Waiting for Mallory

New neighbors by Liz West (CC BY 2.0)

Last Thursday, the Supreme Court released five opinions—but Mallory v. Norfolk Southern Railway Co. was still not among them. The Court heard the personal jurisdiction case in November, and while eight other cases remain pending from the October and November sittings, those are cases (e.g., about the future of the Voting Rights Act, affirmative action, and the Indian Child Welfare Act) that no one expected to be resolved quickly. Why the hold up on the relatively obscure question of the extent to which states can require out-of-state businesses to consent to personal jurisdiction?

At oral argument last fall, the Justices did seem fractured over how to think about the question. Some Justices viewed International Shoe Co. v. Washington as having obviated the need for registration statutes; others debated whether such statutes were a form of consent or waiver, or otherwise analogous to “tag” jurisdiction over individuals; and still others worried about the practical consequences of approving broad registration statutes. The Justices even considered an argument, raised by Professor Stephen Sachs in an amicus brief, that the question should be resolved not as a matter of due process, but as a dormant Commerce Clause issue.

Thus I read with interest the dormant Commerce Clause case that the Court did release last week, National Pork Producers Council v. Ross. The Court in National Pork ultimately rejected the plaintiffs’ dormant Commerce Clause argument, making it unlikely that the dormant Commerce Clause will make a further appearance in Mallory. But the Court got to this outcome via a fractured vote that might shed additional light on the Justices’ struggles with Mallory.

National Pork and Pike Balancing

National Pork involved a challenge to a California law prohibiting the sale of pork in California that comes from animals confined in a “cruel manner.” Most pork consumed in California is raised and produced outside of California, so the law has admittedly extraterritorial effects. Further, the plaintiffs argued, the California market is so significant that the California law would compel national pork producers to alter their processes across the board, thereby affecting not just out-of-state producers, but also out-of-state consumers (e.g., through higher prices).

Five Justices rejected the plaintiffs’ dormant Commerce Clause claim, but they could not agree on a rationale. As a starting point, all nine Justices agreed that California’s law was not facially discriminatory and was not clearly motivated by economic protectionism—the core of dormant Commerce Clause territory. That leaves so-called Pike balancing (after Pike v. Bruce Church (1970)), which allows courts to block laws that substantially burden interstate commerce if those burdens are clearly excessive in light of the claimed local benefits. On the applicability of Pike, the Justices helplessly divided in a manner reminiscent of Tidewater Transfer.

Three Justices (Gorsuch, Thomas, and Barrett) concluded that Pike balancing is simply infeasible—at least in this case—because it asks judges to weigh incommensurate policy concerns of the sort best left to elected bodies. The other six Justices vehemently disagreed. But regardless of the viability of Pike balancing, four Justices (Gorsuch, Thomas, Sotomayor, and Kagan) thought that the plaintiffs had not sufficiently alleged Pike’s threshold requirement that California’s law places a substantial burden on interstate commerce. With Justice Barrett’s rejection of Pike balancing, that added up to five votes to reject the plaintiffs’ dormant Commerce Clause claim—even though five Justices (including Justice Barrett) thought that the plaintiffs had sufficiently alleged a substantial burden. That is, there were five votes for the outcome, even though there were not five votes for either of the rationales supporting it.

Reading the Tea Leaves

Applying the dormant Commerce Clause to Mallory would require wading back into Pike balancing, and I doubt any of the Justices have any desire to go there in the near future. Still, Justice Gorsuch did foreshadow his rejection of Pike balancing in a playful exchange with Mallory’s lawyer at oral argument last fall:

KELLER: Not only that, Justice Gorsuch, but also under Pike’s balancing, we will show —

JUSTICE GORSUCH: Oh, goodness, Pike balancing.


KELLER: Don’t worry. You’ll like the rest of my answer. But —



Even without the dormant Commerce Clause seriously in play, however, three more general themes in National Pork are potentially relevant to Mallory and the future of personal jurisdiction.

First, the three Justices who rejected Pike balancing did so because they believe that judges are “not institutionally suited to draw reliable conclusions of the kind that would be necessary” to compare “incommensurate” interests. They also cast shade on “presum[ing] to make such binding judgments for society, under the guise of interpreting the Due Process Clause” as well—concerns that echo Justice Black’s dissent in International Shoe Co. v. Washington (1945). We already know from the Gorsuch/Thomas concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court (2021) that they are similarly concerned about the open-ended considerations of fairness that underly International Shoe’s substantive due process analysis. But Justice Barrett did not participate in Ford. Does National Pork suggest she will be equally skeptical of International Shoe’s flexible standard?

Second, portions of Justice Gorsuch’s majority opinion wax rhapsodic about “the role territory and sovereign boundaries play in our federal system.” This language hints, as Will Baude has written, of a constitutional Territoriality Principle Without A Clause. A free-floating idea of “the territorial limits of state authority under the Constitution’s horizontal separation of powers” could indeed solve many of the Court’s recurrent conundrums: for one thing, it fits the Court’s sovereign immunity jurisprudence better than the Eleventh Amendment does, and it would provide the Court with a sharper tool for curtailing states’ regulatory interests than personal jurisdiction doctrine currently provides (I’m thinking here of Bristol-Myers Squibb v. Superior Court (2017)). It is also terrifying for precisely the same reason that Gorsuch gives when rejecting Pike balancing just a few pages later: such a principle is whatever a majority of the Justices says that it is.

As Baude notes, there is a lot to unpack in the Court’s broad invocation of the “principles of sovereignty and comity [that the Constitution] embraces.” It might signal a renewed emphasis on territoriality over fairness in personal jurisdiction doctrine. But it is also not clear which way Gorsuch’s understanding of territoriality would fit a case like Mallory, in which Pennsylvania has a traditionally territorial claim over the defendant, who is definitely present within the state, but where the exercise of that territorial power could interfere with the indisputably greater regulatory interests of other states (a tension that is not necessarily conducive to “comity”). That’s not the only mixed signal, either. “To resolve disputes about the reach of one State’s power,” Gorsuch wrote, “this Court has long consulted original and historical understandings of the Constitution’s structure.” Yet the Justices largely seemed disinterested in originalist arguments at the Mallory oral arguments last fall. Ultimately, as I have argued with others, Gorsuch’s hunt for a conception of personal jurisdiction entirely rooted in territorial power is not workable and will only recreate the problems he sees in the current doctrine.

Third, part of the problem with such a territoriality principle is that states are not equal, or at least not equivalent. Justice Kavanaugh’s partial dissent in National Pork railed against California’s ability to shape national markets—what he characterizes as California imposing its morality on the rest of the country. I hear echoes in Justice Kavanaugh’s opinion of Justice Alito’s discomfort in Bristol-Myers Squibb with California’s willingness to hear—and apply California law to—parallel litigation involving claims by non-California residents harmed outside of California.

One could joke that the Court is really enunciating an anti-California principle. But the problem (and the Court’s response to it) is a serious matter. In order for states to govern effectively, their regulatory reach must extend beyond their borders. But how far they may do so, or to what extent they may permissibly conflict with the regulatory choices of other states, is an inherent tension in our constitutional system, stretching from the Fugitive Slave Act to the post-Dobbs landscape. There is no easy answer.

What Will Come of Mallory?

There is also no easy answer for Mallory—or at least so the six-month wait for an opinion would suggest. At oral argument, Chief Justice Roberts and Justice Kagan advocated perhaps the easiest route out of the maze: that International Shoe controls and that it requires some nexus between the forum and the parties. It would be, in short, a reaffirmation of Shaffer v. Heitner (1977) (the most under-appreciated post-International Shoe personal jurisdiction case). Like Shaffer, such a holding would not require rejecting all registration statutes—indeed, it appears that no other state besides Pennsylvania has interpreted its statute quite as broadly. As I’ve flagged before on TLB, registration statutes play an important role in enabling states to exercise jurisdiction over foreign businesses that harm state residents. Mallory might be an occasion, as with Justice Kagan’s opinion for the Court in Ford, where the less said the better.

But as time passes, the International Shoe/nothing-to-see-here route seems increasingly less likely to be the route that the Court will take. Three other outcomes now seem more plausible. One option would be a highly fractured decision, just like in National Pork. That would carry on a grand tradition in personal jurisdiction cases (see, most recently, J. McIntyre Machinery, Ltd. v. Nicastro). Indeed, if this is how Mallory turns out, it would be reminiscent of the Rehnquist Court’s struggles in Asahi Metal Industry Co. v. Superior Court (1987) and Burnham v. Superior Court (1990) and its punting in Carnival Cruise Lines, Inc. v. Shute (1991) before it went silent on personal jurisdiction for more than twenty years. After soon-to-be eight decisions on personal jurisdiction over the last twelve years, perhaps it is time for the Roberts Court to take a break, too.

Alternatively, they could blow the whole thing up. This is where National Pork’s rhetoric about the general constitutional principle of territoriality raises warning flags. While I’m confident that Justices Sotomayor and Kagan are not about to jump off that cliff, Justices Gorsuch, Thomas, and Alito already signaled their willingness to do so in Ford. National Pork might foreshadow additional votes in the form of Justice Barrett’s willingness to reject Pike balancing and Justice Kavanaugh’s pragmatic frustration with what he views as states’ regulatory overreach.

Just to be clear, overturning International Shoe would be terrible. I have just posted an essay defending the International Shoe paradigm and attempting to walk the Justices back from the precipice. The longer we wait for a Mallory opinion, however, the more concerned I become.

Or, option three, the Court could DIG it. When the Court dismisses a case as improvidently granted, it typically offers no explanation—it is an easy out. And Mallory is arguably a good candidate for a DIG. The problem does not seem to be a rampant one: Pennsylvania’s approach appears to be unique, and it is not clear how often that statute is even invoked in cases with no nexus to the state. And the facts of Mallory are not particularly compelling given that there is some nexus between the dispute and the state: Norfolk Southern has a significant presence in Pennsylvania, and Mallory lived in Pennsylvania while working for Norfolk Southern for a significant portion of his career. Finally, a DIG would avoid incentivizing other states to follow Pennsylvania’s lead, at least as compared to a decision upholding Pennsylvania’s statute.

Mallory is not the vehicle for reconceptualizing personal jurisdiction doctrine precisely because the question it presents is relatively obscure. On the other hand, a fractured set of opinions could further destabilize what is an increasingly precarious doctrinal structure. There is something to be said for hiding one’s head in the sand, at least for a little while.