Concretely, what is the most important Supreme Court case this quarter? No it is not Students for Fair Admission Or Moore v. Harper. These constitutional law decisions will affect things that law professors are interested in, but most people will hardly notice. I have long thought that the most consequential decision was also a dormant case: Mallory v Norfolk Southern. This case concerns personal jurisdiction. To sum up roughly, the question posed is whether Pennsylvania can require companies to consent to personal jurisdiction in order to do business in the Commonwealth. In this case, a Virginia resident sued a Virginia corporation for injuries that occurred in Virginia and Ohio. And plaintiff sued in Philadelphia. The offense had no “minimal contact” with Pennsylvania. Personal jurisdiction could only be based on registration law.
I covered this case at my Supreme Court seminar, and we were fortunate to have the attorney for the petitioner (Ashley Keller) and the respondent (Carter Phillips), as well as the amicus (Steve Sachs) who spoke to our students via Zoom. Based on my rough reading of the transcript, I think there are four votes for the plaintiff here, but I’m not sure there are five. And votes here will not align along ideological lines.
In light of recent events, this case has become even more important. In early February, the Norfolk Southern Railway experienced a horrific derailment in East Palestine, Ohio. The incident caused millions of pounds of toxic chemicals to leak into the environment. Thousands of people had to evacuate. The impact of this derailment is difficult to quantify.
Predictably, litigators are lining up across the region to represent those affected. Of course, the question of the ideal forum will arise. And trial attorneys, like state attorneys general, will forum shop. If the Supreme Court approves Pennsylvania’s registration scheme, perhaps some of the plaintiffs will choose to sue Norfolk Southern in a Philadelphia trial court. Or Illinois can choose to adopt a similar plan, Welcome to Cook County, Norfolk Southern! It doesn’t look like the company has any leads in California, but I’m sure they can find a hook.
Mallory has become much more real.