Courthouse Steps Oral Argument: Mallory v. Norfolk Southern

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Chayila Kleist:  Hello, and welcome to The Federalist Society’s webinar call. Today, November 15, 2022, we host a post-Oral Argument Courthouse Steps on Mallory v. Norfolk Southern Railway, which was argued last week before the Court. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call, as The Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I’ll keep my introduction of our speaker, but if you’d like to know more, you can access his full bio at fedsoc.org.

 

Today, we are fortunate to have with us John Masslon, who’s Senior Litigation Counsel at the Washington Legal Foundation. He previously served as Assistant Solicitor General for the State of West Virginia, where he regularly practiced before both state and federal appellate courts. Additionally, and perhaps most pertinent to this event, he filed an amicus brief in this case on behalf of the Washington Legal Foundation and was present at the hearings of Mallory. He now joins us to give his breakdown perspective on how those went and what we can perhaps expect as this case moves forward.

 

One last note, throughout the panel if you have any questions, please submit them through the question-and-answer feature so that our speaker will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Mr. Masslon, the floor is yours.

 

John Masslon:  Thank you to The Federalist Society for having this Courthouse Steps program in what will almost certainly turn out to be the most important business case of this term. Today, I will give a brief overview of the case and the legal issue involved and will then summarize the oral arguments that occurred last week. At the end, there will be plenty of time for questions. Of course, all the views I express today are my own and do not necessarily reflect the views of Washington Legal Foundation, which filed an amicus brief both at the Supreme Court and before the Superior Court of Pennsylvania before the case was transferred to the Supreme Court of Pennsylvania.

 

Mallory is a Virginia resident who worked for Norfolk Southern in both Virginia and Ohio. Norfolk Southern is incorporated in Virginia, and when Mallory sued, it was headquartered in Virginia. It’s since moved its headquarters to Atlanta, Georgia. At oral argument, Ashley Keller, Mallory’s attorney, conceded that there was no connection between the injuries that Mallory suffered and Pennsylvania. Still, Mallory sued Norfolk Southern in the Court of Common Pleas of Philadelphia County, Pennsylvania.

 

In this complaint, Mallory argued that the court had personal jurisdiction over Norfolk Southern because it had registered to do business in the commonwealth. Under Pennsylvania’s long-arm statute, any company that registers to do business in the commonwealth is subject to general jurisdiction in Pennsylvania. The Court of Common Pleas found that this statute violates the Due Process Clause of the Fourteenth Amendment, and the Supreme Court of Pennsylvania affirmed that holding. The Georgia Supreme Court, however, reached the opposite conclusion about a similar Georgia statute until the Supreme Court grants certiorari to resolve this split in authority.

 

Personal jurisdiction is the power of a court to entertain claims against the party. There are two types of personal jurisdiction—general and specific. Specific jurisdiction covers a narrow class of claims. To be subject to that kind of jurisdiction, the defendant must take some action by which it purposely avails itself of the privilege of conducting activities within a foreign state, and the plaintiff’s claim must arise out of or relate to the defendant’s contacts with the form. Again, Mallory concedes that he cannot satisfy the second part of this test here, and so he does not argue that Pennsylvania can exercise specific jurisdiction over Norfolk Southern.

 

General jurisdiction, on the other hand, is the power of a court to hear a case against a defendant for claims that arose anywhere in the world. It is a significant power, and the Supreme Court has said that it may be exercised by states only where the defendant is at home. For real persons, that means their domiciles,  so wherever you live, somebody can sue you there for an action you’d take anywhere in the United States or even worldwide. For corporations, they’re at home in their state of incorporation and the state where they are headquartered. Of course, here, Norfolk Southern is neither incorporated nor headquartered in Pennsylvania. Still, Mallory contends that Pennsylvania courts can exercise personal jurisdiction over Norfolk Southern because, unlike subject matter jurisdiction, parties can consent to a court’s exercise of personal jurisdiction. He contends that Norfolk Southern consented by registering to do business in Pennsylvania. That is why this is called a consent by registration case.

 

Ashley Keller argued first for Mallory and did a really great job. It was one of the best oral arguments I’ve heard in recent terms. He had a very interesting opening in which he attacked big business wholesale. His argument was that these big businesses are seeking to twist originalism so that they get the result that they want and that they’re not being true originalists. On merits, his argument was three prong. First, he had precedent on his side. He pointed to the Supreme Court’s 1917 decision in a case called Pennsylvania Fire, which upheld a very similar statute also out of Pennsylvania.

 

Chief Justice Roberts pressed him on this reliance as he noted that Pennsylvania Fire was decided in the Pennoyer era, and as Justice Scalia said in Daimler, another recent personal jurisdiction case, “Cases from that era are no longer good law.” So Chief Justice Roberts asked Keller whether International Shoe implicitly overruled Pennsylvania Fire. Unsurprisingly, Keller argued that the two cases could exist together. He couldn’t really explain why. He just said to force the other side to show a case where Pennsylvania Fire was explicitly overruled.

 

Keller then tried to tie this to Justice Scalia’s opinion in Burnham and argued that Burnham supports Mallory’s argument. In Burnham, the Court upheld “tag jurisdiction,” whereby if a real person is served process in a state, then that state can exercise jurisdiction over the person for the claims. That means that, for example, if I take a vacation to South Dakota and I am served process in South Dakota for a claim that did not arise in South Dakota, the Court could still exercise personal jurisdiction over me. Keller’s argument was that, if the tag rule survived International Shoe, which Burnham shows it did, then so too for Pennsylvania Fire, that Pennsylvania should also -- Pennsylvania Fire should also survive International Shoe.

 

Now, this words, he was arguing that, if it’s good enough for natural persons, it is good enough for corporations. He returned to this point about treating corporations and natural persons again and again throughout the argument. He argued that it should make no difference whether a person is birthed by a mother in a hospital or is created by filing a piece of paper in the Secretary of State’s office. In both cases, a person—for purposes of the Constitution—has been created, and they have rights under the Fourteenth Amendment’s Due Process Clause. He was essentially trying to argue that the Court’s precedent treats the two types of persons equally in other contexts and the Court should do so too here.

 

Some justices had problems with this framing because of the inherent difference between corporations and individuals—for example, natural persons only present in one state at a time where they can be tagged for jurisdictional purposes in all 50 -- where they can be tagged for jurisdictional purposes. Corporations, on the other hand, can exist in all 50 state simultaneously. So Justice Alito had a good quip when he asked justice -- when he asked Keller, he said, “Can a person be in all 50 states?” And, of course, Keller said, “Well, of course not.” And Justice Alito was trying to make the point, “Well, a corporation can be present in all 50 states, so it makes no sense to treat them the same as a natural person with respect to tag jurisdiction.”

 

Justice Kagan also pushed back on Keller, saying that it seemed hard to say that Norfolk Southern consented to anything. All it did was file a piece of paper registering to do business in the state. But Keller pointed out that ignorance of the law or contractual provisions is never an excuse, and it shouldn’t be so here either. Unsurprisingly, he mentioned arbitration clauses and that consumers don’t really read those clauses, but they’re still bound by them when they sign an agreement. As for history, Mr. Keller argued that a great number of statutes from around the time of the Fourteenth Amendment’s ratification permitted consent by registration. So he argued that the original meaning of the Due Process Clause clearly permits Pennsylvania’s long-arm statute.

 

Most of Mallory’s brief was dedicated to making this argument, which was absent throughout the briefing before the Pennsylvania courts. It was only when Keller Postman got involved in the case at the cert stage that they start to make these originalism arguments. Justice Kagan noted that these types of statutes were a result of the Court’s old personal jurisdiction precedent. They were necessary under the Pennoyer presence framework in a way that are not necessary under a post-International Shoe contacts framework. Keller’s response to this was that the Court’s precedent shows that formality matters and that the formalities then and now are the same and so, therefore, that Pennsylvania Fire should still survive International Shoe.

 

Some justices seem skeptical of this historical argument. Justice Thomas, for example, began the questioning by asking how many historical statutes there needed to be for history to support he argument. Keller did not provide an answer but just said that there are so many here that there is no question that the history of such statutes support general consent by registration jurisdiction. Justice Barrett, however, questioned whether many of those statutes that Mallory cited in his brief actually were about general jurisdiction or whether they were about specific jurisdiction. Keller’s response to this was that specific jurisdiction was unknown to the law in the 1860s and 1870s. So everything back then was really general jurisdiction. In the end, this might be the issue that decides the case. How does Justice Barrett view the nineteenth century statutes that Mallory relies on?

 

Responding to Justice Thomas’s questions, Keller also agreed that there was a lack of foreign-cubed cases. This is such a case, a foreign-cubed case. So what a foreign-cubed case is is it’s a case where the plaintiff is from outside the state, the defendant is outside the state, and the incident or the injury arose from an incident that occurred outside of the state. But Keller said this was just a result of the modes of transportation at the time. Potentially, he was arguing that it’s too hard to seek a good form to file where it is much easier today to go about and find a good form to file your lawsuit.

 

Justice Kagan then asked Keller about whether a corporation has a right not to be hailed in the court in another state in which it does not do business and has not consented to jurisdiction. Keller conceded that businesses did have that right, and so Justice Kagan followed that up with saying, “Well, that means that we’re in an unconstitutional condition’s territory.” Keller conceded that he doesn’t understand the Court’s unconstitutional condition jurisprudence, but as Justice Kagan noted, “No one else does either.” Essentially what that jurisprudence says is that a state cannot condition your exercise of a constitutional right in a manner that unduly burdens that right. And here, what Norfolk Southern is arguing is that it’s an unconstitutional condition to say that, in order to maintain your constitutional right not to be hailed in the Pennsylvania courts, you have to agree to general jurisdiction in Pennsylvania.

 

Keller’s response was that the states could shut down the markets totally, and so therefore, states have the power to shut down a company from operating in the state’s absent consent to general jurisdiction. Well, Justice Kavanaugh, however, noted that this now permitted under the Dormant Commerce Clause. That ties into an amicus brief that Steve Sachs filed in the case, which argued that Pennsylvania’s statute does not violate the Due Process Clause but might violate the Dormant Commerce Clause. I was a bit surprised that Steve’s brief was only mentioned a few times throughout the oral argument. However, the Dormant Commerce Clause did feature prominently about whether Pennsylvania statute burdened interstate commerce in a manner that violates the Dormant Commerce Clause.

 

Another part of the unconstitutional conditions argument is that there must be proportionality between the condition and the state’s interest involved. Keller argued that the interest here for states with the fact that they have open courts provisions in their constitutions and want to give residents of other states the ability to sue for wrongs. It’s a very creative argument, but some justices noticed it seems odd to say this state can have a sovereign issue about a foreign-cubed case. Really, what’s the interest in Pennsylvania in ensuring a Virginia resident gets redress for injuries against a Virginia corporation that occurred in Virginia? Virginia actually filed an amicus brief in this case along with a few other states joining that argued that the Pennsylvania Supreme Court’s decision was correct and that the Pennsylvania long-arm statute violates the Due Process Clause.

 

Pennsylvania did not appear in this case, nor did any other state, to argue that they have a sovereign interest in these types of long-arm statutes, which is kind of interesting and was a point that was brought up by a couple of justices in the case that, if they really do have this sovereign interest, why hasn’t the state appeared as an amicus either here or before the Pennsylvania Supreme Court and argued that they have that interest? Just a quick aside, under Pennsylvania law, the Attorney General was notified of this case when it went to the superior Court of Pennsylvania, and he chose not to go ahead and participate in the argument.

 

Keller returned to history and tradition and why that was on his side. In the end, that’s really his argument, that you should ignore the more recent personal jurisdiction, general jurisdiction cases and that you should look to the original meaning of the Fourteenth Amendment’s Due Process Clause. In that case, Keller argues that that history supports keeping Pennsylvania Fire and allowing consent by registration of statutes.

 

Carter Phillips was next up arguing for Norfolk Southern. Out of the gate, Justice Alito asked him why corporations and individuals should be treated differently under Burnham. His response is that they come from two different traditions. Tag jurisdiction has been recognized time and memorial, while these consent by registration statutes are a newer invention. A necessary part of this argument was that the statute cited by Mallory did not support consent by registration. Rather, Phillips argued that they were -- today, we were called specific jurisdiction. He made the argument that it doesn’t matter what term was used back in the 1860s or 1870s, what you need to do is look at the historical practice as a functional matter rather than a formalistic matter. And he argued that, when you look at it in that way, you’ll see that these statutes all dealt with specific jurisdiction.

 

Justice Gorsuch pushed hard on this point and really wasn’t satisfied by Phillip’s answer. He seemed to believe that Burnham was dispositive and that was the end of the story because corporations and natural persons should be treated the same under the Fourteenth Amendment’s Due Process Clause. And as you might have picked up on, this case really cuts across ideological lines—and I’ll get to that more at the end—but you will see that there are justices on both sides that cross what you typically see as the 6-3 divide in this case.

 

Phillips then returned to the point about the difference between an individual being present in only one state and a corporation being present in all 50 states. He said that although Norfolk Southern is a big business in can handle litigation in multiple forms, the decision is not going to be limited just to Fortune 500 companies, rather that the decision will have implications for smaller businesses too. For example, a company based in Maine that has never shipped something to Pennsylvania but has registered to do business there just in case it wants to ship something to Pennsylvania would be subject to general jurisdiction in the commonwealth if the Court were to reverse the Supreme Court of Pennsylvania. Phillips argued that this didn’t make any sense.

 

Getting to the question of consent, which was a focus of Phillips’s argument, he said that registering to do business in a state is not the same as what we normally think of as consent. There’s no voluntary decision by a business to consent to general jurisdiction in a state in return for registering to do business there. He made an analogy to forcing someone to sign a contract at gunpoint. No one would say that is consent in the way we think about it. The same is true of having a company register to do business in a state. There really is no choice. That’s particularly true in this case. There was an amicus brief by the Railroads Association that talks about how, under federal law, Norfolk Southern can’t choose just to pull out of Pennsylvania. It's actually forced to do business in Pennsylvania. But particularly in this case, Norfolk Southern doesn’t have a choice but to do business in the Commonwealth of Pennsylvania.

 

The discussion then turned to Insurance [Corporation] of Ireland, which is a case about jurisdiction to impose sanctions under Rule 37 of the Federal Rules of Civil Procedure. Phillips argued that Insurance Corporation of Ireland set forth the different ways that people can consent to personal jurisdiction. He noted that consent by registration is not one of those ways listed in the Insurance Corporation of Ireland and, because the list is exhaustive, there was no consent here by registering to do business in the commonwealth. An interesting discussion ensued following the question from Justice Thomas about whether Norfolk Southern could consent ahead of time to general jurisdiction in the commonwealth.

 

Phillips first argument was that, no, there was no way for Norfolk Southern to consent to jurisdiction before suit was filed. But his fallback position was that, if there were no pressure exerted by the state, then it might be possible for a company to do business -- for a company to consent to general jurisdiction by registering to do business. There was an interesting example—I forget which brief it was in—but one of the briefs talked about how, for example, you could have two pieces of paper, and then one is blue, and one is white. And, if you follow the white paper, if you register to do business on the white paper, you’re not consenting to general jurisdiction in the state. But if you follow it on the blue paper, you are consenting to general jurisdiction in the state. And, as long as there is no inducement to file that piece of blue paper, it seems like there’s no reason that shouldn’t be permitted.

 

Justice Barrett’s questioning of Phillips focused on the line as far as these unconstitutional conditions goes. So she gave a hypothetical of a state offering a tax break to a corporation if it consents to general jurisdiction in the state. Is that an unconstitutional condition? Or what happens if it waives its corporate registration filing fee if a corporation agrees to general jurisdiction in the state? Is that enough? Chief Justice Roberts also asked one of these line-drawing questions of Ashley Keller about giving money to a different corporation. And Phillips had a tough time answering these questions. In the end, he just said that if the benefit’s too coercive, that it violates the unconstitutional conditions doctrine. Much like the other areas where it’s impossible to draw a bright line, he said the Court could decide on a case-by-case basis whether a condition was unconstitutional or whether it was permissible.

 

Justice Kagan really didn’t like Phillips’s answer on this question. She believed that a tax break is not an entitlement, that it’s more like a contract where one makes an exchange. So she was arguing that the tax break is the line and what matters is, is did you have an anteceding constitutional right that is being taken away by the condition? Here, you had the anteceding constitutional right of not being hailed into court, and the state isn’t -- you’re not entitled to anything. You are entitled to something where you’re not entitled to a tax break. So she was arguing that there is a difference there. And Phillips essentially said that, well, that’s not this case, but he can see that point and really wasn’t willing to fight on whether these tax breaks would be sufficient for a corporation to consent to general jurisdiction by registering them.

 

Justice Sotomayor asked about how there could be coercion here because Norfolk Southern does so much business in Pennsylvania. It’s actually where they have the most track nationwide. Phillips responded that it doesn’t matter because the question is where Norfolk Southern is at home, and it’s not at home in Pennsylvania. Sotomayor admitted she just doesn’t accept the Court’s precedent on that issue about general jurisdiction and where corporations are at home. Phillips also pointed out that this is a railroad case again, like I mentioned, this is where he did, again, go back to railroads are different and we don’t have a choice but to pull out, so we’re really not home at here. We’re just operating here because we have to.

 

Justice Gorsuch then asked a question about foreign-squared situations. I previously talked about foreign-cubed. A foreign-squared situation is where the defendant and the incident happened outside the state but the plaintiff is in state. So, for example, a Georgia resident, can a Georgia resident sue a Florida corporation for conduct that occurred in Florida in Georgia state court? Phillips said that the constitutional problems with foreign-squared cases are the same with foreign-cubed, that they both violate the Due Process Clause, but that all parties would need to do more research and briefing on that issue as here they were pretty focused on the foreign-cubed situations because that’s what happened in Mallory.

 

As Keller said in his argument however, Cooper Tire is -- which is the Georgia Supreme Court case I mentioned earlier, it is a foreign-squared case. And, so, the Court’s going either have to address that case here or possibly in Cooper Tire if it grants that after it decides Mallory or even just tell the Georgia Supreme Court to reconsider it in light of Mallory. But if the Court does draw a distinction between foreign-squared and foreign-cubed, it’s going to eventually have to decide the foreign-squared question.

 

Deputy Solicitor General Curtis Gannon argued as amicus for the U.S. supporting Norfolk Southern. Justice Jackson started off the questioning of Gannon. She seemed a bit confused about the parameters of the Pennsylvania statute and how the railroad industry works. She really didn’t get that this registering to do business, as long as you register to do business, it doesn’t matter whether it’s interstate commerce or intrastate commerce, you’re consenting to do general -- you’re consenting to general jurisdiction. And she didn’t get that, as a railroad, you can’t just pull out of a state, that there’s federal law trying to do that.

 

What Gannon’s analogy was though was he pointed her back to Birchfield v. North Dakota, which was a Fourth Amendment case from a few years ago. There, the Court said that you can’t force someone to consent to a blood draw just because they wanted to drive on the state’s roads, so too here where the state cannot force you to consent to general jurisdiction in the state just because you want to do business there. Gannon was able to articulate particularly well why foreign-squared cases should be treated the same as foreign-cubed cases. In short, allowing for foreign-squared cases were to allow workaround, whereby a state could exercise jurisdiction over an out-of-state corporation but did everything possible to avoid availing itself of that state’s laws just because a single resident traveled and then was allegedly injured by that corporation’s actions.

 

After argument, it appears almost certain that we will have split of both the conservative and liberal blocs, as I mentioned. I believe that there’s a good chance that we’ll get a 5-4 decision here with Justice Barrett providing the decisive vote. It’ll be a fascinating decision, not just because of the personal jurisdiction issues in the case, but also because of the collateral issues about the Dormant Commerce Clause and originalism about how you interpret these statutes and cases around the Fourteenth Amendment’s ratification that permeate throughout this case. And, so, with that, we’ll move onto any questions that you might have.

 

Chayila Kleist:  Well, thank you for that presentation. As we’re waiting for audience questions to come in—and as a reminder, you can do that via the Q&A feature at the bottom—I do have a couple of questions that I would love to pose. You sort of gotten to it towards the end of your presentation, but I’m wondering what the implications of this case are if the Court finds in Mallory’s favor? What can change regarding the scope of state courts’ jurisdiction over in-state companies and if there are any -- sets a precedent or current cases pending especially that would be affected by such decision?

 

John Masslon:  I’ll start with the latter point first. Yes, of course, there is the Cooper Tire decision. And there’s been a run of these cases in recent times. Cooper Tire’s the only one, the Supreme Court of Georgia, that went the other way. But you also, for example, had a decision from the New York Court of Appeals that went the same way as the Pennsylvania Supreme Court here. You had a Third Circuit decision. You had a Second Circuit decision. There’s a lot of these cases.

 

But, as far as the implications of this case goes, there’s actually some debate about that at oral argument which was interesting. So everyone agrees that Pennsylvania statute is a bit unique. The reason was is that Pennsylvania in 1978 updated its long-arm statute. It kind of modernized the statute. So it doesn’t read much like any other state’s long-arm statute. And, so, some justices were trying to push the point that, if this statute is struck down here, it will be limited just to Pennsylvania. However, other justices were talking about how that, if they were to uphold the Pennsylvania statute here, that although not all 50 states would enact similar statutes, there’s definitely the possibility and probably the likelihood that you will see a significant number of states pass similar long-arm statutes.

 

And, so, therefore, you might have a corporation that, if they’re doing business nationwide, they will have to consent to general jurisdiction in say 25 different states. And that might not be a problem in many states. But as we all know and was discussed at oral argument, there are a lot of places, which as one lawyer said is one person’s judicial hellhole is another person’s nirvana. So you really don’t want to have all these cases that will be funneled into the same jurisdictions that are very plaintiff friendly, and that’s what you’ll see. We’ll see a state of cases being filed in Madison County, in the Court of Common Pleas of Philadelphia County, and in California, in places where it’s just unfriendly for businesses to operate. And, so, you’ll probably see in the end businesses either cut back where they’re doing business or possibly see prices rise because they’ll have to factor in this general jurisdiction in very plaintiff friendly areas.

 

Chayila Kleist:  Thank you. We do have a couple questions in the audience now. The first one is from Jack Fitzhenry, who asks if the Court can rule in Mallory’s favor but assuming that Pennsylvania has the right to exclude businesses from its territory.

 

John Masslon:  I think it can. I don’t that it would. I think that what would probably have to happen here is that you would have -- what I could see happening is where you would have maybe two or three justices that would believe that you can exclude business from the territory and so would vote to uphold the Pennsylvania statute because of that. And then you would have two or three justices that would go a different way and would kind of be like what Justice Sotomayor says, which is that “Hey, I believe that our personal jurisdiction, our general jurisdiction prudence is broken, and I believe that Norfolk Southern is kind of at home in Pennsylvania,” and so therefore upholds the statute on that basis. I don’t see how you can get to five votes in a manner that says that -- about this excluding businesses, that Pennsylvania can exclude it. But I do think that there’s a possibility that there’s no definitive holding, yet Mallory wins without that decision on excluding businesses.

 

Chayila Kleist:  Understood. Next question comes from Jeffrey Wood. He says thank you and asks if you think the Court would be able to avoid the full scope of the Fourteenth Amendment question at play here given that Norfolk Southern is required to do business in Pennsylvania.

 

John Masslon:  It’s interesting that none of the justices talked about the requirement to do business, that this is a railroad and, therefore, that they’re required to do business. I wouldn’t be surprised if that issue is just ignored here. But I do think that the Court is going to try to have a somewhat narrow holding here. I would not be shocked if, contrary to Mallory’s counsel’s pleas at the end and his rebuttal time, that you see a decision here that is limited to foreign-cubed cases or to the specifics of the Pennsylvania statute.

 

 One of the questions that Justice Kagan asked during argument and asked a couple times of both counsel was about the fact that the form that Norfolk Southern filed here with the Pennsylvania Secretary of State didn’t actually say, “I consent to general jurisdiction.” It was more you have to know the Pennsylvania statute to know that you’re consenting to general jurisdiction. So there was some discussion about how ruling that that practice violates the Due Process Clause leaving for another day whether a form that actually explicitly said you were consenting to do general jurisdiction would comply with the due process clause.

 

Chayila Kleist:  Got it. Our next question comes from Matt Kaminer. He asks, “If the Court rules in favor of Norfolk Southern, how would you expect the Court to handle Keller and Mallory’s originalist arguments in the opinion?  Would they address them or object them head on? Would they decline to take an originalist approach to procedural Due Process doctrines like personal jurisdiction and lean on the more recent general JDX cases like Goodyear and Daimler?”

 

John Masslon:  That’s an interesting question. I think there will be at least one opinion in the majority, even if it’s not in the majority from a concurrence, that would discuss this. And I think the way you do it is you say that all these statutes from around the 1860s and 1870s really were just about specific jurisdiction. And that’s the argument that Norfolk Southern makes strongly in its brief about how these statutes were just different in the 1860s and the 1870s, and so, therefore, we just dispose of them because we say the history doesn’t support it, and it actually supports the other side. And there is, I think, two cases that Norfolk Southern cites, where it says that the history supports it with respect to general jurisdiction and consent by registration. And, so, I think the Court would just take those.

 

But I do think that the most likely outcome is that the majority opinion will just focus more on the Court’s more recent personal jurisdiction decisions. And what you’ll see is something that says that Pennsylvania Fire was implicitly overruled by International Shoe and that under Daimler and Goodyear, the more recent cases, that that’s the end of the inquiry.

 

Chayila Kleist:  Okay. Next question. Another of our attendees asks, “Why would the Supreme Court consider historical arguments that weren’t presented to the Pennsylvania courts?”

 

John Masslon:  So this was actually an issue that I briefed, and I argued that the Court shouldn’t do it. But the reason they will do it is because there’s a doctrine that it’s only the argument that has to be made and not specifically the different grounds. There’s a difference between the argument and the grounds. Here, although they didn’t make this argument before the Pennsylvania Supreme Court about the originalism, they did make the argument that the Due Process Clause permits these types of long-arm statutes and that’s why the Court’s going to eventually seriously consider the originalism arguments that Mallory makes.

 

Chayila Kleist:  Got it. Next question from Jeffrey Wood again. “In the 1860s and ’70s, weren’t railroads among the few businesses that did have broad ranging multi-state operations, and therefore wouldn’t that fact support the validity of the long-arm statute specifically in this case?”

 

John Masslon:  I don't know if that’s necessarily true. So they did have businesses that would go throughout the country. However, what was really at issue in these 1860s and 1870s statutes was appointing an agent for service of process in a state, and then that agent had to accept any type of process that were served within the state relating to the activities that occurred there. So really, it wasn’t a case where -- and as Keller made the point at oral argument, it wasn’t the case where you had a railroad going through New Hampshire and somebody would sue for -- a Georgia resident wasn’t going to sue in New Hampshire court just because that railroad ran all the way up and down the East Coast and eventually was in Georgia and was registered to do business there.

 

If the case was a Georgia resident against a Georgia corporation for a basic tort that happened in Georgia, why would they file suit in New Hampshire? That would be a significant expense to travel up to New Hampshire to sue, and therefore, it really doesn’t, I think, make a difference for this case that the railroads were operating across the country. The fact was that these 1860s and 1870s statutes were dealing with conduct that occurred within the state.

 

Chayila Kleist:  Got it. Posing another question from the chat. “If the Court rules in favor of Mallory, is it possible to get a holding broad enough to include nonprofits that are subject to charitable solicitation registration? Similarly, would there be effects for online vendors, which could be small businesses, but do have to register in a particular state?”

 

John Masslon:  I’ll take the second part first. There’s definitely that concern. I raised the issue in my brief and talked about how you could have a small mom-n-pop business operating out of a basement selling stuff online. They might have to register to do business in many states and, therefore, subject to general jurisdiction. Justice Alito then raised the question when he was asking Keller some questions about the implications of ruling in favor of Mallory. And he noted that, again, this might not be an issue for Norfolk Southern, but it is certainly an issue for smaller corporations. Again, they talked about this duck business in Maine that would want to ship stuff to Pennsylvania, and so, therefore, it could have a very broad ranging impacts on these small businesses.

 

As far as the nonprofits subject to charitable solicitation registration, it’s an interesting question. I think that would be an even harder case to make for general jurisdiction. But I could see that the plaintiffs’ bar making the argument that if you were to uphold such a statute here in Mallory that you could do the same thing to nonprofits. Again, I don’t think that they’re exactly analogous in that the nonprofit would have some arguments. But I think that the plaintiffs’ bar would have a much better shot after a ruling for Mallory than it would right now.

 

Chayila Kleist:  Got it. Our next question comes from Matt Kaminer. He asks, “Do you have any thought on what seems to be an ideological shift in Justice Thomas’s area of law? Justice Thomas was in the majority of Goodyear, Daimler, and BNSF, all of which seem to have narrowed the scope of general jurisdiction and then joined Justice Gorsuch concurrence in Ford, which called in pretty much all the courts PJ jurisprudence into question?”

 

John Masslon:  I think Justice Thomas is the justice on the Court who’s most likely to reconsider his prior decisions. We saw that in his concurring opinion in—I think it might have been the denial of a cert petition—but dealing out of Puerto Rico this double jeopardy question about the separate sovereigns doctrine. And he had called that into question in a concurring opinion on the -- it wasn’t a merits case. But then, once the case got granted, he changed his mind and said, “You know what? I was wrong about that.”

 

I just think that he might be looking at more the way he is reading the originalist research or the research that is been done in the area recently—it might be the Steve Sachs research; it might be other research—where he’s just said that - or the stuff that Justice Gorsuch has pointed out, another really strong originalist on the Court, where Justice Thomas just might be having second thoughts about his previous decisions. And I admire that about him, that he’s not one who’s going to say, “I made this decision. I’m going to stick by it even if proven to be wrong.” If he thinks he might have made a mistake in an area, he is more than willing to admit that moving forward.

 

Chayila Kleist:  Got it. Thank you. Pulling a question myself, I know you mentioned this a little bit earlier, but it’s -- and it’s the opposite of what I asked at the beginning. As we look at what the possibilities are, if the Court rules in line with Norfolk Southern Railway’s argument, what changes regarding the nature of how states can regulate businesses that do business in their borders, if anything?

 

John Masslon:  I think there’ll be -- it might depend on how they get there, how the Court gets there. It will be interesting to see whether there’s a discussion about the rights of states to exclude businesses from their territories. If the Court does have a discussion upon this antecedent right, it might broaden businesses’ rights to operate in other states. Carter Phillips made the argument about Tennessee Wine and Spirits from a few years ago and the rights that were discussed in that case of businesses to operate interstate, but that right might expand even further if the Court were to go into that.

 

It also could have implications if they go down the unconstitutional conditions pathway, if they discuss other types of conditions that might be called into question that right now businesses might be subject to in different states where they have some kind of burden placed on their exercise of constitutional rights to do business there. And if the Court calls those into question, you might see a whole new round of litigation about whether those statutes are constitutional.

 

Chayila Kleist:  Got it. Another question—and you mentioned this briefly in saying this, they don’t rely on this amicus brief, or the states didn’t raise this argument—but what are some of the arguments that could have been made on either side that were not raised during oral argument?

 

John Masslon:  There was some brief talk in argument—but only by Justice Sotomayor—but none of the advocates about some kind of unconstitutional taking that is occurring here. I really haven’t looked into that or into that issue, but I know she mentioned it at least two or three times about how this might be an unconstitutional taking. That seems odd to me, but again, that issue really wasn’t explored. It was also interesting, there was no exploration of the argument that Virginia made in its amicus brief about how this violates horizontal federalism principles in so much as Virginia has an interest in resolving disputes between Virginia residents over an incident that occurred in Virginia. But there was no real discussion about why should Pennsylvania be able to intrude upon Virginia’s territory for deciding these disputes. So it’s another area.

 

And, again, I said the argument that Steve Sachs is making in his amicus brief is that there’s a real Due Process problem here. He argues that the Due Process Clause permits these type of consent by registration statutes. But he contends that it might violate the Dormant Commerce Clause. So he urged the Court to vacate the Supreme Court of Pennsylvania’s decision and remand for that court in the first instance to decide the Dormant Commerce Clause issue.

 

Chayila Kleist:  Got it. Well, as we approach the end of our time, assuming we get no more questions in the chat, are there any -- is there anything else you think is important as we watch this case moving forward? I know you’ve mentioned it’s likely to be a 5-4. Do you have a perspective—I won’t hold you to it—of how it will be ruled, and then what should we pay attention to as we continue to watch this case?

 

John Masslon:  I do think it’s likely to be a 5-4. I think it’s likely to be a 5-4 affirming the Supreme Court of Pennsylvania’s decision and finding that this statute does violate the Due Process Clause. I think a few things to watch are is there any more movement away from the Court’s reliance on the Due Process Clause for these jurisdictional issues in separate writings, whether there is any discussion about the foreign-squared issue or whether the Court’s going to leave that for another day in Cooper Tire. And then also I think about the Dormant Commerce Clause. How much discussion do we have there, and how much of that do we see tied into the other case this term where the Court is considering similar issues regarding the regulation of interstate businesses in national pork producers?

 

Chayila Kleist:  Got it. Well, thank you so much for your time. We really appreciate it. On behalf of The Federalist Society, I want to thank you for the benefit of your valuable time and expertise today. I’m going to thank our audience for joining and participating. We welcome listener feedback by email at [email protected]. And, as always, please keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We’re adjourned.