In Mallory v. Norfolk Southern Railroad, the Supreme Court held that a Pennsylvania statute that requires corporations doing business in the state to register and submit themselves to general personal jurisdiction does not violate the Fourteenth Amendment’s Due Process Clause. The vote was 5-4 with strange bedfellows on both sides: Gorsuch writing for Thomas, Alito, Sotomayor, and Jackson; Barrett writing for Roberts, Kagan, and Kavanaugh. “General” personal jurisdiction means the suit does not have to have any connection to the corporation’s activities in Pennsylvania, and that is what happened here: Mallory is a Virginia resident who was allegedly injured by Norfolk Southern in Ohio and Virginia; Norfolk Southern is incorporated and headquartered in Virginia; nonetheless, Mallory sued Norfolk Southern in Pennsylvania.

In recent cases, the Court had said that states cannot exercise general jurisdiction over corporations unless they are “at home” in the state—e.g., incorporated or headquartered there. But the Court said that this case was different because the company consented to general jurisdiction when it registered in the state. Implied consent statutes were common in the 19th century, and the case presented the possibility that a newly-originalist-friendly Court would return personal jurisdiction jurisprudence to the Pennoyer v. Neff era, where formalities like presence and citizenship as well as fictions like implied consent comprised the basis of jurisdiction, rather than the tests familiar to 1Ls today: “purposeful availment,” fairness factors, and “at home,” all spawned by a 1945 case called International Shoe v. Washington.

But that didn’t happen. The Court largely rested on precedent: a 1917 case called Pennsylvania Fire v. Gold Issue Mining that had never been explicitly overruled after International Shoe. The Court said that Pennsylvania Fire was not inconsistent with International Shoe because International Shoe only expanded not contracted traditional bases for jurisdiction, leaning heavily on a similar move made by Justice Scalia in a case called Burnham v. Superior Court of California, which affirmed that merely serving process on someone in a state could confer general jurisdiction.

Justice Alito joined the Court’s reliance on Pennsylvania Fire but wrote a concurring opinion explaining that he thought Pennsylvania’s law might very well run afoul of the Dormant Commerce Clause insofar as, on the one hand, it burdened interstate commerce to require companies to defend unrelated suits in a state as a condition of doing business, but, on the other, there was no countervailing state interest in adjudicating suits completely unrelated to the state. In dissent, Justice Barrett thought that Pennsylvania Fire had been all but overruled by the post-International Shoe jurisprudence.

In light of Justice Alito’s concurrence, it is unclear how much longer Pennsylvania’s statute is for this world. Even if it survives, Pennsylvania is the only state with a statute like this (although Georgia’s has been similarly construed by judicial interpretation), and it is not clear how many states will want to emulate Pennsylvania. As such, the more interesting development here is that we will all have to wait for another day to see if originalism will reorient personal jurisdiction (and perhaps other areas of civil procedure, which, as Mila Sohoni has noted, has been largely neglected by originalist analysis).

On that point, I was surprised how difficult it was to answer the originalist question in this case (which may explain why the Court largely rested on precedent): although implied-consent registration statutes were common in the 19th century, very few of them had been interpreted to extend to cases that had no connection to the forum state at all; Justice Barrett said the first one was in 1882, which post-dated the Fourteenth Amendment by over a decade. Moreover, it is not clear that the original understanding was that the Constitution would police these questions to begin with. The rules meting out which state would adjudicate which disputes may have been understood to come from common law comity principles (which Steve Sachs calls “general law”). And, as Will Baude, his general-law-co-conspirator, has noted, how to translate pre-Erie common law thinking to our post-Erie world is a difficult question for an originalist.

Thus, the originalist revolution will have to wait, not only for another case, but perhaps for more refinement about what the original understanding is to begin with!

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