Oral Argument on Personal Jurisdiction Today
November 8, 2022
The Supreme Court will hear oral argument today in Mallory v. Norfolk Southern Railway, a personal jurisdiction case in which the defendant “consented” to general jurisdiction in Pennsylvania based on a corporate registration statute.
Although Mallory itself involves no transnational facts, the case could have important implications for foreign defendants. Pennsylvania’s registration and long-arm statutes, if upheld, would confer general jurisdiction over foreign corporations who register to do business in the state, meaning that they would be amenable to suit in Pennsylvania even in cases that have nothing to do with that state. The Justices should – as Maggie Gardner has argued – consider the relationship between specific and general jurisdiction over foreign defendants as they decide Mallory. The Court adopted a restrictive view of general jurisdiction in Daimler v. Bauman, and general jurisdiction will be further curtailed if the Court holds for Norfolk Southern, a result that can be counterbalanced through a flexible and expansive approach to specific jurisdiction over foreign defendants.
The Mallory case could also have important implications for some foreign defendants if it announces or discusses the meaning of “consent” as a matter of due process. Mallory’s brief refers to the U.S. government’s argument in Fuld v. PLO (TLB coverage here) that the PLO has “consented” to general personal jurisdiction in the United States based on a federal statute deeming that certain conduct abroad (the making of martyr payments) constitutes consent to such jurisdiction. The government argued in Fuld that the PLO’s conduct is consensual for due process purposes because it is knowing and voluntary. That standard, if applied in Mallory, would mean that Pennsylvania’s exercise of jurisdiction is constitutional – Norfolk Southern has not argued that it was unaware that it was consenting to jurisdiction by registration.
The U.S. government supports Norfolk Southern in this litigation, however, and argues that its reasoning in Fuld does not apply because Fuld involves the Fifth Amendment not the Fourteenth Amendment, and because the federal government has broader power over personal jurisdiction than the states do based in part on the federal government’s power to conduct foreign relations. Perhaps. In specific jurisdiction cases, however, lower courts have – again and again – equated the Fifth and Fourteenth Amendment due process tests for personal jurisdiction.
In any event, Justices who may write in favor of Mallory are likely to stay away from broader theories of consent, perhaps in favor of a very narrow originalist holding based on the history of corporate registration statutes. The history-shorn-of-principle approach is difficult, however. If corporate registration statutes are permissible for purely originalist reasons, should it matter that such statutes once required a physical signature on a piece of paper but that today’s corporate registration statutes are likely filled out entirely online? Justices who may write in favor of Norfolk Southern will have to write carefully, too, to avoid unwanted implications of their language in cases like Fuld. On the other hand, if Norfolk Southern’s consent is not constitutionally valid, then perhaps the PLO’s consent is not constitutionally valid either – the government’s arguments notwithstanding.