The Supreme Court, Service of Process, and Legal History: Part 3 of a Letters Blogatory Polemic

This is the third and final post in my series on service of process and legal history. I encourage you to read the first and second posts!

Why am I writing about ancient methods of service of process, and Supreme Court references to them? Here is my basic idea.

In 2017, I think it is time to disentangle the idea of service of process from the idea of personal jurisdiction. At least for us (I mean us Americans, or maybe us common law folks, in modern times), the rationale for service of process is to provide notice of the action, and the rationale for personal jurisdiction is to ensure that defendant’s contacts with the forum are sufficient to make the forum’s exercise of jurisdiction over him consistent with due process. There’s no necessary connection between these ideas. Yet courts continue to say that service of the summons is a prerequisite to jurisdiction, and in the background is a mistaken idea about legal history—that the reason service of process is closely related to jurisdiction is that in the past, the limits of a court’s jurisdiction were defined by the limits of its arrest power, and that service of process in the past turned on arrest, too. Here’s a quote from just last month, in Lowe v. United States (E.D.N.C. 2017): “Proper service of process (or waiver of service under Rule 4(d)) is necessary for the court to exercise personal jurisdiction over a defendant. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).” This is just illustrative—there are a ton of similar statements.

Now, I don’t think that in the civil law world folks conceive of service of process in this way. For us, there’s no objection to any layman serving process, because it’s just a notice. For civilians, only agents of the state can serve process, which demonstrates, I think, that for them service of process has more weight as a sovereign act. We have the Hague Service Convention and some rules of private international law to help bridge this gap.

I’ll end with a word of explanation about my lack of credentials as a legal historian, which are legion. I can imagine readers who know something about legal history objecting that regurgitating a little bit of Blackstone is not really doing legal history. That’s absolutely right, and a fair criticism. And it should go without saying that although I took some legal history in school I am not a legal historian. But the kind of potted legal history I did is pretty much what most judges do when they do any history at all. Most lawyers and judges, myself included, aren’t equipped to read the plea rolls or the year books from long ago without expert help. My point is that I think the legal history the Supreme Court has done fails even on its own terms, which is why I think it’s okay to pretend to do legal history for purposes of these posts.

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