The “springboard for our modern personal jurisdiction jurisprudence,”1 International Shoe Co. v. Washington2 was “‘canonical,’ ‘seminal,’ ‘pathmarking,’ and even ‘momentous’”3 — not to mention “transformative.”4 International Shoe held that a state court’s assertion of personal jurisdiction comports with the Fourteenth Amendment’s Due Process Clause5 when the defendant has “minimum contacts” with the forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”6 That requirement “ushered in” a new doctrinal framework.7 But did International Shoe, as Tocqueville said of the French Revolution, “tear open a gulf” between an ancien régime and a new order?8 Or did it leave the old house intact, using its “materials for the construction” of a new edifice?9 Last Term, in Mallory v. Norfolk Southern Railway Co.,10 the latter view narrowly prevailed. The Supreme Court upheld against due process challenge a state consent-by-registration statute, which required that corporations registered to do business in state also consent to general jurisdiction.11 In resolving a split between state high courts,12 the Court found the issue controlled by Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co.,13 a pre–International Shoe case.
Beyond blessing consent-by-registration statutes, Mallory reveals that the Court is divided between two readings of International Shoe: whether it dropped a guillotine on the traditional heads of personal jurisdiction or merely added to the antiqua domus. The fundamental disagreement underlying these readings explains the Mallory opinions’ disparate treatments of old chestnuts from the personal jurisdiction canon.14 And the latter reading’s narrow victory suggests the Court’s greater appetite for traditional answers to unresolved questions.
Robert Mallory worked for Norfolk Southern Railway Co. in Bruester, Ohio, and Roanoke, Virginia, for almost twenty years.15 As a carman, Mallory sprayed boxcar pipes with asbestos foam, was exposed to asbestos when ripping out train-car interiors, and handled asbestos and other carcinogens in the paint shop.16 In June 2016, Mallory was diagnosed with colon cancer.17 Alleging that his exposure to carcinogens while working for Norfolk Southern caused his cancer, Mallory sued Norfolk Southern under the Federal Employers’ Liability Act18 (FELA) for negligently failing to provide a safe workplace.19 Mallory resided in Roanoke, Virginia; Norfolk Southern was a corporation incorporated in Virginia with its principal place of business in Norfolk, Virginia; and Mallory’s exposure to asbestos occurred in Virginia and Ohio.20 Nevertheless, Mallory brought his action in Pennsylvania.21
Norfolk Southern moved to dismiss for lack of personal jurisdiction.22 It argued that it was not “at home” in Pennsylvania (as necessary for general jurisdiction), that its conduct in Pennsylvania had not given rise to Mallory’s suit (as necessary for specific jurisdiction), and that it had never consented to suit in Pennsylvania.23 Noting the two thousand miles of track, eleven rail yards, and three locomotive repair shops that Norfolk Southern operated in Pennsylvania, Mallory countered that it was required to register as a foreign corporation there.24 Pennsylvania law treated that registration as consent for Pennsylvania courts to exercise general personal jurisdiction over Norfolk Southern.25
The trial court granted Norfolk Southern’s motion to dismiss.26 It found no specific jurisdiction in Pennsylvania because the suit concerned Norfolk Southern’s conduct in Ohio and Virginia.27 The trial court reasoned that a state could exercise general jurisdiction over a nonconsenting corporation only where it was incorporated or maintained its principal place of business; Norfolk Southern did neither in Pennsylvania.28 Finally, the consent-by-registration statute presented a “Hobson’s choice” between consenting to general jurisdiction or not doing business in Pennsylvania, violating Norfolk Southern’s due process rights.29 Mallory timely appealed.30
The Supreme Court of Pennsylvania affirmed.31 Writing for the court, Chief Justice Baer32 held Pennsylvania’s consent-by-registration statutory scheme unconstitutional.33 The court noted that Pennsylvania’s scheme was unique in expressly conditioning foreign corporate registration on general jurisdiction.34 To assert general jurisdiction over Norfolk Southern would offend both federalism and the general jurisdiction framework furnished by Daimler AG v. Bauman35 and International Shoe.36 The court rejected on-point cases, pointing to language that discounted reliance on cases predating International Shoe.37 Acknowledging that personal jurisdiction can be waived and that Pennsylvania’s scheme provides notice that corporate registration constitutes consent to general jurisdiction, the court nevertheless found Norfolk Southern’s consent involuntary.38 And if every state had a regime like Pennsylvania’s, “every national corporation [would be] subject to the general jurisdiction of every state,” an unacceptable result.39
The Supreme Court reversed and remanded.40 Writing for the Court in some sections and for a group of four Justices in others, Justice Gorsuch41 held that Pennsylvania’s consent-by-registration statutory scheme did not violate due process.42 The majority reasoned that Pennsylvania Fire’s analogous facts controlled.43 In that case, an Arizona company (Gold Issue Mining) had sued a Pennsylvania company (Pennsylvania Fire) over a Colorado insurance contract in Missouri state court.44 Pennsylvania Fire had long complied with Missouri’s consent-by-registration regime that required foreign insurance companies to accept service in Missouri as a condition of doing business there.45 In a unanimous opinion, the Court upheld that scheme, reasoning that due process does not bar a state from conditioning corporate privileges on consent to general jurisdiction.46 Here, because Norfolk Southern had complied with Pennsylvania’s consent-by-registration scheme, Pennsylvania Fire dictated the outcome in favor of Mallory.47
Writing for himself and three other Justices, Justice Gorsuch traced how consent-by-registration statutes fit into the history of personal jurisdiction.48 Justice Gorsuch then elaborated on the group’s view that International Shoe had not overruled Pennsylvania Fire. To him, the “two precedents sit comfortably side by side.”49 The minimum-contacts test created in International Shoe did not supersede the traditional regime of consent, domicile, and service-based jurisdiction. Instead, International Shoe announced “an additional road” to jurisdiction over nonconsenting defendants without meddling with Pennsylvania Fire’s rule for consenting defendants.50 In general, International Shoe expanded rather than contracted the jurisdictional reach of state courts.51
Justice Gorsuch further explained that Pennsylvania’s assertion of jurisdiction over Norfolk Southern did not offend traditional notions of fair play and substantial justice anyway. Because of its “extensive operations” and advertisements in Pennsylvania, Norfolk Southern could reasonably anticipate being haled into court there.52 Federalism concerns could not save Norfolk Southern because it had legitimately consented to suit given that, as a sophisticated party, it “appreciated the jurisdictional consequences” of its actions.53
Justice Jackson concurred.54 She stressed that the personal jurisdiction requirement “is an individual, waivable right.”55 In her view, Norfolk Southern voluntarily waived its personal jurisdiction rights; Pennsylvania did not compel it to submit to general jurisdiction.56 And because criminal defendants can waive individual rights, it would be anomalous to put personal jurisdiction “on a pedestal.”57
Justice Alito concurred in part and concurred in the judgment.58 He agreed that Pennsylvania Fire controlled the case and that Pennsylvania’s assertion of jurisdiction over Norfolk Southern here did not violate its right to due process under the International Shoe standard.59 But Justice Alito expressed concern about the Due Process Clause becoming a “refuge” for principles such as interstate federalism that “would otherwise be homeless.”60 Instead, under the dormant commerce clause doctrine, there was a “good prospect” that Pennsylvania’s scheme intolerably discriminated against and burdened interstate commerce.61
Justice Barrett dissented.62 In her view, the majority effectively overruled the Supreme Court’s “traditional contacts-based approach to jurisdiction.”63 She would have held Pennsylvania’s consent-by-registration statute unconstitutional because, under the modern personal jurisdiction framework, corporations are subject to general jurisdiction only in states where they are incorporated or maintain their principal place of business.64 Justice Barrett also doubted that registering to do business in Pennsylvania constituted genuine consent to jurisdiction.65 Further, given the Due Process Clause’s interstate federalism interest, Pennsylvania’s statute infringed on other states’ prerogatives to adjudicate cases involving their own citizens and laws.66 Overall, the implied consent on which Pennsylvania’s statute was based was one of the legal fictions that “International Shoe swept away.”67 To the dissenters, the Court ignored its “transformative decision” there, with which Pennsylvania Fire is inconsistent.68 Regardless, Pennsylvania Fire likely would not control because it concerned express consent to jurisdiction while Pennsylvania’s law illegitimately infers it.69
Mallory blesses state statutes that condition foreign corporations’ privileges of transacting in-state business on their consenting to general jurisdiction. But Mallory also reveals entrenched theoretical disagreement between two camps of Justices concerning the effect of International Shoe and its progeny on personal jurisdiction.70 To one camp, International Shoe perfected a revolution that wholly “replace[d]” all that came before.71 To the other, which prevailed in Mallory, International Shoe’s revolutionary character is much overstated.72 This gulf not only explains the fractured opinions in Mallory about whether Pennsylvania Fire controlled, but it also colors the opinions’ disparate treatments of old chestnuts from the personal jurisdiction canon, such as Shaffer v. Heitner73 and Burnham v. Superior Court.74 And Mallory’s competing stories about International Shoe suggest fault lines for fissures yet to come: after Mallory, cases from the pre–International Shoe ancien régime appear freed from the doctrinal dustbin. Those cases may offer traditional answers to unresolved personal jurisdiction questions.
To Justice Gorsuch’s camp, International Shoe built a new edifice on an old house. “[W]hat really happened in International Shoe” is that the Supreme Court authorized “additional road[s]” to jurisdiction over corporations based on their activities in the forum state, even if they were not domiciled, had not consented to suit, and had not been served there.75 As International Shoe was “expanding” personal jurisdiction in specified circumstances, it was not “contracting” it anywhere else.76 As Justice Gorsuch noted, even Shaffer — which abandoned a traditional basis of jurisdiction (a subtype of quasi in rem) for its inconsistency with International Shoe77 — acknowledged that International Shoe amplified state courts’ personal jurisdiction over nonresident defendants.78 Thus, on Justice Gorsuch’s read, International Shoe announced a “novel” form of personal jurisdiction that did not supplant any “traditional ones” such as consent by registration.79 In other words, it overruled nothing. And the progeny of International Shoe that developed the at-home test for general jurisdiction left consent alone, addressing only foreign corporations that “ha[d] not consented” to jurisdiction.80
But to Justice Barrett’s camp, all of personal jurisdiction consists of a series of footnotes to International Shoe.81 Having “settle[d] long-continued and hard-fought contentions,”82 International Shoe and its progeny have inspired close readings, triggering the criticism that the Court reads their words like statutes.83 The Mallory dissent possibly went further in viewing International Shoe as a personal jurisdiction constitution that “swept away” all that came before.84 International Shoe and its progeny thus constitute a fundamental charter for personal jurisdiction with which even the traditional grounds of personal jurisdiction, such as personal service, must comply.85 No wonder that the dissent discounted Pennsylvania Fire, since International Shoe “overruled” prior cases “inconsistent” with itself, and cases predating it “should not attract heavy reliance today.”86 To the dissenters, personal jurisdiction begins and ends with International Shoe and its progeny.87
Shaffer is a tricky case for both camps, but especially for Justice Gorsuch’s. In Shaffer, the Court held that assertions of jurisdiction in rem (over property) needed to meet International Shoe’s minimum-contacts standard, which had previously applied only to assertions of jurisdiction in personam (over the person).88 In particular, the Court held that quasi in rem actions would not satisfy the minimum-contacts test when the underlying property was unrelated to the plaintiff’s claim (sometimes called “Type II” actions).89 The quasi in rem action was a traditional basis of personal jurisdiction, but it did not survive International Shoe.90 The Court concluded that “state-court [personal] jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny” and, in a footnote, purported to overrule prior cases that were inconsistent with those standards.91
On its face, Shaffer’s pronouncement seemed to undercut Justice Gorsuch’s theory in Mallory. Justice Gorsuch responded to this language by focusing on Shaffer’s comment that International Shoe “increase[d] the ability of the state courts to obtain personal jurisdiction over nonresident defendants.”92 To him, Pennsylvania Fire is not inconsistent with International Shoe, and to conclude that International Shoe “discarded every traditional method for securing personal jurisdiction” is to misread Shaffer.93 For her part, Justice Barrett seized on that language, insisting that the Court had “previously abandoned even ‘ancient’ bases of jurisdiction” that were inconsistent with International Shoe.94
But Burnham is much more challenging for Justice Barrett’s side of the gulf. In Burnham, the plaintiff physically served her estranged husband with divorce papers in California, invoking jurisdiction based on personal service (or “tag”).95 In a fractured yet unanimous decision, the Supreme Court upheld the California court’s jurisdiction.96
To Justice Gorsuch’s camp, Burnham stood for the proposition that the minimum-contacts test supplemented, rather than supplanted, the foregoing regime of personal jurisdiction. Justice Scalia’s plurality opinion upheld tag jurisdiction “because it is one of the continuing traditions of our legal system”97 and therefore “unquestionably”98 satisfies the demands of due process. To Justice Gorsuch, then, International Shoe “provided a ‘novel’ way to secure personal jurisdiction that did nothing to displace other ‘traditional ones,’”99 so Mallory’s blessing of traditional consent-by-registration statutes here is the same as Burnham’s blessing of tag jurisdiction there.100
Justice Barrett would take Burnham’s reasoning more literally and read its holding more narrowly. Burnham had described tag jurisdiction as “firmly approved by tradition” and “still favored” among the states.101 Where Justice Gorsuch read those descriptions as atmospheric makeweights,102 Justice Barrett read them as filtering the case’s analysis through an International Shoe sieve, creating a full-blown two-pronged test for determining if traditional bases of jurisdiction comply with traditional notions of fair play and substantial justice.103 Tag jurisdiction met both prongs, so the Burnham plurality held it comported with due process, but Pennsylvania’s consent-by-registration statute met neither.104 On this view, Burnham followed Shaffer in perfecting the personal jurisdiction revolution, sparing only those rare forms of older jurisdiction that somehow comport with International Shoe.
The narrow victory of Justice Gorsuch’s view suggests that the Supreme Court may look to cases from the pre–International Shoe ancien régime to answer unresolved personal jurisdiction questions. If a straightforward application of Pennsylvania Fire can control Mallory’s outcome, then the Court might dig up other fossils in future cases. One such area concerns the limits imposed by the Fifth Amendment105 on the territorial jurisdiction of the federal courts. The Court has never answered whether the Fifth Amendment personal jurisdiction test requires that defendants have “minimum contacts” with the United States in exactly the same way as the Fourteenth Amendment requires that they do with state fora.106 This question arises when federal statutes create extraterritorial causes of action and authorize personal jurisdiction without reference to the long-arm statutes of state courts.107 The courts of appeals have tended to gut the applicability of these federal statutes by limiting the territorial reach of federal courts, and so far the Court has declined to hear those cases.108
But if the Court takes up this question after Mallory, its answer might differ. Now that Justice Gorsuch’s view has prevailed in Mallory, the Court might find that the pre–International Shoe cases Picquet v. Swan109 and Toland v. Sprague110 control. As one scholar and a handful of federal judges have noted, those cases suggest that the personal jurisdiction of the federal courts runs as far as Congress would have it go.111 That holding would sever the twin Due Process Clauses from each other and let Americans injured abroad hale into federal court even those tortfeasors lacking minimum contacts with the United States.112 Then the salient question would be whether Congress authorized worldwide personal jurisdiction in a given statute, subject to a clear statement rule.113
The immediate implication of Mallory’s holding is significant: states do not violate due process by conditioning corporate registration on consent to general jurisdiction.114 And the possible return of the dormant commerce clause to personal jurisdiction doctrine is noteworthy.115 Yet Mallory’s most salient contribution is its clarification of how a slim majority of the Court understands International Shoe: as providing grist for the “construction” of a supplemental doctrinal edifice rather than “tearing open a gulf” between traditional notions of jurisdiction and a new regime.116 The opinions’ competing readings of canonical personal jurisdiction cases reveal this fundamental disagreement on the Court. And by upholding Pennsylvania Fire and the legitimacy of traditional bases of jurisdiction, the Court signals a possible return to cases from the ancien régime when answering unresolved personal jurisdiction questions in the future.