“[A] subject of England, or France, or Russia, having a controversy with one of our own citizens, may be summoned from the other end of the globe to obey our process, and submit to the judgment of our courts.”1 So observed Justice Joseph Story, four decades before the Fourteenth Amendment’s ratification. Since then, the Supreme Court has developed a robust but “messy”2 doctrine limiting state court personal jurisdiction under the auspices of Fourteenth Amendment due process.3 But the Supreme Court has not extended those limits to the personal jurisdiction of the federal courts,4 which is subject only to the Fifth Amendment. Recently, in Douglass v. Nippon Yusen Kabushiki Kaisha,5 the Fifth Circuit held that the Fifth Amendment personal jurisdiction test requires the same “minimum contacts” with the United States that the Fourteenth Amendment requires with a state.6 In grafting Fourteenth Amendment precedents onto the Fifth Amendment, the court elided the twin Due Process Clauses. This move improperly constitutionalizes the general law, hemming in the sovereign power of the United States to redress wrongs committed against Americans abroad.
On June 17, 2017, two ships collided in Japanese territorial waters.7 One was the ACX Crystal, a 730-foot container ship chartered by Japanese global logistics company Nippon Yusen Kabushiki Kaisha (NYK); the other was the U.S.S. Fitzgerald, a U.S. Navy destroyer.8 The ACX Crystal’s bow tore through the Fitzgerald’s hull, flooding several compartments on board.9 Seven American sailors perished.10 At least forty more suffered injuries.11 NYK vessels made port calls in the United States about 1500 times annually from 2017 to 2019,12 and NYK generates about $1.5 billion in annual revenue in North America.13 NYK is no stranger to U.S. federal courts either: since 1993, NYK has brought nearly eighty actions in federal court14 and has occasionally defended itself from claims in American courts.15
The injured sailors and personal representatives of the deceased sailors brought tort actions under the Death on the High Seas Act16 against NYK in the Eastern District of Louisiana.17 The plaintiffs asserted personal jurisdiction under Rule 4(k)(2),18 arguing that NYK was amenable to general “national contacts” jurisdiction given its “systematic and continuous contacts with the United States as a whole.”19 NYK moved to dismiss for lack of personal jurisdiction.20 Although Rule 4(k)(2) implicates the Fifth Amendment, the district court applied the Fourteenth Amendment’s personal jurisdiction standard and dismissed the suits.21
A panel of the Fifth Circuit affirmed.22 The panel considered itself bound by the circuit’s precedent in Patterson v. Aker Solutions Inc.,23 which applied Daimler AG v. Bauman24 — a Fourteenth Amendment precedent — to resolve a jurisdictional challenge under the Fifth Amendment.25 The Fifth Circuit then voted to take the case en banc.26
Sitting en banc, the Fifth Circuit affirmed.27 Writing for the majority, Judge Jones28 held that the “Fifth Amendment due process test for personal jurisdiction mirrors the Fourteenth Amendment test,” requiring “the same ‘minimum contacts’ with the United States as the Fourteenth Amendment requires with a state.”29 In so holding, the court deferred to its own and sister circuits’ precedents.30 On the merits, the court noted that the two amendments’ Due Process Clauses “use the same language and serve the same purpose.”31 The court reasoned that the plaintiffs’ emphasis on the Fourteenth Amendment’s concern with federalism was “myopic” because any federalism concerns about state sovereignty derive from the “individual liberty interest” protected by the Fourteenth Amendment.32 Regardless, the court noted that federalism is irrelevant because it matters only for specific jurisdiction, not for general “at-home” jurisdiction, which was at issue here.33 The court also rejected the plaintiffs’ concern that so holding would rob Rule 4(k)(2) of many extraterritorial applications, rendering it a “nullity”: because the Fifth Amendment’s limit on personal jurisdiction is independent of Rule 4(k)(2), interpreting its requirements based on its interaction with the Rule “would let the procedural tail wag the constitutional dog.”34 Applying the Fourteenth Amendment standard to the facts here, the court held that NYK was not amenable to general jurisdiction.35 “[S]uch sweeping jurisdiction” could reach NYK only if its U.S. operations rendered it at home here.36 Although NYK’s contacts with the United States were substantial, they were “a minor portion of its” operations.37
Judge Ho concurred.38 Appealing to the doctrine of incorporation, he noted that “individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.”39 Thus, it would be anomalous to apply different standards of due process to the states and federal government for personal jurisdiction, but the same standards for all other constitutional rights.40
Judge Elrod dissented.41 She argued that because the Fifth Amendment “has its own text, history, and structural implications,” its Due Process Clause “need not parrot what the Supreme Court has said about the Fourteenth’s.”42 And in the absence of binding Supreme Court precedent, Judge Elrod would have applied the original meaning of the Fifth Amendment.43 Early cases contemplating the personal jurisdiction of the federal courts glaringly failed to mention any Fifth Amendment bar.44 Further, the Fourteenth Amendment embodies “principles of interstate federalism” that are “irrelevant” to the Fifth Amendment.45 And the meaning of “due process of law” might have “undergone linguistic drift” between when the First Congress proposed the Fifth Amendment in 1789 and when “the 39th Congress proposed the Fourteenth Amendment in 1866.”46 Thus, Judge Elrod would have allowed the plaintiffs’ suit to proceed.47 To do otherwise would “gut Rule 4(k)(2) of virtually all of its intended applications,” decimating Congress’s power to “right the most grievous wrongs committed against Americans abroad.”48
Judge Higginson also dissented.49 In his view, “cross-incorporat[ing]” Fourteenth Amendment due process into the Fifth Amendment would be inapt in this situation,50 given the Supreme Court’s “sovereign state–centered comity approach,” including the presumption against extraterritoriality.51 Further, Judge Higginson chided the majority for implicitly foreclosing federal courts from hearing a damages suit by the United States for the sunken destroyer.52
Judge Oldham dissented as well.53 He would have applied the original public meaning of the Fifth Amendment because the Supreme Court has not answered whether it “imposes the same restrictions” on the personal jurisdiction of federal courts as the Fourteenth does on that of state courts.54 That original meaning “did not impose any” such limits, leaving it “to Congress to impose such limits by statute.”55
As the dissenters convincingly argued, the Douglass majority misinterpreted the Fifth Amendment’s Due Process Clause.56 Although the Fourteenth Amendment sets metes and bounds around state long-arm statutes,57 the Fifth Amendment does not cabin the territorial jurisdiction of the federal courts.58 But the court also overlooked how general law illuminates the twin clauses’ distinct relationships with personal jurisdiction: the Fourteenth Amendment brought personal jurisdiction into the rendering court, while the Fifth never did. By treating the clauses identically, the Fifth Circuit improperly constitutionalized a question of general law, curbing the sovereign power of the United States to redress wrongs committed against Americans abroad.
General law refers to the background legal “substratum”59 beyond the “control of any single jurisdiction.”60 It reflects the principles and customs of multiple jurisdictions, including U.S. states and foreign countries, across different substantive areas of common law.61 In the era of Swift v. Tyson,62 state and federal courts “exercised independent judgment” about the general law’s content.63 Since Erie Railroad Co. v. Tompkins,64 federal courts must defer to state high courts on questions of common law,65 seemingly bringing the general law into disrepute.66 But reports of the general law’s death have been greatly exaggerated: it continues to persist throughout federal law,67 and it governs state border disputes.68 And general law finishes the incomplete picture in Douglass, explaining the different effects of the twin Due Process Clauses on personal jurisdiction and revealing an oversight in the court’s reasoning.
Before the Fourteenth Amendment, defendants challenged personal jurisdiction at the recognition stage — when the plaintiff tried to enforce the judgment in a second forum — rather than when the original court rendered the judgment.69 When the recognizing court was federal, it would cast a gimlet eye on a state court’s exercise of jurisdiction, recognizing the judgment only if it complied with the federal court’s own view of the general law.70 These “well-established rules of international law”71 applied to all courts as “rules of decision.”72 States could not abrogate these general-law rules: although under the Rules of Decision Act73 federal courts must apply state statutes “in cases where they apply,”74 they did not apply those that exceeded the state’s “legislative jurisdiction.”75 Then the Fourteenth Amendment introduced a constitutional defense against exorbitant personal jurisdiction,76 supplying federal-question teeth to the general law’s rules.77 Defendants could now raise challenges to personal jurisdiction in the rendering court, eliminating the need for skepticism at the recognition stage later.
By contrast, federal court judgments never invited gimlet eyes in federal court, and the Fifth Amendment imposed no independent bar to jurisdiction.78 Given congressional silence, federal courts would decline jurisdiction contrary to general “principles of public law.”79 Against this backdrop, courts would hesitate to infer “usurpation[s] of foreign sovereignty”80 unless Congress spoke clearly.81 But if Congress directed them to “summon” a defendant “from the other end of the globe,”82 federal courts would be bound “to obey and administer”83 Congress’s mandate, even if exercising jurisdiction would offend “the usages and received obligations of the civilized world.”84 (An “act of congress”85 was probably the only authority that allowed federal courts to exceed the background limits of general law, “which federal statutes would always outrank.”86) Although such judgments would be valid and enforceable in the United States, they would be subject to collateral attack at the recognition stage in foreign courts if plaintiffs tried to execute the judgment by attaching defendants’ foreign property.87
These differences make sense given the constitutional concerns animating the twin clauses. Yes, both clauses ensure procedural fairness to defendants, the hallmarks of which are notice and an opportunity to be heard.88 But in the personal jurisdiction context, the Fourteenth Amendment is also an “instrument of interstate federalism,”89 delimiting each state’s territorial sovereignty vis-à-vis other states.90 Thus, jurisdiction is primarily about “authority rather than fairness.”91 In the Fifth Amendment context, though, federalism is irrelevant92 because the sovereign authority of the United States is at issue.93 And federal courts must listen to Congress when it abrogates general law, even though they may be skeptical of states’ legislative jurisdiction to do the same. Ordering the United States’s international relations with other sovereigns is a congressional and presidential prerogative;94 thus, federalism concerns should not stop Congress from holding foreign tortfeasors liable for wrongs committed against Americans abroad.95
Here, Congress has authorized jurisdiction over NYK via Rule 4(k)(2)96 and the Death on the High Seas Act,97 abrogating general law. Accordingly, NYK’s jurisdictional defense should have been raised as a collateral attack at the recognition stage in Japan, not as a due process challenge in the Eastern District of Louisiana.98 Then, whether Douglass could enforce a federal judgment against NYK’s property in Japanese courts would be a question answerable by Japanese law (which may refer to general law or treaties),99 not by the Fifth Amendment.100 Japanese courts may look upon such a judgment with a gimlet eye.101 But that possibility should not stop U.S. courts from applying U.S. law, rendering and executing U.S. judgments, or attaching U.S. property — and neither should the Fifth Amendment. The Death on the High Seas Act and Rule 4(k)(2) supply the only relevant personal jurisdiction limit here: because Congress has directed federal courts to “summon” foreign maritime tortfeasors “from the other end of the globe,”102 the district court must “proceed upon the law”103 and hale NYK into court.
General law imposes a ceiling on personal jurisdiction that Congress may abrogate by statute or treaty. Douglass both lowers and constitutionalizes that ceiling in the Fifth Amendment. The consequence is a profound dilution of the United States’s sovereign power to provide extraterritorial causes of action to its citizens. After Douglass, U.S. Navy sailors killed on the high seas by foreign tortfeasors, in violation of a federal statute, will be unable to vindicate their rights in federal courts. Beyond neutering Rule 4(k)(2) and the Death on the High Seas Act, the Douglass court’s holding also cramps the reach of antitorture and antiterrorism statutes,104 consigning American victims injured abroad to fend for themselves in foreign courts.105 Neither Supreme Court precedent nor the Fifth Amendment requires that result.