Ann Woolhandler and Michael G. Collins (University of Virginia School of Law) have posted On Making Matters Worse on SSRN. Here is the abstract:
For a time, the modern Court provided greater structure to the law of personal jurisdiction. Justice Ginsburg in Daimler v. Bauman defined limits to general jurisdiction for corporations, confining it primarily to the state of incorporation and principal place of business. And Justice Kennedy’s opinion in J. McIntyre Machinery v. Nicastro systematized prior views of specific jurisdiction in terms of targeting versus foreseeability. The Court undermined such progress toward clarity with its decision in Mallory v. Norfolk Southern Railroad. The Court approved an assertion of jurisdiction under Pennsylvania’s statute requiring submission to general jurisdiction by foreign corporations that register to do in-state business. Justice Gorsuch’s Mallory opinion relied heavily on the Supreme Court’s 1917 decision in Pennsylvania Fire Insurance Co. v. Gold Mining & Milling Co., and he emphasized pre-International Shoe support for consent as a basis for jurisdiction. Gorsuch found backing for his originalist views in the work of Professor Stephen Sachs.
Part I of this Essay considers the Court’s reliance on Pennsylvania Fire, and finds it unjustified. As Justice Barrett detailed, the weight of authority was against general jurisdiction by registration. What is more, dormant Commerce Clause decisions had significantly undermined the decision. Part II addresses the purported originalist justification for retaining Pennsylvania Fire by addressing the work of Professor Sachs. While the categories of presence and consent had traditional support, it is only by applying those categories at a high level of generality that one can claim support for the Mallory result. Part III addresses why the dormant Commerce Clause should disallow general jurisdiction by registration. Part IV addresses whether Justice Gorsuch’s use of presence and consent would represent improvements over the International Shoe framework.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum