Fuld Preview: AALS Panel on Mallory and More
March 25, 2025
Next week, the Supreme Court will hear oral argument in Fuld v. Palestinian Liberation Organization. TLB’s prior coverage of Fuld can be found here.
Among the key issues in Fuld is whether the Promoting Security and Justice for Victims of Terrorism Act’s scheme for consent-based personal jurisdiction is constitutional. In 2023, the Supreme Court decided the consent-based jurisdiction case Mallory v. Norfolk Southern Railway Co. To provide context for Fuld, this post reprises a panel at January’s AALS Annual Meeting from the Conflict of Laws Section on the Supreme Court’s decision in Mallory and related topics.
Professor Robin Effron, Brooklyn Law School
Consent is a “traditional” basis of personal jurisdiction. As such, courts have mostly waved away challenges to the constitutionality of exercising jurisdiction when there is evidence of “valid” consent. But scratch the surface, and one will find that it is hard to nail down a single category of “word or deed” that constitutes “consent” to jurisdiction. The uses and meaning of jurisdictional consent have evolved considerably over the years. Despite this fact, courts still discuss “consent” as if it has a fixed and unified meaning.
A historical understanding of “consent” in personal jurisdiction law is crucial for addressing current legal challenges to consent to the jurisdiction of the forum, regardless of one’s position on originalism or the role of “history and tradition” in elucidating constitutional concepts. Until the renewed interest in corporate registration statutes that followed the Supreme Court’s constriction of general jurisdiction in Daimler, most courts more or less assumed that consent to jurisdiction stood on solid constitutional ground, thus rendering a due process inquiry unnecessary. The justification for such doctrinal neglect was that consent enjoyed special status as a “traditional basis” of jurisdiction. The early uses of consent to jurisdiction, blessed in passing in Pennoyer v. Neff (1878), meant that in all but the most unusual situations, consent to jurisdiction could go unquestioned. The problem with this approach is that the meaning and practice of consent to jurisdiction at the time of Pennoyer and the ratification of the Fourteenth Amendment differed in important ways from the paradigm examples of jurisdictional consent today.
The evolution of consent-based personal jurisdiction in American law reveals a complex transformation from state-controlled submission to private party agreements. In the pre-Pennoyer era, consent was not a unified concept but rather encompassed various forms of voluntary submission to court authority. Later, states actively used implied consent statutes to reach out-of-state defendants, particularly through nonresident motor vehicle statutes and corporate registration requirements. Courts generally upheld these measures as valid exercises of state power, with landmark cases like Lafayette Insurance Co. v. French (1855) and Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917) endorsing implied consent.
During this early period, private party agreements about jurisdiction took a back seat to state control. Forum selection agreements existed but were generally unenforceable for jurisdictional purposes. Courts explicitly rejected ex ante agreements to establish jurisdiction, viewing them as improper attempts to “oust” courts of their rightful authority. Forum selection clauses found limited use in admiralty cases and for venue purposes, but they were not seen as legitimate means of creating jurisdiction.
The concept of consent manifested primarily in two forms: submission and waiver. Submission involved accepting the forum state’s authority through affirmative acts, typically during litigation rather than beforehand. States controlled the circumstances under which submission was permissible, and actions like filing a lawsuit or appearing in court constituted submission. Waiver, on the other hand, involved not objecting to personal jurisdiction when appearing in a lawsuit.
The advent of International Shoe in 1945 and the minimum contacts era brought significant changes to jurisdictional consent. Implied consent statutes became less prominent but did not disappear entirely. Given the broad reach of general jurisdiction for the first six decades after International Shoe, there was little need for courts to resort to corporate registration statutes to reach many large, out-of-state defendants. The few courts to encounter corporate registration statutes divided over whether these statutes could confer general jurisdiction, but most states continued using their pre-existing implied consent frameworks. The focus of most personal jurisdiction analysis shifted primarily to minimum contacts.
Perhaps the most dramatic change came in the rise of private party agreement as the dominant form of jurisdictional consent. The Supreme Court endorsed ex ante jurisdictional agreements in National Equipment Rental v. Szukhent (1964), and The Bremen (1972) and Carnival Cruise (1991) cases established broader enforcement of forum selection clauses. This led to the emergence of “contractual personal jurisdiction,” where private agreements became a parallel path to establishing jurisdiction alongside minimum contacts. This era also saw further development in the understanding of consent as waiver. In Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (1982), the Supreme Court established personal jurisdiction as a waivable individual liberty right. This framing influenced courts to look more favorably on private party conduct-based waivers than state-mandated consent, reflecting a broader shift toward private ordering in civil procedure.
The theoretical foundations of consent-based jurisdiction remain somewhat unsettled. The evolution from state-controlled submission to private party agreement represents a significant shift in jurisdictional theory and practice, but questions persist about the proper balance between state power, individual rights, and private ordering. This history helps explain current debates over issues such as corporate registration statutes and forum selection clauses, showing how modern jurisdictional consent doctrine emerged from earlier concepts while developing in new directions that would have been unfamiliar to nineteenth-century jurists.
The transformation of jurisdictional consent reflects broader changes in American law and society, particularly the growing acceptance of private ordering and the need to accommodate increasingly complex interstate and international commerce. While courts now generally accept various forms of consent-based jurisdiction, the theoretical and constitutional implications of this acceptance continue to influence modern jurisdictional debates.
Professor Scott Dodson, UC Law – San Francisco
The Mallory dispute started in Pennsylvania, which has a unique business-registration statutory regime. Pennsylvania prohibits in-state business until the business registers with the state, and Pennsylvania law deems a registering business to be subject to general personal jurisdiction in Pennsylvania.
Norfolk Southern, a national railroad incorporated in Virginia and with its headquarters in Virginia, had registered in Pennsylvania back in 1998 and had, since then, done substantial business in the state, including operating more than 2,000 miles of track, eleven rail yards, and three repair shops.
Robert Mallory, a resident of Virginia, was a longtime Norfolk Southern employee who claimed to have been exposed to asbestos while working for the railroad in Virginia and Ohio, from which he developed colon cancer. He sued under the FELA in Pennsylvania state court. (The railroad could not remove to federal court because FELA claims are nonremovable.) Mallory argued that, by choosing to register under Pennsylvania’s statutory regime and with knowledge of the consequences, the railroad had consented to general personal jurisdiction in Pennsylvania.
Norfolk Southern moved to dismiss for lack of personal jurisdiction, and the state courts granted then affirmed that dismissal, reasoning that the railroad either did not effectively consent or that such consent was inconsistent with the U.S. Supreme Court’s recent general-jurisdiction cases. Mallory then appealed to the U.S. Supreme Court.
The Court reversed. It held, relying on Pennsylvania Fire, that states could, consistent with the Due Process Clause, extract consent to general jurisdiction in a business-registration statute. Indeed, the Court held that “the state law and facts before us fall squarely within Pennsylvania Fire’s rule.”
Five justices also rejected the argument that International Shoe had wiped the registration-cases slate clean. In their view, International Shoe applies only to nonconsenting defendants. Consent cases, then, need not follow that framework. And they reasoned that consent need not be express but can be implied from the circumstances—circumstances such as those established under the Pennsylvania statutory regime.
The Court thus reversed and remanded the case back to the Pennsylvania courts.
The Mallory decision makes clear that consent is a basis for personal jurisdiction independent of International Shoe. But it also opens up new questions. Perhaps the most glaring is whether other constitutional provisions might circumscribe a state’s ability to extract consent to jurisdiction. Justice Alito discussed this possibility—under the so-called Dormant Commerce Clause—in his concurring opinion. In addition, the Pennsylvania Supreme Court raised the possibility that conditioning the right to do business in a state on consent to suit violated the unconstitutional-conditions doctrine. So perhaps the constitutional story of consent to personal jurisdiction has not yet run its course.
Other questions remain. One is the status of the pre-Shoe precedent on business-registration statutes. The Court firmly relied on Pennsylvania Fire, but that case—and all the older “consent” cases—are different from Mallory in one interesting aspect. That aspect is that the “consent” in the older cases was consent to the appointment of an in-state agent for purposes of in-state service upon that agent. Those statutes purported to extract consent to an agent appointment, not to personal jurisdiction directly. In each case, personal jurisdiction was conferred only upon service upon that appointed in-state agent.
But the Pennsylvania statute is different. It does not require the appointment of an in-state agent for purposes of service of process. Rather, it deems registration itself to give the state general personal jurisdiction. Under the Pennsylvania regime, in-state service is irrelevant. Indeed, I have good reason to suspect that Mallory served Norfolk Southern in Virginia, not Pennsylvania. That, to me, is a distinction that should have been explored.
Another set of questions revolves around the nature of consent itself, something that Robin raised a moment ago. The Court has distinguished between waiver and forfeiture in other contexts, and it has distinguished between express consent and implied consent in personal-jurisdiction cases. The federal rules treat the personal jurisdiction defense as “waived” if not asserted in compliance with Rule 12. One could interpret that provision as speaking only to the procedural disablement of a litigant from being able to raise the defense, not to actually establishing personal jurisdiction by consent—after all, regulation of the substantive scope of personal jurisdiction is arguably outside the mandate of the Rules Enabling Act. More generally, then, is there a doctrinal distinction between express consent, implied consent, waiver, and forfeiture? Or is it all just consent, in that each actually establishes personal jurisdiction outside International Shoe? I’m with Robin on this: I think consent, waiver, and forfeiture are separate. But Mallory strongly suggests a more monolithic conception.
How does consent relate to privity and other aspects of contract law? If Norfolk Southern had not registered to do business in Pennsylvania but instead had put a notice on its website that read, “Norfolk Southern consents to general personal jurisdiction in Pennsylvania,” would that be consent, or would that be an illusory and unenforceable promise? Is bargained-for consent any less valid as submission to sovereign authority if the consideration is withheld or if the bargain is unlawful? If part of a bargain, can only the party to the bargain enforce consent, or can anyone? How can consent be withdrawn?
More confoundingly, these questions all have two sets of answers: one under the Due Process Clause and the other under state law. The Due Process Clause sets the law of consent to personal jurisdiction at the constitutional level, but states are free to provide less personal jurisdiction than what the Constitution otherwise allows. If a party’s conduct is lawful consent under the Due Process Clause, a state might deem the same conduct to be insufficient consent under the state’s long-arm statute.
Another question is the dual-sovereign interplay of personal jurisdiction. Say a British company registers to do business in Pennsylvania but never sets up any operations in Pennsylvania or any other U.S. state. In fact, the filing of those registration papers is the only contact the company has with the United States. That is arguably enough for personal jurisdiction in Pennsylvania state court under Mallory, even if the cause of action arises wholly in England. But is it enough for personal jurisdiction in Pennsylvania federal court? Note that the Pennsylvania statute only extracts consent to personal jurisdiction in state court. And it’s not clear that the Fifth Amendment would authorize personal jurisdiction in federal court based solely on filing that paperwork. Maybe consent to state-court personal jurisdiction is, as a matter of federal law, also automatically consent to federal-court personal jurisdiction, but shouldn’t the consenter get to set the parameters and scope of their own consent?
I will add one final point, which is that problems of exorbitant exercises of personal jurisdiction based on consent have some existing solutions. One is forum non conveniens. Even if Pennsylvania has personal jurisdiction—under both state and federal law—over Norfolk Southern in Mallory’s case, and even if other constitutional provisions are not violated, the facts strike me as a perfect use of forum non conveniens. Both parties are from Virginia. The cause of action arose in Virginia. It is likely that most witnesses and documents are in Virginia. Virginia has strong interests in adjudicating the dispute. Pennsylvania follows a state version of forum non conveniens for precisely these kinds of circumstances. If I were Norfolk Southern, I would make a swift motion to dismiss the case on state forum non conveniens grounds.
Aaron Simowitz, Willamette University College of Law
Let’s begin with my favorite exchange from the Mallory argument. This is an exchange between Justice Kagan and Deputy Solicitor General Gannon. Justice Kagan says:
Mr. Gannon, the Solicitor General has a choice whether to participate in this suit or not. And so please don’t take this at all as a criticism. It’s genuine interest and curiosity. What is it about this suit that has made you decide to participate? In other words, what interests of the United States or dangers to the United States do you see at stake in this suit?
Now, Deputy Solicitor General Gannon responded:
The Petitioner had called into question the constitutionality of a federal statute, and so we thought that it was important to make sure that the Court’s decision here wouldn’t implicate the constitutionality of federal statutes. We think that there’s potential differences between the Fifth and Fourteenth Amendment, as the Court has repeatedly mentioned and reserved the question most recently in Bristol-Myers. But even apart from that, we think that the Congress and the executive branch in the context at issue there have a greater ability to assess international and interstate considerations.
Now, it turns out that the United States was right to be concerned because the United States did not get either of the things that they argued for in Mallory. The United States, at bottom, argued, one, that the Pennsylvania state consent-to-jurisdiction statute should be held unconstitutional, which the court disagreed with. And two, please, Supreme Court, don’t do anything that would imperil the recently enacted federal consent-to-jurisdiction statute, the Promoting Security and Justice for Victims of Terrorism Act or the PSJVTA. And lo and behold, not even three months after Mallory was handed down, a panel from the Second Circuit struck down that federal consent-to-jurisdiction statute, holding that it violated the Fifth Amendment to the Constitution in the case of Fuld v. Palestine Liberation Organization.
In my time, I want to tell you first how we got to this place, where this federal consent-to-jurisdiction statute is required. I am going to tell you a little bit about this statute. And I am going to tell you a little bit about the subsequent litigation about this statute, which has now resulted in a cert grant on December 6th.
So first, how did we get to where Congress sees that this federal consent-to-jurisdiction statute is necessary? In 1985, terrorists hijacked the Achille Lauro and murdered U.S. national Leon Klinghoffer. The subsequent litigation faced a lot of jurisdictional hurdles, although it was ultimately successful. In response to that, in 1992, Congress enacted a statute called the Anti-Terrorism Act (ATA) to, in the words of the sponsors, overcome jurisdictional obstacles facing U.S. nationals trying to get relief for acts of terrorism that had harmed them abroad. And what this 1992 statute, the Anti-Terrorism Act, did, among other things, was to create a federal statutory cause of action that would be available only to U.S. nationals to seek treble damages for terrorism harms suffered abroad. And this worked pretty well for a while, until the current era of radical narrowing of personal jurisdiction in American courts, in particular, the dramatic narrowing general jurisdiction in Daimler v. Bauman (2014) and the narrowing of specific jurisdiction in Walden v. Fiore (2014).
In Daimler, the Court narrowed the U.S. doctrine of general jurisdiction. It used to be true that you could get power over any multinational in a U.S. court if they had continuous and systematic contacts with the forum. And that was considered very broad. If a defendant leased a small sales office with seven people, that was enough. The Court narrowed general jurisdiction such that it is only available over a multinational where they are essentially at home, meaning, in essence, the principal place of business or place of operation. In Walden, on the specific jurisdiction side of the ledger, the Court said that you cannot get specific jurisdiction unless the defendant has targeted the forum state itself. It is not enough to target a person who happens to live in the forum state.
This one-two combination of knockout punches resulted in the dismissal of all the then-pending ATA litigation against the Palestinian Liberation Organization (PLO) and the Palestinian Authority (PA) because you cannot any longer hale those defendants into U.S. courts under a theory of general jurisdiction or of specific jurisdiction. One of the cases now pending before the Supreme Court was then pending on appeal before the Second Circuit. It was dismissed on jurisdictional grounds.
To give you some sense of how long this issue had been brewing: I wrote about this issue in my job talk paper, where I said that this is a serious problem because the Supreme Court in narrowing personal jurisdiction has accidentally eviscerated these federal regulatory schemes. Congress is going to respond, and they are going to do it in the area of terrorism regulation. Although I should point out, this is not the only federal regulatory scheme the Court has accidentally undermined through narrowing personal jurisdiction.
So sure enough, in 2018, Congress passed a statute that was then called the Anti-Terrorism Clarification Act. The act said that the PLO or the PA, or any entity affiliated with them, will be deemed to have consented to jurisdiction in the United States if it takes certain actions, including accepting U.S. foreign aid. In response, the PA decided it would not accept any more U.S. aid because it wanted to avoid jurisdiction. So Congress amended the statute, and we now have what Congress should have called the Anti-Terrorism Clarification Clarification Act.
Instead, Congress called the statute the PSJVTA. The statute says that if the PLO or PA take any of several acts, including making payments to a convicted terrorist or the family of the convicted terrorist, sometimes called martyr payments, or pay-for-slay payments, then they will be deemed to have consented to the jurisdiction of U.S. courts, but only for claims under the Anti-Terrorism Act, which recall can only be brought by U.S. nationals for a certain small subset of claims. The PA did not stop the behaviors identified in the statute, so the statute now basically goes live.
That brings us up to the exchange between Justice Kagan and Deputy Solicitor General Gannon in Mallory. A lot of us thought that Mallory basically resolved this issue, that if a state consent-to-jurisdiction statute was okay under the Fourteenth Amendment to the Constitution, certainly this federal consent-to-jurisdiction jurisdiction statute is constitutional under the Fifth Amendment. Not so said the Second Circuit, which struck down the statute as violating the Due Process Clause of the Fifth Amendment.
There were two arguments raised in the Second Circuit. One, which the Second Circuit essentially ignored, was that the PSJVTA statute is distinguishable from the Pennsylvania statute because it lacks the formal requirements. The PA argued that Mallory works because there is this very formal act of signing a piece of paper that you deposit with the Secretary of State of Pennsylvania. And that is a required formal act. The Second Circuit does not take that up. Instead, the Second Circuit picks up the argument that there is an essential core of consent. The essential core of consent is a reciprocal bargain or reciprocal obligation, and that it exists in Mallory. The reciprocal bargain was that if you want to do business in Pennsylvania, then you are required to consent to general personal jurisdiction. But the Second Circuit says there is no reciprocal bargain or reciprocal obligation in this federal consent-to-jurisdiction statute. And therefore, it flunks this essentialist conception of the constitutional framework of consent.
The Second Circuit declined to review the panel’s decision en banc. Judge Menashi authored a lengthy dissent from that denial. First, he argued that there actually is a reciprocal obligation here. Second, we, the federal courts interpreting a federal statute passed by the federal Congress, should not be in the business of determining when there is a reciprocal bargain in the context of national security and foreign policy. Third, there is really no originalist case for creating any of these restrictions under the Fifth Amendment in the Constitution. That is how we arrive at December 6th, when the Court granted certiorari.
With the remainder of my time, I will try to talk about what might happen as this case proceeds. There are a lot of different things the court could do. The court could basically say: We just handled this in Mallory. We had a five-judge majority reaffirming the Pennsylvania Fire case. It was a 1917 decision, and Justice Holmes said, in a true Holmesian fashion, in a five paragraph long, totally categorical decision, pre-suit consent to jurisdiction barely raises a legal issue. Or the members of the four-justice plurality authored by Justice Gorsuch, which said, among other things, consent is not subject to the constraints of the International Shoe framework, could say: We made clear that consent could be manifested “by word or deed.” And the fact that Justice Gorsuch included that language, “by word or deed” suggests to me that he was looking ahead to this next case, whether this federal statute’s consent is by deed and not by word.
Even the dissenters who argued for the constitutional limits in Justice Barrett’s dissent said that this is a real problem because Pennsylvania was using this label of consent to eviscerate the limitations on general jurisdiction. In Fuld, the Mallory dissenters could say that the PSJVTA really is not recapitulating classic general jurisdiction. This federal statute is not circumventing Daimler. Because this statute is actually doing something quite different. It brings together specific and general jurisdiction. The drafters of the PSJVTA used unrelated contacts, like a payment to a family of a terrorist abroad, to ground jurisdiction. Using unrelated contacts feels like general jurisdiction, but the PSJVTA provides jurisdiction only for the very narrow subset of claims that always need to be brought by a U.S. national. That is grounding jurisdiction for a very narrow subset of claims, specifically those under the Anti-Terrorism Act regime. So what the PSJVTA gives courts is not really either general jurisdiction or specific jurisdiction. It is a sort of combination of the two.
If the Supreme Court decides to affirm the Second Circuit’s striking down of the PSJVTA, it could either just affirm this essentialist reciprocal obligation argument or it could hold that you need a formal act to grant consent. This formalist approach could be more appealing to the Supreme Court than it was to the Second Circuit. The last way that the Court could resolve this case, which is the big-ticket issue in this case, is that the Court could say for the first time that there is a difference in how we analyze personal jurisdiction exercised by the federal sovereign, which is governed by the Fifth Amendment, versus how we analyze personal jurisdiction exercised by the quasi-sovereign states, which is governed by the Fourteenth Amendment.
Now, you probably already realize that we have had a whole lot of Supreme Court decisions on personal jurisdiction, and every one of those decisions has been interpreted under the constitutional restrictions imposed by the Fourteenth Amendment, which applies to the states. The Supreme Court has never definitively taken up the question of what jurisdictional restrictions are imposed by the Fifth Amendment. Some of the briefs have argued that the court should take this opportunity to articulate a different standard under the Fifth Amendment. In the work of various scholars today, you see pretty much every position on this issue represented. You have what I call the minimalist position, which argues that the only difference between the Fifth and the Fourteenth Amendment is territorial scope. For instance, every single federal circuit court that has taken up this issue has held that the quintessential and perhaps the only difference between the Fifth and the Fourteenth Amendment is that the Fifth Amendment allows courts to treat the entire United States as one jurisdictional unit. We sometimes call this aggregation of national contacts. In short, everybody agrees that jurisdiction under the Fifth and Fourteenth Amendments is different. The only question is how. The minimalists would say the only difference, the quintessential difference, is you move the relevant territory from the state of Pennsylvania to the entire nation.
The maximalist position, often associated with Professor Stephen Sachs, is that there are no constitutional restrictions on personal jurisdiction under the Fifth Amendment. Personal jurisdiction is about horizontal federalism. It is about making sure the quasi-sovereign states do not reach into each other’s territory. All of that falls away when you are talking about the federal government in a transnational case—therefore, no constitutional restrictions under the Fifth Amendment.
And then there are those of us in the muddy middle, the “middlers,” who think that there should be significant differences in terms of how we think about personal jurisdiction exercised by the federal sovereign versus the state sovereigns, but without the need to go all the way to “everything is permitted.” In my defense, that is also what General Prelogar argued in the United States’s certiorari petition, where she said: This is an opportunity to go all the way back to International Shoe when we talk about the Fifth Amendment and to sweep away all the restrictive developments since International Shoe. I have written elsewhere that one way to think about this is as a constitutional “departmentalist” approach. If we think that the elected branches of the federal government are engaging in constitutional interpretation, this is an area where we might think the power and expertise of the elected branches should be given weight. Here, the elected branches are talking about transnational cases involving terrorism and foreign government authorities. On this view, the Court ought to say that we have an explicit judgment about the constitutional content of the Fifth Amendment by Congress and by the executive, and we should not disregard that unless there is a really powerful reason.
Mallory could have produced a very simple rule. But we now could be headed for a very complicated decision. So perhaps, next year, we will all come back here to talk about the fallout of the PSJVTA and its consequences.