Personal Jurisdiction After Mallory: Beyond International Shoe
Christopher R. Green, Professor of Law and Jamie L. Whitten Chair in Law and Government, University of
Mississippi School of Law
Mallory v. Norfolk Southern Railway clarifies that consent extracted by states as a condition of doing business is sufficient consent for personal-jurisdiction purposes under the Due Process Clause of the Fourteenth Amendment, and that Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co. (1917) survives International Shoe v. Washington (1945). Mallory involved a Virginia plaintiff, Virginia defendant, and Virginia subject matter, but a Pennsylvania statute demanding consent to general jurisdiction as the price of doing business in the state. The Pennsylvania courts struck their own statute down, but the Court revived it.
International Shoe, of course, is the case much-beloved by Civil Procedure students holding that a court has personal jurisdiction over a defendant if that defendant has had “minimum contacts” with the forum, such that resolving the dispute would be consistent with “traditional notions of fair play and substantial justice.” Unlike subject matter jurisdiction—a court’s power over the substance of a controversy—personal-jurisdiction rights may be waived, so consent by a party has always been one way for a court to obtain power over a defendant. But does that include consent demanded as a condition of doing business in a state? Demands like that used to be much more common, and were approved by the Supreme Court in Pennsylvania Fire under the Pennoyer v. Neff regime that preceded International Shoe. Does Pennsylvania Fire survive in the world of International Shoe, and in a world where Pennsylvania is the only state left that does it?
Contrary to my prediction from last December, Mallory says yes, in an unusual 5-4 lineup. Justice Gorsuch wrote for himself and for two of the other more conservative justices, Thomas and Alito, as well as two more liberal justices, Sotomayor and Jackson. The dissenting justices in Mallory were justices in the middle of the Court on most hot-button issues: Justice Barrett writing for herself and for Chief Justice Roberts and Justices Kagan and Kavanaugh. Justice Alito wrote a concurrence expressing very strong reservations about the consent-extracting law on Dormant Commerce Clause grounds, but agreeing with the majority on the due-process issue, though not with most of Justice Gorsuch’s reasoning.
From Norfolk Southern and the dissent’s perspective—but not the Court’s—the use of a defendant’s unrelated business in a state as an anchor for personal jurisdiction seemed like an attempt to relitigate three recent cases authored by Justice Ginsburg, from 2011, 2014, and 2017. Those cases held—one unanimously and the other two over Justice Sotomayor’s solo dissents—that the mere fact that a defendant does a lot of business in a state is not enough to support “general jurisdiction,” i.e., jurisdiction over a dispute that does not arise from that business. A defendant is only “at home,” and thus subject to general personal jurisdiction, in its state of incorporation or its principal place of business (absent very unusual circumstances like a war-based relocation). But Mallory holds that the existence of the state’s explicit trigger—its statutory statement that doing business would be construed as consent to unrelated-subject-matter litigation in the state—was enough, even though the business itself was not.
Because the Court decided that the Pennsylvania Fire issue is simply outside the International Shoe regime, it had no occasion to resolve the theoretical issue lingering ever since the Court’s unanimous upholding of “tag” jurisdiction in Burnam v. Superior Court (1990): are International Shoe’s “traditional notions of fair play and substantial justice” rooted in tradition, as Scalia would have held, or in fairness as such, as Justice Brennan thought? The Court in Burnham famously split 4-1-4, with Justice Stevens refusing to agree with either Scalia or Brennan. If the Court had thought that International Shoe governed, and that Justice Scalia’s tradition-based approach to procedural due process was the right way to go—just as the Court took a tradition-based approach to substantive due process in its gun and abortion cases from 2022—it seems likely that Norfolk Southern would have won, because Scalia’s opinion in Burnham stressed at the very end that if the “overwhelming majority” of states abandoned tag service of process, then “traditional notions of fairness” would change, and Pennsylvania is entirely alone in construing doing business in the state as consent to general jurisdiction. Justice Scalia did note much earlier in his opinion that 1868, when the Fourteenth Amendment was adopted, was “the crucial time,” and Justice Barrett’s Mallory dissent mentioned this point, without mentioning his later comment on future emergent traditions.
Finding out that International Shoe is not a general standard for personal jurisdiction, but only a supplement to other independent bases like consent, is a bit like what happened a decade ago in Fourth Amendment law. Most observers had thought that Katz v. United States (1967) had completely replaced a trespass-based understanding of unreasonable search and seizure with one based on a “legitimate expectation of privacy.” But in United States v. Jones (2012) and Florida v. Jardines (2013), the Court recast Katz as merely supplementing trespass-based Fourth Amendment claims with privacy-based ones. Similarly, Mallory recasts International Shoe as merely adding “traditional notions of fair play and substantial justice” to other grounds of personal jurisdiction like consent, rather than using that concept to characterize the entire field. Mallory makes clear that it’s not just International Shoe any more.
MEET THE AUTHOR
He is the author of Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (Routledge 2015),and the co-author with Scott Gaylord and Lee Strang of the six-volume Federal Constitutional Law textbook series, serving as the chief author of the volumes on the Fourteenth Amendment and on executive power.
Green’s publications cover all aspects of Fourteenth Amendment history, including the legitimacy of Reconstruction, the Privileges or Immunities Clause as a requirement of equal civil rights, the Equal Protection Clause as an entitlement to protection from violence, and the Due Process Clause as a guarantee for the rule of law. His articles on constitutional theory have given particular attention to distinctions from philosophy such as the sense-reference distinction, stakes-sensitive epistemology, the semantic conception of truth, indexicals, and the ethics of oath-taking.
He has been a visiting professor at the University of San Diego and the James Madison Program at Princeton University and is an Affiliated Scholar at the Center for the Study of Constitutional Originalism. Green practiced appellate litigation at Phelps Dunbar in Jackson, Mississippi, after clerking for Judge Rhesa H. Barskdale of the U.S. Court of Appeals for the Fifth Circuit. He has an AB from Princeton University, a J.D. from Yale Law School, and a Ph.D. in philosophy from the University of Notre Dame. His papers are available at ssrn.com/author=473949