Mallory v. Norfolk Southern Railway Co. (21-1168)
argument 21-1168Mallory v. Norfolk Southern Railway Co.
Supreme Court of the United States
1h 48m
8 speakers
8 chapters
transcribed 8 days ago
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What is the central constitutional issue in Mallory v. Norfolk Southern Railway?
We will hear argument first this morning in case twenty one eleven sixty eight, Mallory versus Norfolk Southern Railway.
Mr. Keller. Mr Chief Justice, and may it please the Court. As far back as eighteen twenty-seven, states enacted laws like Pennsylvania's, and by eighteen sixty-eight or shortly thereafter, every State in the Union had at least one, and often several, consent by registration statutes. This court unanimously confirmed that such statutes comport with due process over a century ago, and reasoning that's been embraced by jurists from Holmes to Cardozo to Hand to Frankfurter. With history, tradition, and precedent on Mr. Mallory's side, how can my friend challenge Pennsylvania law under the original meaning of due process? By claiming that these statutes were really just about specific jurisdiction based on contacts.
Never mind that specific jurisdiction wasn't a thing in eighteen sixty eight and for decades after the fourteenth amendment was ratified. Anachronistically, importing the principles of international shoe into the ratification generation is my friend's maneuver, exactly what Justice Scalia counseled against in Burnham. That approach is not originalism. It's paying lip service to originalism, treating the doctrine as an infinitely malleable pretext to reach a policy outcome that Norfolk Southern and other big businesses prefer. But originalism is not a pretext. It's a neutral doctrine that aims to faithfully apply our nation's constitution regardless of who benefits. Fidelity to the original public meaning of the Fourteenth Amendment in this case means that the flesh and blood little guy wins and the Fortune five hundred company loses, irrespective of the exaggerated parade of horbals that my friend trots out.
And if those policy considerations did somehow matter, corporations are quite adept at making their views known to state lawmakers, and Congress has tools at its disposal, from removal to preemption if it appears that the sky is falling. There is no need for this court to short circuit the political process in the name of the Constitution. I welcome your questions.
Um Mr. Keller, uh if uh we were to look through history and only find uh a handful of uh uh states that had laws similar to Pennsylvania's, um how would we know when there's enough history to support your uh position?
That's a fair question, Justice Thomas. I don't know what the exact dividing line is, but fortunately here there are many, many states that had laws like Pennsylvania. So I don't think it's close to the line. Perhaps Your Honor is asking about the fact that there aren't a lot of foreign cubed situations that come up in the case law, which is not surprising given the historical modes of transportation. But the text of these statutes is crystal clear. It applies to the foreign cube situation. That's what a lot of the cases say, even though the facts were foreign squared. And it doesn't really matter because we were in a consent based Regime that the facts aren't on all fours. So I think that's a pretty powerful indication that the states meant what they said when they enacted these statutes.
And there are other indications of that. So for example, many states had multiple consent by registration statutes on their books simultaneously. Tennessee, Michigan, and Indiana said that for insurance companies, you've got to consent to generalization. General jurisdiction. But for other companies, other foreign companies, you don't have to do that. You only have to consent to what we would now call specific jurisdiction. Were the legislatures confused? They didn't know that they were using different language? Of course not. They obviously intended for policy reasons to treat insurance companies differently from other foreign corporations. So that's a very powerful indication. That the text of these statutes meant what they said.
My friend does find a handful of cases that say we're not going to give the statutory text its full sweep. We're going to rein it back. The best example of this is Sawyer from the Vermont Supreme Court.
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Chapters
8 chapters
1
What is the central constitutional issue in Mallory v. Norfolk Southern Railway?
0:00–14:40
2
How does the argument rely on historical consent‑by‑registration statutes?
14:40–27:30
3
Why do the parties dispute whether Pennsylvania’s statute constitutes a waiver of jurisdiction?
27:30–39:57
4
What is the role of International Shoe and the minimum‑contacts doctrine in this case?
39:57–53:06
5
How do the Justices frame the question of unconstitutional conditions versus consent?
53:06–1:06:25
6
What are the arguments concerning the Dormant Commerce Clause and market access?
1:06:25–1:18:02
7
How might the Court’s decision affect future state consent‑by‑registration laws?
1:18:02–1:33:48
8
What are the possible implications for corporate versus individual personal jurisdiction?
1:33:48–1:48:12