Who Decides: Questions of State Power, Corporate Power, and Originalism at Stake in Mallory v. Norfolk Southern Railway
The Supreme Court heard arguments on November 8th in a significant jurisdiction case: does the Fourteenth Amendment’s Due Process Clause prohibit Pennsylvania from requiring consent to general jurisdiction in order to do business there?
While the most recent jurisdiction cases address the limits on state jurisdiction over unconsenting defendants, Mallory raises a larger set of questions and has sparked competing originalist-focused briefing. How might due process limits on jurisdiction apply when consent has been granted, albeit grudgingly? What is the original understanding of state power over corporate actors, and of state authority to restrict access of foreign corporations? And to what extent are states constrained by the Fourteenth Amendment, Commerce Clause, or a doctrine of unconstitutional conditions?
Sean M. Marotta, Partner, Hogan Lovells.
Prof. Stephen E. Sachs, Antonin Scalia Professor of Law, Harvard Law School.
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit.