Rocky Rhodes & Andra Robertson on Originalist Arguments in Mallory v. Norfolk Southern
Michael Ramsey
At Prawfsblawg, Rocky Rhodes (South Texas) and Andra Robertson (Case Western), guest blogging: The Mallory Argument on Personal Jurisdiction via Corporate Registration. From the introduction:
... Mallory v. Norfolk Southern Railway Co. [argued to the Supreme Court earlier this month], ... addresses the constitutional limits on states asserting jurisdiction over a nonresident corporate defendant that registers to do business in the state. Under 42 Pa. C.S. § 5301, state courts obtain “general jurisdiction” over a nonresident corporation registering to do business. Mallory claims that this statute supports Pennsylvania’s jurisdiction over his FELA claim against his employer Norfolk Southern Railway because the railroad is registered to business in the state—even though Mallory is a citizen of Virginia, the railroad is incorporated with a then-principal place of business in Virginia (now in Atlanta, Georgia), and his claim arose from his alleged exposure to carcinogens in Virginia and Ohio. The railroad counters that the exercise of personal jurisdiction violates the Due Process Clause and the unconstitutional conditions doctrine. We had a series of posts on this case on Prawfs shortly after certiorari was granted last April (see here, here, and here), and Howard invited us back to report on the oral argument and the briefing in the case. We’ll highlight the primary positions of the parties, the Justices who pushed back, and some interesting tidbits for our fellow jurisdictional aficionados.
On the claimant's historical arguments:
Mallory’s primary argument is that the Pennsylvania statute is constitutional under the original public meaning of the Fourteenth Amendment. His merits brief includes an exhaustive compilation of state statutes during the 1800s tying corporate registration to a state’s adjudicative jurisdiction, with the first of these statutes appearing in the 1820s. This listing is not a surprising strategy for a plaintiff confronting a Court that has a reputation for being sympathetic to business interests while also (at least sometimes) singing the praises of originalism. Such historical archival compilations may become as commonplace in constitutional cases before the Roberts Court as the Brandeis brief was during the Lochner era.
But several Justices questioned the impact of these statutes, as did the railroad. Justice Barrett doubted that all the listed statutes were on point—some involved questions of service of process and others did not authorize all claims against the registering defendant, but rather only claims brought by a resident of the forum. The railroad also argued that most of the statutes were distinguishable and that nineteenth century cases did not support that jurisdiction was appropriate under these statutes when the plaintiff was a nonresident and the cause of action arose outside the forum. Mallory responded that all the statutes were relevant, while admitting that there were very few cases that employed these statutes in “foreign cubed” cases, where neither the defendant nor the plaintiff was a resident of the forum and the events giving rise to the claim occurred outside the forum. The statutes were more commonly applied in “foreign squared” cases, where at least the plaintiff was a resident of the forum. But in response to Justice Alito, Mallory maintained that the existence of the statutes was enough—he did not have to show a tradition of those statutes being applied by the courts to establish original public meaning.
Justice Thomas asked a question that he was able to avoid (by discounting the many proffered analogies to gun restrictions in the Founding and Reconstruction eras) in his opinion this summer in New York State Rifle & Pistol Association v. Bruen—how many state statutes are necessary to establish the original meaning? Mallory responded that was a difficult issue, but thought the compilation of statutes in the brief satisfied the requirement. But that would not be the case, of course, if the Court views the statutes as distinguishable.
...
The railroad, of course, had a different view. Tag jurisdiction against natural persons [ed.: which the Supreme Court approved in Burnham v. Superior Court, a Scalia plurality], the railroad contended, was supported by a longstanding historical tradition, while there was only a smattering of statutes and almost no cases indicating that registration could support general jurisdiction. The railroad maintained that the old service of process statutes referenced in Mallory’s brief were simply not enough. And tag jurisdiction was also different since a person can only be in one state at a time, while a corporation might be coerced to consent to jurisdiction simultaneously in each and every state.
The how-much-practice-is-enough question is a very significant methodological issue for which I think the Justices don't have a clear answer. In my view it necessarily involves a related question about who has the burden of proof -- another very significant methodological issue for which I think the Justices don't have a clear answer.