurisdiction

The Supreme Court’s first great confrontation with questions of

jurisdiction came in the landmark case of Pennoyer v. Neff

2

in 1877.

At that time, there were already 38 state governments and a federal

government, court systems accountable to all of them, and a booming,

dynamic nation that had spread its territories to the Pacific. The

facts of the case advertised how far the country had come from the

simple a ssumption of unified territorial sovereignty under one

reigning monarch.

1

U.S. CONST. art. IV, § 1, cl. 1.

2

95 U.S. 714 (1877).