Railroading Personal Jurisdiction

Abstract

On June 27, 2023, the United States Supreme Court in Mallory v. Norfolk Southern Railway Co. held that a Pennsylvania state court could legitimately assert personal jurisdiction over a nonresident corporation based on a consent statute that required out-of-state corporations to consent to personal jurisdiction as a condition for registering to do business in the state. The Court’s plurality decision determined that the state’s application of its statute to assert jurisdiction over Norfolk Southern Railway Co. did not violate the Due Process Clause of the Fourteenth Amendment. For a conservative Court, this was an unlikely victory for an injured plaintiff that was ironically based on robust adherence to stare decisis. The four fractured decisions in Mallory, in which all nine Justices joined in part, concurred, or dissented, represents the Court’s disturbing trend to fail to articulate a coherent doctrine of personal jurisdiction. The Mallory plurality opinion conflates the muddled doctrine of consent jurisdiction using it in support an expansive consent theory of all-purpose general jurisdiction, which the Court has eschewed in recent cases. Moreover, the Court, which has taken to disregarding precedent in constitutional cases, nonetheless relied on a 1917 Pennsylvania precedent as authority for the plurality opinion upholding the Pennsylvania statute against Norfolk Southern Railway.

The Mallory opinions further signal a curious return to state sovereignty theories of personal jurisdiction, sounding in Pennoyer-era jurisprudence. Moreover, Justice Alito’s concurring opinion encourages the introduction of a Dormant Commerce Clause argument into personal jurisdiction jurisprudence when no one argued this to the Court. The dissent observes that the Mallory plurality opinion represents the beginnings of an attack on and rethinking of the Court’s canonical International Shoe due process decision. This Article contends that the Court’s personal jurisdiction jurisprudence is an incoherent muddle and that the Court is not improving this jurisprudence with each successive personal jurisdiction pronouncement. Collectively, Mallory is a bad decision based on a weak plurality decision. Due process advocates ought to take notice of Mallory’s incipient assault on the Court’s longstanding International Shoe doctrine and attempted resuscitation of Pennoyer-era jurisdictional theories. Considering these concerns, the Article suggests that the Court should engage in a self-imposed moratorium on further personal jurisdiction pronouncements for the near future.

Keywords: Mallory, Norfolk Southern Railway, corporate registration statutes, personal jurisdiction, general jurisdiction, specific jurisdiction, Dormant Commerce Clause, plurality decision, all purpose general jurisdiction