Pennoyer Was Right

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn\u27t a matter of federal law, but of general law -- that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn\u27t be recognized elsewhere, in other states or in federal courts -- any more than if they\u27d tried to redraw their borders. As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law. Reviving Pennoyerwould make modern doctrine make more sense. As general-law principles, not constitutional decrees, jurisdictional doctrines could be adjusted by international treaty—or overridden through Congress’s enumerated powers. The Due Process Clause gives these rules teeth without determining their content, leaving space for federal rules to govern our federal system. In the meantime, courts facing jurisdictional questions should avoid pitched battles between “sovereignty” and “liberty,” looking instead to current conventions of general and international law. Pennoyer’s reasoning can be right without International Shoe’s outcome being wrong; international law and American practice might just be different now than they were in 1878 or 1945. But if not, at least we’ll be looking in the right place. General law may not be much, but it’s something: the conventional settlement of the problems of political authority at the root of any theory of personal jurisdiction. Recovering those conventions is not only useful for its own sake, but a step toward appreciating our deep dependence on shared traditions of general law

The Law and Morals of Interpretation

This report is a hermeneutic analytical study of a practical pedagogical situation. For three occasions I observed my own practice as a dance teacher and how a moment, choreographic approach in the governing documents for upper secondary school GY11 was executed in a group of dance students. The part is formulated in the course objectives for the courses on the arts program under the topic Dansgestaltning with focus on choreographic approach. The study is based on a socio-cultural thinking but also takes into account the prevailing gender theories and focuses on how the process of formulation level, through the transformation level is portrayed in the realization level of the dance regarding choreographic approach. The study illustrates educational research from both a dance perspective and a school development perspective. The intention of this study was to raise the awareness of how a pedagogical situation was designed and what is realized in the dance studio. Some pedagogical models are described as useful in raising awareness of the process and the realization of the aspect of moment in a dance studio. The methodology used for the study was participant observation and focus conversations. The results are reported in a discussion on a larger awareness of my own practice, and the benefits it can bring to learning, dancing and school development

Supreme Court as Superweapon: A Response to Epps & Sitaraman

Is the Supreme Court\u27s legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court\u27s legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle is too powerful a weapon to leave lying around in a democracy; we should start thinking about disarmament

Originalism Without Text

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past

The Forum Selection Defense

The central goal of this thesis is creating and testing technology toproduce embodied interaction experiences. Embodied interaction is thesense that we inhabit a digital space with our minds operating on it asif it were our physical bodies, without conscious thought, but as naturalas reaching out with your ngers and touching the object in front of you.Traditional interaction techniques such as keyboard and mouse get in theway of achieving embodiment. In this thesis, we have created an embodiedperspective of virtual three-dimensional objects oating in front of a user.Users can see the object from a rst-person perspective without a headsupdisplay and can change the perspective of the object by shifting theirpoint of view. The technology and aordances to make this possible in aunobtrusive, practical and ecient way is the subject of this thesis.Using a depth sensor, Microsoft's Kinect [7], we track the user's positionin front of a screen in real-time, thus making it possible to changethe perspectives seen by each of the user's eyes to t their real point ofview, in order to achieve a 3D embodied interaction outside the screen.We combined the rst-person perspective into an embodied sculptingproject that includes a wireless haptic glove to allow the user to feel whentouching the model and a small one-hand remote controller used to rotatethe object around as the user desires when pressing its single button.We have achieved what we call Embodied Perspective, which involves anoutside-screen stereoscopic visualization, which reacts to body interactionas if the visualization was really where the user perceives it, thanks to thedata from the depth sensor. This method does not block the user's viewof their own body, but ts and matches their brain's perception.When applied to virtual sculpting (embodied sculpting), it gives theuser the ability to feel and understand much better their actions; wherethey are touching/sculpting and how they should move to reach wherethey want, since the movements are the same one would perform withtheir body in a real-world sculpting situation.A further study of the viability of this method, not only on singleperson interaction but on group visualization of a single user perspective,is discussed and proposed

The Uneasy Case for the Affordable Care Act

The constitutionality of the Affordable Care Act is sometimes said to be an easy question, with the Act\u27s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won\u27t be easy, and the arguments against it sound in law rather than politics. Written to accompany and respond to Erwin Chemerinsky\u27s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations -- walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones. Because the mandate\u27s opponents can find some support in existing doctrines, a decision striking down the mandate needn\u27t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress\u27s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right -- reasons having more to do with constitutional theory than political preference

The “Constitution in Exile” as a Problem for Legal Theory

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible? This objection is overblown. Legal rules don’t always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. (We can have social agreement that we’re bound by the Internal Revenue Code, even though we don’t all agree on—let alone remember—everything the Code requires.) So long as we share certain conventions that lead to unconventional conclusions, out-of-the-mainstream theorists can accurately claim to describe our own legal system rather than a foreign or invented one that they hope to impose. The theorists’ job is to identify shared premises and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions. In any case, if this kind of objection did have force, it wouldn’t be a problem just for out-of-the- mainstream theories like originalism. Virtually no modern legal theory accepts every change in constitutional practice as actually changing the Constitution. Because history moves at its own pace, any theory with meaningful conditions for legal change will often be violated in practice. In other words, any Constitution worth its salt will spend a good bit of time in exile

Comment, Saving Toby: Extortion, Blackmail, and the Right to Destroy

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website\u27s readers sent $50,000 to save his life. Though Toby\u27s owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one\u27s own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits. This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others\u27 secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners\u27 legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby\u27s sad fate. (This piece has been awarded Yale\u27s Jewell Prize for the best second-year student contribution to a Law School journal other than the Yale Law Journa