Fuld Preview: Professor Briefs
March 26, 2025
Next week, the Supreme Court will hear oral argument in Fuld v. Palestinian Liberation Organization. Fuld raises two interrelated issues: (1) Does the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) provide consent-based personal jurisdiction consistent with Mallory v. Norfolk Southern Railway Co.?; and (2) What are the differences (if any) between the tests for personal jurisdiction under the Fifth and Fourteenth Amendments?
Fuld features two important professor amicus briefs. First, Scholars of Civil Procedure and Conflict of Laws (Patrick Borchers, Jeffrey Dobbins, William Dodge, Aaron Simowitz, Symeon Symeonides, and James Nafziger) argue that the PSJVTA satisfies the Mallory test. (For an alternative take on that question, see here.) The Scholars explain:
This Court reaffirmed in Mallory v. Norfolk Southern Railway Co. that “express or implied consent” remains a constitutionally sound basis for establishing personal jurisdiction over a defendant, and that consent may be given “by word or deed.” 600 U.S. 122, 138 (2023) (plurality) (emphasis added); see also id. at 153 (Alito, J., concurring in part and concurring in the judgment); see generally Robin J. Effron & Aaron D. Simowitz, The Long Arm of Consent, 80 N.Y.U. Ann. Surv. Am. L. 179 (2024). In the decision below, the Second Circuit nonetheless held that the conduct deemed to constitute consent under the PSJVTA “cannot support a fair and reasonable inference of the defendants’ voluntary agreement to proceed in a federal forum,” and “lack[s] any of the indicia of valid consent previously recognized in the case law.” Pet. App. 26a.
In so holding, the Second Circuit effectively concluded that, although a party may validly consent to personal jurisdiction in a given forum by purchasing a cruise ship ticket with a forum-selection clause tucked into three pages of fine print on the ticket’s back, Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), engaging in discovery abuses, Ins. Corp. of Ireland Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), or mistakenly entering a general appearance, York v. Texas, 137 U.S. 15 (1890), the same result does not obtain for sophisticated, well-counseled entities fully apprised of the consequences of their actions. As a result, the decision below gives more protection to defendants that the elected branches concluded should be suable under the Anti-Terrorism Act than it does to users of Google products who are required to adjudicate their disputes in California, regardless of where their disputes arose. Such a result cannot be reconciled with this Court’s precedents.
To that end, the Court does not need to analyze how the Fifth and Fourteenth Amendments’ Due Process Clauses might impose different limitations on the exercise of personal jurisdiction; instead, Mallory and basic, already settled propositions about the Fifth Amendment control the outcome of this case. Mallory sets the standard for personal jurisdiction under the Fourteenth Amendment, and all agree that the Fifth Amendment is at least as generous to plaintiffs as the Fourteenth Amendment in that context. Therefore, because the PSJVTA satisfies Mallory, assertions of personal jurisdiction under the Act must satisfy the Fifth Amendment. The Court need go no further in reversing the decision below.
Separately, the Court has every reason to defer to the decision of the elected branches in matters implicating foreign affairs and the regulation of terrorism, in which judicial deference is at its zenith, especially where the action of the elected branches came in direct response to prior judicial decisions in this case. The Second Circuit’s jurisdictional decision undercut Congress’s authority in this area and, in doing so, ignored law that already polices Congress’s power to regulate international terrorism. In this case, separation of powers principles warrant heightened deference to the elected branches, not the heightened skepticism with which the Second Circuit viewed the PSJVTA.
Second, Professor Stephen Sachs of Harvard Law School takes up the Fifth Amendment. He writes:
The temptation in this case is to treat the United States as if it were simply one big state. The State of Nevada, even were it the size of the entire United States, still could not call to answer every defendant who attacked a Nevadan abroad. See Walden v. Fiore, 571 U.S. 277, 288–89 (2014). As this limit is enforced under the Fourteenth Amendment’s Due Process Clause, and as the Fifth Amendment has a Due Process Clause too, it is tempting to conclude that the United States labors under precisely the same constraint, with the only difference being one of size.
This temptation is to be resisted, for the United States is not simply one big state. True, neither the United States nor any state may deprive a person of life, liberty, or property without due process of law. But the United States and a single state differ greatly with respect to the external limits on their sovereign authority—that is, with respect to the principles the Due Process Clauses enforce and for which those Clauses have “become a refuge.” Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2050 (2023) (Alito, J., concurring in part and concurring in the judgment). State laws are restricted to each state’s sphere of authority, serving as “rules of decision” only “in cases where they apply.” 28 U.S.C. § 1652 (2018). Yet Acts of Congress can be “the supreme Law of the Land,” U.S. Const. art. VI, cl. 2, overriding contrary doctrines and extending beyond our borders to protect Americans abroad.
This Court should not bind the United States with the fetters worn by individual states simply because the latter have become so familiar—especially when neither the original Constitution nor this Court’s precedents require it. As Justice Story recognized, Congress could have “a subject of England, or France, or Russia * * * summoned from the other end of the globe to obey our process, and submit to the judgment of our courts”; such a statute might violate “principles of public law, public convenience, and immutable justice,” but a federal court “would certainly be bound to follow it, and proceed upon the law.” Picquet v. Swan, 19 F. Cas. 609, 613–15 (CCD Mass 1828) (No. 11,134). If Congress had such powers at the Founding, it never lost them since. So long as Congress’s power to call foreigners to answer is at least as broad as its power to regulate their conduct abroad, the respondents here were obliged to appear in the district court, and the plaintiffs’ claims must be allowed to proceed.
1. As an original matter, the Fifth Amendment did not place territorial restrictions on Congress’s powers to call defendants to answer. Rules of personal jurisdiction predated the Due Process Clause; they were rules of general and international law, which states might override within their own courts but which would be enforced by the courts of other states, as well as by federal courts in diversity jurisdiction or under the Full Faith and Credit Clause. To the extent the issue arose in the early Republic, there was no question but that Congress could supplant these rules with rules of its own design, just as it could use other enumerated powers to supplant other rules of international law. See generally Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020). After the Civil War, the Fourteenth Amendment enabled the better enforcement of jurisdictional limits on state courts via federal-question review: to deprive someone of life, liberty, or property through a jurisdictionless judgment was to deprive them of these things without due process of law. See Pennoyer v. Neff, 95 U.S. 714, 732–33 (1878); see generally Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017). That had no impact on federal courts, however, which already had to comply with the rules as set out by Congress and as understood by this Court.
2. Congress has not lost these powers since. While the era of International Shoe Co. v. Washington, 326 U.S. 310 (1945), identified various “territorial limitations on the power of the respective States,” Hanson v. Denckla, 357 U.S. 235, 251 (1958), this Court has never reflected those limitations back onto the United States as a whole. Instead, different principles of sovereign authority continue to apply via due process to the federal government and to the states. Nor would reversing this approach be harmless. Pretending that the United States is simply one big state for personal jurisdiction purposes would limit the federal government in negotiating treaties and conducting foreign relations. It would also interfere with federal laws on antitrust, securities regulation, bankruptcy, and child custody. The Court should not pretermit the political branches’ consideration of these issues by deciding the case on a mistaken due process claim.
3. To decide the case before it, this Court need not determine the full scope of Congress’s jurisdictional powers. The respondents here were served with process within the United States in a manner explicitly authorized by statute, under clear Article I authority, with subsequent enactments making it as clear as Congress knows how that such service is to be held effective. The Court may uphold such service while leaving open the outer limits of what the Fifth Amendment might permit, just as it has for the last two hundred years. It also need not take any view of the parties’ complex arguments about formal and informal consent to jurisdiction, under either the Fourteenth Amendment or the Fifth. But by the same token, the Court should not rule out the possibility that Justice Story was correct. As the Second Circuit’s judgment can only be right if Justice Story was wrong, the Court should reverse that judgment and remand.
Will the Court be persuaded by either brief? Only time will tell.