Comments on: Case of the Day: Mallory v. Norfolk Southern Railway https://lettersblogatory.com/2023/06/28/case-of-the-day-mallory-v-norfolk-southern-railway/ The Blog of International Judicial Assistance Sun, 10 Nov 2024 03:25:31 +0000 hourly 1 https://wordpress.org/?v=6.9.4 By: Ted Folkman https://lettersblogatory.com/2023/06/28/case-of-the-day-mallory-v-norfolk-southern-railway/#comment-5922 Wed, 28 Jun 2023 14:55:56 +0000 https://lettersblogatory.com/?p=31816#comment-5922 In reply to Linda Silberman.

Linda, thanks for the comment! You are in good company with Chief Justice Roberts and Justices Kagan, Kavanaugh, and Barrett. I think you’re right that the rule of this case doesn’t really line up with the rule in many other jurisdictions, but neither does our rule of “tag jurisdiction.” I tend to agree with Justice Gorsuch that if we aren’t up in arms about the one, it’s hard to see why we should be up in arms about the other.

]]> By: Linda Silberman https://lettersblogatory.com/2023/06/28/case-of-the-day-mallory-v-norfolk-southern-railway/#comment-5920 Wed, 28 Jun 2023 13:03:59 +0000 https://lettersblogatory.com/?p=31816#comment-5920 I found the Supreme Court decision shocking and the praise for it unwarranted. It is a complete circumvention of Daimler, which the majority doesn’t really deal with except to say it is not about consent. And neither is Burnham about consent, which most scholars thought would be overruled after Daimler and instead it is the central theme of the opinion. This is the kind of forum shopping that Daimler sought to limit, although Daimler involved a foreign defendant. Even Justice Sotomayor did not dissent in Daimler but thought it should be decided on grounds of “unreasonableness”, which the majority in Daimler did not think applied in general jurisdiction cases. If there was to be course correction at all, perhaps it could be based on the existence of an office (which the railroad had here) and which would lend greater voluntary control to defendants as to when they might be subject to general jurisdiction. But the Supreme Court announced a more extreme rule in Daimler. Prior to Daimler, I had urged a bricks and mortar approach as a correction to broad general jurisdiction (existence of an office is the English rule for general jurisdiction). Almost no country has the broad doing business jurisdiction that the U.S. had pre-Daimler and is now resurrected in the form of this fictional consent. Maybe foreign defendants just won’t register so it won’t really affect the transnational cases.
But this kind of forum shopping even re U.S. defendants is unfortunate. We should have fixed specific jurisdiction and not returned to general jurisdiction via mandated fictional consent by states. Maybe we will see this issue revisited in the form of a commerce clause challenge per Alito, but I think it was a due process violation as the compelling dissent explained.
Linda Silberman, Clarence D. Ashley Professor of Law, Emerita, New York University School of Law

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