Legislative Control of Personal Jurisdiction—An Opening Door

 

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As every first-year law student learns in Civil Procedure, the Supreme Court constitutionalized the law of personal jurisdiction in Pennoyer v. Neff (1878), holding that the Due Process Clause of the Fourteenth Amendment limits the jurisdiction that state courts may exercise. Legislatures still have roles to play. States enact long-arm statutes to reach non-resident defendants, and Congress approves the Federal Rules of Civil Procedure (including Rule 4, which says how and when service of process establishes personal jurisdiction in the federal courts). But state and federal rules operate only within the constitutional bounds set by the Supreme Court.

Recently, however, two Supreme Court decisions have opened the door to greater legislative control of personal jurisdiction at both the federal and the state levels. In Fuld v. Palestine Liberation Organization (2025), the Court held that the Fifth Amendment does not limit federal courts in the same way that the Fourteenth Amendment limits state courts, giving Congress significantly more flexibility to authorize personal jurisdiction in federal courts. Two years earlier, in Mallory v. Norfolk Southern Railway (2023), the Court held that states may deem companies that register to do business in their states to have consented to general personal jurisdiction, raising the possibility that states might deem other activities to constitute consent as well.

What is more, these opportunities for legislative control appear to be greatest with respect to non-U.S. defendants. Having recently taught Fuld and Mallory in my International Litigation class, I want to reflect a bit more on their implications.

Federal Legislative Control

As previously discussed at TLB, the Supreme Court held in Fuld that “the Fifth Amendment does not impose the same jurisdictional limitations as the Fourteenth.” Fuld upheld the constitutionality of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), which provides that the Palestinian Authority and Palestine Liberation Organization are subject to personal jurisdiction in cases under the Anti-Terrorism Act (ATA) if they make certain payments to terrorists or their families or engage in certain activities in the United States. Writing for the Court in Fuld, Chief Justice Roberts did not “delineate the outer bounds of the Federal Government’s power, consistent with due process, to hale foreign defendants into U.S. courts.” Whatever limits the Fifth Amendment imposes, he reasoned, “the PSJVTA does not transgress them.”

In reaching this conclusion, Roberts emphasized that the PSJVTA reflects the “considered judgment” of Congress and the President with respect to “matters of foreign affairs.” The Chief Justice also noted that the PSJVTA was “suitably limited” to achieve Congress’s foreign policy ends, applying to a narrow category of claims under specified circumstances. Fuld left open the possibility that the Fifth Amendment might impose a reasonableness requirement analogous to the one articulated in Asahi Metal Industry Co. v. Superior Court (1987), but suggested that congressional legislation would generally satisfy such a requirement.

Looking Back

Congress has passed few statutes directly addressing personal jurisdiction in federal courts, perhaps because the Supreme Court has previously exercised such firm control. A rare example is the Foreign Sovereign Immunities Act (FSIA), which provides that federal courts have personal jurisdiction over foreign states and their agencies or instrumentalities whenever they are not immune from suit. As I previously pointed out, the FSIA seems to satisfy Fuld by addressing foreign affairs and limiting the personal jurisdiction that it authorizes.

Congress has passed several other statutes authorizing nationwide service of process, including federal antitrust laws, federal securities laws, and RICO. Because service in such cases is “authorized” by a federal statute, Rule 4(k)(1)(C) applies, and federal courts are not restricted to the personal jurisdiction that state courts can exercise, as they are under Rule 4(k)(1)(A). In particular, federal courts have held that personal jurisdiction under such statutes is “not limited to the defendant’s contacts with the forum state” and that courts may “instead consider contacts with the nation as a whole.” One might argue that, after Fuld, such provisions should be read to authorize even broader personal jurisdiction.

Lower courts have started to explore that possibility. But I would caution against reading statutes like these to loosen the rules of personal jurisdiction beyond the use of nationwide contacts, as federal courts have already done. The nationwide service provisions in these statutes do not directly address personal jurisdiction and therefore do not reflect the kind of “considered judgment” by Congress and the President to which the Supreme Court deferred in Fuld. Also, as Maggie Gardner points out in a recent essay, “Congress wrote most of its statutes with the expectation that they would not be applied beyond the limits of the Fourteenth Amendment.” It would be odd to abandon the traditional rules on personal jurisdiction in antitrust and securities cases without any indication that Congress intended such a result.

Going Forward

And yet Fuld unquestionably permits Congress to pass new legislation directly authorizing federal courts to exercise of personal jurisdiction over cases that state courts could not reach. Congress’s control over personal jurisdiction seems greatest with respect to foreign defendants in transnational litigation. “We will not,” the Chief Justice wrote in Fuld, “cavalierly interfere with the political branches’ ‘delicate judgments’ on matters of foreign affairs.”

Congress may be particularly tempted to address personal jurisdiction when current rules operate as de facto limits on extraterritorial legislation. Such was the case in Fuld. Although the Anti-Terrorism Act (ATA) created a cause of action for U.S. nationals injured by international terrorism, limits on personal jurisdiction prevented plaintiffs from suing the PLO or PA until Congress passed the PSJVTA.

Similarly, the Helms-Burton Act created a cause of action against any person who “traffics in property which was confiscated by the Cuban Government.” Although Congress plainly intended Helms-Burton to reach foreign companies, limits on personal jurisdiction have placed most foreign companies beyond its reach. As Helms-Burton cases begin to reach the Supreme Court (at least one of which potentially raises a personal jurisdiction issue), Congress may feel pressure to explicitly assert jurisdiction over foreign defendants.

But Congress’s authority over personal jurisdiction is not limited to cases involving terrorism or expropriation. For better or worse, the Supreme Court seems to think that U.S. foreign policy is implicated in a wide range of transnational cases—even trademark disputes between private companies. Recently, a district court dismissed price-fixing claims against a German company and a Chinese company for lack of personal jurisdiction. As discussed above, I do not think that U.S. antitrust law, as currently written, allows federal courts to ignore traditional limits on personal jurisdiction. But I do not see why, after Fuld, Congress could not amend the law to permit the exercise of personal jurisdiction over foreign defendants whenever U.S. antitrust law would govern.

To reach this conclusion, one need not adopt the “maximalist” position that Justices Thomas and Gorsuch advocated in Fuld, under which the Fifth Amendment imposes no limits on Congress. One need simply recognize that Congress’s interest in applying its law, particularly in an international context, creates an interest in regulating personal jurisdiction to which the Supreme Court will then defer. This may be bootstrapping—but it is no different from the bootstrapping the Court did in Fuld.

It seems, in short, that Congress now controls not only the extraterritorial reach of U.S. law, but also the rules of personal jurisdiction for reaching foreign defendants who violate that law. There is no longer any reason for personal jurisdiction to operate as a limit when Congress decides that it wants to regulate extraterritorially. Whether Congress will choose to exercise its new authority over personal jurisdiction remains to be seen. But Fuld has opened the door.

State Legislative Control

The Supreme Court’s decision in Mallory v. Norfolk Southern Railway Co. (2023) opened a different door for state legislative control of personal jurisdiction. Mallory upheld the constitutionality of a Pennsylvania law providing that registering to do business in the state is consent to general jurisdiction.

For many years, state courts were able to exercise general jurisdiction over foreign defendants based on their “continuous and systematic” business contacts with the forum. But in Daimler AG v. Bauman (2014), the Supreme Court limited this kinds of general jurisdiction to those states where a defendant may be considered “at home”—for a corporation, its state of incorporation and its principal place of business. Daimler rested on a new interpretation of the Court’s seminal decision in International Shoe Co. v. Washington (1945). Mallory was able to avoid Daimler, however, by holding that consent is a basis for jurisdiction separate and apart from the International Shoe framework.

The most obvious way in which states could exercise legislative control over personal jurisdiction after Mallory would be to pass statutes like Pennsylvania’s providing that registration to do business in the state is consent to general jurisdiction. Illinois has passed a limited provision applicable to toxic tort cases allowing Illinois courts to assert general jurisdiction over foreign defendants when at least one co-defendant is subject to specific jurisdiction in Illinois. In December, however, Governor Kathy Hochul vetoed a proposed New York statute that would have asserted broad general jurisdiction over foreign corporations that register to do business in New York.

States might also pass statutes providing that just doing business in the state, even without registering, is consent to general jurisdiction. As Justice Barrett pointed out in her Mallory dissent, if consent may be presumed from knowledge of an action’s “jurisdictional consequences,” other actions might also be deemed to constitute consent. Thus, states might resurrect the pre-Daimler regime of “doing business” jurisdiction by passing statutes that base general jurisdiction on continuous and systematic business contacts.

States might even enact statutes like the PSJVTA that deem the making of payments to terrorists abroad to be consent to personal jurisdiction for terrorism-related claims in the United States. Although the Second Circuit held that such deemed consent was not constitutionally sufficient under Mallory, the Supreme Court avoided answering this question in Fuld. The limits of “consent” thus remains an open question.

State legislation on personal jurisdiction might, of course, be subject to preemption. Concurring in Mallory, Justice Alito suggested that Pennsylvania’s registration statute is unconstitutional under the Dormant Commerce Clause. But the Supreme Court has recently read the Dormant Commerce Clause narrowly, suggesting that only discriminatory state laws are preempted. And although the Foreign Commerce Clause was once thought to impose greater limits on the states than the Interstate Commerce Clause, more recent cases appear to have retreated somewhat.

It may be, in fact, that states should have greater legislative control over defendants from other countries than over defendants from other states. First, to the extent that Fourteenth Amendment limits on personal jurisdiction are based on concerns of interstate federalism, such concerns may be less pressing in an international context. When a state exercises personal jurisdiction over a defendant that is “at home” in another state, it intrudes on the home state’s authority. But the same is not true when a state exercises personal jurisdiction over a foreign defendant who is not “at home” in any state.

Second, that foreign defendants are not subject to general jurisdiction in any state (at least absent consent), makes it more important for states to be able to legislate such jurisdiction. When a U.S. manufacturer makes a defective machine that causes injury in a state where specific jurisdiction is lacking, the injured person may rely on general jurisdiction to sue the manufacturer in a U.S. state where the manufacturer is “at home.” But when a foreign manufacturer does the same—think of J. McIntyre Machinery, Ltd. v. Nicastro (2011), for example—there is no U.S. forum in which the suit can be brought, not unless states are free to provide such jurisdiction by statute.

Conclusion

These are exciting (or perhaps terrifying) times for anyone interested in personal jurisdiction. The law is bending along many dimensions. One of those dimensions is legislative control.

So far, states have shown little inclination to take advantage of Mallory, and it is much too early to say how Congress will respond to Fuld. The Supreme Court has opened doors to greater legislative control of personal jurisdiction. It remains to be seen whether Congress and the states will walk through them.