Mallory v. Norfolk Southern: Oral Argument Preview

In Mallory v. Norfolk Southern Railway Co., the Supreme Court will consider whether state courts can exercise general jurisdiction over a corporation based solely on the corporation’s registering to do business in the state. The suit, filed in Pennsylvania, involves claims by a Virginia citizen against a Virginia corporation—headquartered in Virginia—for injuries suffered in Virginia. Under Pennsylvania law, Norfolk Southern is subject to general jurisdiction in Pennsylvania because it registered to do business there. The Supreme Court of Pennsylvania found that the long-arm statute violates the Fourteenth Amendment’s Due Process Clause. The Supreme Court of Georgia, however, has upheld a similar statute, and the Court granted certiorari to resolve the split in authority.

Mallory asks the Court to stay with its 1917 Pennsylvania Fire decision, which upheld “consent-by-registration” statutes. He argues that corporations may choose whether to register to do business in a state. Because that choice is voluntary, Mallory contends that Norfolk Southern consented to personal jurisdiction in Pennsylvania. Mallory also points to states’ exercise of jurisdiction over foreign corporations around the time of the Fourteenth Amendment’s ratification. He argues that the Due Process Clause’s original public meaning supports upholding consent-by-registration statutes.

Norfolk Southern disagrees, contending that recent personal-jurisdiction decisions limiting states’ exercise of general jurisdiction render Pennsylvania Fire no longer good law. It also argues that corporations don’t have a real choice of whether to register to do business in a state. Because it is an illusory choice, Norfolk Southern asserts that it has not validly consented to general jurisdiction in the Commonwealth. As to the original public meaning of the Fourteenth Amendment, Norfolk Southern argues that the actual practice around the Fourteenth Amendment’s ratification was for states to exercise specific jurisdiction over corporations based on their registering to do business in the state—not general jurisdiction.  

In an amicus brief, Professor Stephen Sachs argues that consent-by-registration statutes do not run afoul of the Due Process Clause. But he argues that such statutes may violate the dormant Commerce Clause. He thus urges the Court to vacate the decision below and remand for consideration of the dormant Commerce Clause Issue.

At first glance, Mallory appears to be one of the term’s least sexy cases. But it may turn out to be one of the most important cases for the Court’s constitutional hermeneutics. Oral argument is scheduled for Tuesday, November 8, and The Federalist Society will host a Teleforum on Tuesday, November 15 at 2 p.m. EST to discuss the argument.