I was a young professor of civil procedure in 1977 when the Supreme Court decided Shaffer v. Heitner. The year after that decision came down, I wrote an article titled “The End of an Era” where I predicted the eventual demise of “tag” jurisdiction. I was proven completely wrong when the Court in 1990 decided Burnham v. Superior Court, unanimously upholding “tag” jurisdiction but on different theories.
More than 35 years later, in 2014, the Supreme Court decided Daimler AG v. Bauman. I then wrote an article titled “The End of Another Era.” Having learned from my earlier experience not to make “predictions,” in this later article I offered only “observations.” Like other commentators at the time, I raised the question whether registration statutes that exact consent to jurisdiction would offer an alternative basis for general jurisdiction and, if so, under what circumstances.
I am nonetheless shocked by Justice Gorsuch’s majority opinion in Mallory v. Norfolk Southern Railway Co. (joined on the relevant Due Process point by Justices Thomas, Alito, Jackson, and Sotomayor). The decision is a complete circumvention of Daimler (foreign country defendant) and BNSF Railway Company v. Tyrrell (Delaware corporation with principal place of business in Texas), both of which had relied upon Fourteenth Amendment Due Process to prohibit jurisdiction over an out-of-state corporation doing business in the state when the defendant’s activity did not give rise to the claims asserted.
To justify the Court’s conclusion that Due Process was not offended in Mallory, Justice Gorsuch merely said that Daimler and the earlier Goodyear case were not about consent. Justice Gorsuch relied on Justice Scalia’s opinion in Burnham, characterizing Burnham as upholding “traditional methods” for securing personal jurisdiction, and then identifying “consent” as one of those traditions. Of course, Burnham was not about “consent” either. And Justice Scalia wrote for only four members of the Court in Burnham, one of whom (Justice White) did not join the full opinion and wrote separately to explain that “tag” jurisdiction was so widely accepted throughout the country that he could not possibly strike it down on due process grounds. (Note that general jurisdiction registration statutes are not the norm.)